Saumitra Dayal Singh, J. - (1.) Heard Sri Ambrish Kumar Kashyap, learned counsel for the appellants and Sri Ankit Srivastav, learned AGA for the State-respondent.
(2.) (i). The appellants Rampal Singh, Udaibhan and Chandrabhan filed the present appeal against the common judgment and order dated 05.10.2005 passed by Sri Arvind Kumar Singh, Additional District and Sessions Judge/Fast Track Court No. 2, Mainpuri, in Sessions Trial No. 411 of 2012 (State Vs. Rampal Singh & Udaibhan) and Sessions Trial No. 128 of 2004 (State Vs. Chandrabhan). By that judgment and order, the appellants - Rampal Singh, Udaibhan and Chandrabhan were convicted for offences under Sections 147, 148, 307/149 and 302/149 IPC. Upon conviction, for the offence under Section 147 IPC each of the appellants was sentenced to six months' imprisonment. Upon conviction for the offence under Section 148 IPC, each of the appellants was sentenced to one year's imprisonment. Upon conviction for the offence under Section 307 read with Section 149 IPC, each of the appellants was sentenced to ten years' rigorous imprisonment together with fine Rs. 3,000/-. In the event of non-payment of fine, they were to undergo further imprisonment of one year. Upon conviction for the offence under Section 302 read with Section 149 IPC, each of the appellants was sentenced to imprisonment for life and fine Rs. 5,000/-. In the event of non-payment of that fine, the appellants were to undergo further imprisonment of one year and six months. 2(ii). Upon the present appeal being filed, appellant no.1-Rampal Singh (hereinafter also referred to as the 'deceased appellant') was enlarged on bail by order dated 24.10.2005 whereas the bail application of the other two appellants was rejected. During the pendency of this appeal, appellant no.1-Rampal Singh died and the appeal filed by him was declared to have abated, vide order dated 13.12.2019. Appeal filed on behalf of appellant no.3-Chandrabhan (hereinafter also referred to as the 'appellant granted remission') also did not survive as he was granted remission by the State Government. It was dismissed as not pressed, vide order dated 07.10.2020. Thus, the present appeal survives and has been heard on behalf of appellant no.2-Udaibhan.
(3.) (i). The prosecution case is that a First Information Report (Exhibit Ka-4) (hereinafter referred to as the FIR), in Case Crime No.63 of 2001, under Sections 147, 148, 149, 307 and 302 IPC, was lodged on 11.07.2001 at 11:20 a.m., at Police Station-Kurra, Sub-District-Karhal, District-Mainpuri, by Sureshpal Singh (PW-1) , son of Vishwanath Singh, upon a written application submitted in his handwriting. The FIR disclosed : on 10.07.2001 at 10:30 a.m., the first informant was sitting on a cot under a shed/'Chhappar' outside his house while his brother Devendra Singh along with Harvendra @ Tika, Chandra Pratap Singh and Shiv Vir Singh were sitting on a raised platform/'Chabutra' under a Neem tree, in front of his house, adjoining a public pathway running in the North-South direction. At about 10:30 a.m., the deceased appellant (appellant no.1 herein), Udaibhan and Chandrabhan (both sons of Mewaram), Mewaram (father of Udaibhan Singh and Chandrabhan) and Shailendra Singh @ Kintoo reached there on foot from the South side of the public pathway. Rampal Singh (deceased appellant) was armed with his licensed rifle, Chandrabhan with his double barrel gun and the others with illicit, single barrel guns. They fired indiscriminately at Devendra Singh, Harvendra Singh @ Tika, Chandra Pratap Singh and Shiv Vir Singh. Devendra Singh and Harvendra Singh @ Tika died on the spot, as a result of the firearm injuries suffered by them. Upon hearing the gun fire, besides the first informant, Makrand Singh, Ram Saran, Harendra Singh, Virendra Singh and Rajarshi Vir Singh reached the spot and witnessed the occurrence. Thereafter, the assailants fled - taking the same path, and in the same direction they had come from i.e. South. He also disclosed that the assailants bore old animus. The bodies of Devendra Singh and Harvendra Singh @ Tika were stated to be lying at the place of occurrence. 3(ii). Vide Exhibit Ka-26 , drawn on 11.07.2001, the Investigating Officer (I.O.) obtained and sealed, a sample of plain earth and blood soaked earth obtained from the Crime Scene, in the presence of Ram Saran and Ram Ratan. A second sample of plain earth and blood soaked earth was obtained and sealed from the Crime Scene by the I.O. It was marked as Exhibit Ka-27 . Vide Exhibit Ka-28 , the I.O. recovered six empty cartridges of 12 bore caliber, bearing a red mark at the base and the marking 'Shaktiman 12 Express'; 4 empty cartridges of 12 bore with a marking KF 12 00 (on one) and KF 12 01 (on other three) and; one empty cartridge of .315 bore, with a marking 9 MM KF 00. 3(iii). It also appears, during the investigation, the house of Rampal Singh (deceased appellant), Mewaram, Chandrabhan, Udhaibhan and Shailendra Singh @ Kintoo were searched. The search memos are Exhibit Ka-29, Ka-30 and Ka-31 . However, no recoveries were made as a consequence of that search. 3(iv). The 'Panchayatnama' with respect to the dead body of Devendra Singh (Exhibit Ka-09) was prepared on 11.07.2001. It bears the FIR details including Case Crime No.63 of 2001. However, there is an overwriting as to the time of the FIR being lodged. The over writing appears to read 11:20 a.m. As to the time of the 'Panchayatnama' being prepared, it is disclosed to have started at 12:10 p.m. on 11.07.2001 and completed at 13:10 p.m. on the same day. Similarly, the 'Panchayatanama' for the dead body of Harvendra Singh @ Tika (Exhibit Ka-8) was also prepared on 11.07.2001. It also bears the full details of the FIR, being Case Crime No.63 of 2001. In this 'Panchayatnama' also there is an overwriting as to the time of the FIR being lodged. It reads 11:20 a.m. As to the time of that 'Panchayatnama' being prepared, it is disclosed to have started at 13:20 p.m. on 11.07.2001 and completed at 14:20 p.m. on the same day. 3(v). The postmortem examination report of Devendra Singh (Exhibit Ka-6) reveals, it was conducted at the District Hospital Mainpuri at 1:30 p.m. on 12.07.2001. It records the following ante-mortem injuries: "(1) Wound of entry 5 cm x 3 cm x cranial cavity brain matter coming out of wound on occipital. (2) Wound of entry 2 cm x 1 cm x muscle deep on back side of chest axillary fold. (3) Wound of exit 3 cm x 1 cm on left shoulder 6 cm medial to top of left shoulder continuous to Inj No. (2). (4) Wound of entry 1.5 cm x 1.5 cm on low back side at level L-4 vert. (5) Gutter shaped firearm wound 2 cm x 1 cm muscle deep on lat. Side of prox. Phalanx of Rt index finger. (6) Gutter shaped firearm wound 8 cm x 5 cm muscle deep on postero lat/lt firearm 2 cm elbow directed shown. (7) Wound of entry three, in area 8 cm x 10 cm over left chest near left nipple." 3(vi). Similarly, the post mortem examination report of Harvendra Singh @ Tika (Exhibit Ka-7) reveals, it was conducted at the District Hospital Mainpuri at 2:00 p.m. on 12.07.2001. It records the following ante-mortem injuries: "(1) Wound of entry 9 cm x 5 cm x oral cavity deep mid chin to floor to Rt side hard pellet fractured mandible floor of mouth. Blackening present. (2) Wound of entry 3.0 cm x 2 cm on left sub-clavicular region. (3) Wound of exit 3 cm x 2 cm from left side back 4 cm lateral T-1 mid-line continuous to inj. No. (2). (4) Wound of entry 3 cm x 2 cm just adjacent and lat to inj. No. (2) on left side chest fractured Lt clavicle. (5) Wound of entry 4 cm x 3 cm on back Rt thigh just below glatier fold Fractured mandible and maxilla Rt side and base of Ant. Cranial fossa and left clavicle." 3(vii). The postmortem report re Devendra Singh also records recovery of three pellets from left thoracic wall and it also records placing in double sealed envelopes, cardboard-1, distorted metallic bullet-1, pellets-25 that were also recovered during the post mortem examination. Similarly, the post mortem report re Harvendra Singh @ Tika records recoveries of pellets from left shoulder to left chest. It further records placing in a sealed envelope - cardboard-1 and 21 pellets recovered from the dead body of Harvendra Singh @ Tika. Both reports record the cause of death as 'Coma' due to ante mortem injuries. The above postmortem examinations were conducted by Dr. R.D. Pandey (PW-6) - on the dead body of Devendra Singh at 1:30 p.m. and on the dead body of Harvendra Singh @ Tika at 2:00 p.m., on 12.07.2001. 3(viii). It is the further case of the prosecution that in the incident, Chandra Pratap Singh (PW-3) suffered injuries for which he was examined on 11.07.2001 at about 7:45 p.m. by Dr. R.P.S. Chauhan (PW-4) . In that examination (Exhibit Ka-2) , the following injuries were reported: "1) Fire Arm wound of entry 0.3 cm x 0.3 cm x skin deep - left side of chest clotting blood.Kept HO Adv X Ray. 2) Fire Arm wound of entry over to lt arm upper in area 16 cm x 4 cm Size 0.3 cm x 0.3 cm x skin deep. Kept UO Adv X Ray. 3) Lacerated wound 1.5 cm x 0.5 cm x bone deep on left wrist part clotted blood present. Kept UO Adv X Ray. 4) Fire Arm wound of entry 0.3 cm x 0.3 cm x skin deep on back of left hand. Clotted blood present. Kept UO Adv X Ray. 5) Lacerated wound 2 cm x 0.5 cm x bone deep on middle side of Rt leg 8 cm below knee. Kept UO Adv X ray. 6) Lacerated wound 1.5 cm x 0.4 cm x bone deep on middle aspect of Rt leg 0.5 cm below to Inj No. 5. Clotted blood present. Kept UO Adv. X Ray. 7) Multiple abrasion over Rt Leg size 0.2 cm x 0.2 cm. 8) Multiple abrasion over Rt thigh size 0.2 cm x 0.2 cm. 9) Pin Head abrasion middle aspect of Rt thigh multiple in number size 0.1 cm x 0.1 cm." 3(ix). Similarly, the injured Shiv Vir Singh (PW-2) was also examined by Dr. R.P.S. Chauhan (PW-4) at 7.55 pm on 11.07.2001 (Exhibit Ka-3) . The following injuries were reported: "Three lacerated wounds at back of Rt thumb of Size 0.5 cm x 0.2 cm x muscle deep; 0.6 cm x 0.2 cm x muscle deep and; 1.5 cm x 0.2 cm x skin deep xxxx injury of nail of thumb. Clotted blood present. Kept UO Adv X Ray" The injury reports of Chandra Pal Singh and Shiv Vir Singh are Exhibits Ka-2 and Ka-3 , respectively. 3(x). Initial investigation in the case was carried out by the I.O. - Sri M.P. Singh Nagar. Upon his transfer from Police Station-Kurra, the investigation was transferred to the Sub Inspector Surendra Nath (PW-7) who completed the investigation. Sri M.P. Singh Nagar died before leading any evidence at the trial. Sub-Inspector Surendra Nath (PW-7) proved the investigation. 3(xi). Upon completion of the investigation and upon submission of the Charge Sheet, vide order dated 22.01.2003, charges were framed against Rampal Singh (deceased appellant) and Udaibhan - for offences under Sections 147, 148, 307 read with Sections 149 and 302 read with Section 149 IPC. Similar charges were framed against Chandrabhan by a separate order dated 22.03.2005. Both trials were clubbed. To the charges thus framed, all the appellants pleaded not guilty. Thus the trial commenced. ;