- (1.) S. K. Agarwal, J.- These two appeals arose from a common judgment dated 1-2-1996 passed by learned IInd Additional Session Judge, Jaunpur Sri R. A. Kesarwani. Appellant Pushkar Pandey was convicted and sentenced to life imprisonment under Section 302 IPC under Section 307 IPC to ten years RI and a fine of Rs. 3,000 under Section 323/34 IPC to six months RI under Section 342/34 IPC to six months RI and under Section 27 Arms Act to three years RI and a fine of Rs. 1000. Appellant Prabhakar Pandey was convicted and sentenced under Section 302/34 IPC to life imprisonment under Section 307 IPC to 7 years RI and a fine of Rs. 3000 under Section 323/34 and 342/34 IPC to six months RI each respectively. He has been convicted under Section 30 Arms Act to six months RI Appellant Karunakar Pandey was convicted and sentenced to life imprisonment under Section 302/34 IPC under Section 323/34 IPC to six months RI and under Section 342/34 IPC six months RI. All the sentences were directed to run concurrently. They were held to pay compensation under Section 357 (3) IPC all the appellants were liable to pay a sum of Rs. 1,50,000 as compensation. Out of which Pushkar Pandey is to deposit a sum of Rs. 1,00,000 Karunakar Pandey and Prabhakar Pandey were fastened with the liability to pay a sum of Rs. 25,000 each towards the compensation amount. The amount so deposited shall be payable to Raj Narain Singh informant.
(2.) THE facts giving rise to the offence are alleged in the written report submitted at police station Mariyahun by Raj Narain Singh for an incident that had taken place at about 8. 30 a. m. on 24-5-1994. THE first information report was lodged at about 9. 10 a. m. THE distance of the police station from the petrol pump being 7 kms north. THE story in brief is that the informant is a resident of Village Pravaspur, Police Station Mariyahun, district Jaunpur. On the date of the occurrence Sunil Singh alias Guddoo, resident of Village Vasnari alias Vasvadi, Police Station Kerakat, district Jaunpur visited informant for the bidai of his sister who was married to the informant's son Rakesh. On 24-5-1994 in the evening this bidai was sought in connection with a marriage in his family. On the date of the occurrence i. e. 24-5-1994 at about 8. 30 a. m. Sunil Singh went to the petrol pump know as Dharamraj Service Station Pali for taking petrol in his scooter. In the meantime the informant along with Adya Prasad Singh of his village came on the road in front of the petrol pump on his way to go to the examination center where they were to check the answer books of the board exmainations. THEy saw that a quarrel between Prabhakar and Sunil Singh was gong on at the petrol pump. In the meantime Prabhakar Pandey, Karunakar Pandey and Pushkar Pandey started dragging Sunil Singh to their show room. He was given beating also in the process. When the informant and his companions tried to prevent them they were greeted with abuses. Prabhakar Pandey exhorted his companions to shoot the informant. On this Pushkar Pandey fired a shot at him with his DBBL gun. THE informant and his companions retreated to safety. THE gunshot report attracted his sons Rajesh Singh and Brijesh Singh, who emerged out from the Village pathway by then. As soon as they reached the petrol pump Prabhakar Pandey and Karunakar Pandey challenged them also and exhorted Pushkar Pandey to kill the two. Pushkar Pandey immediately opened fire on them. THE fire shots discharged by Pushkar Pandey struck his sons who fell down and died on the spot. THE incident was witnessed by Ramjit Singh, Virendra Singh, Bholanath Singh and others apart from the informant and Adya Prasad Singh. In the meantime the informant prepared a written report. It was lodged at the abovesaid police station. The first information report was registered by PW-8 who proved the written report, check first information report and relevant General Diary entries Ext. Ka-11 and Ka-12 on the record. PW-11 investigated the case and submitted the charge-sheet. Panchayatnama on the bodies of the two deceased was prepared by Indresh Yadav SI. He also is the Investigating Officer (hereinafter referred to as IO) of the case under Arms Act. PW-14 R. N. Pandey is the Sub-Inspector who had arrested the accused persons at 9. 30 a. m. from their show room and recovered PW-2 Sunil Singh from there. He lodged the arrested persons into the police lock-up. H. C. Ramanuj Pandey has taken the bundle of the recovered articles and the guns to the police station. PW-4 Dr. M. L. Srivastava has examined the injuries of Sunil Singh PW-2. Dr. C. K. Gupta conducted the post-mortem examination on the person of the two deceased. Anwar Jamal PW-9 is the ballistic expert. This is in nutshell the entire formal evidence. Apart from them prosecution examined three eye-witnesses as well. Appellant Prabhakar Pandey has denied the prosecution version and alleged that he was not present at the post. He is innocent and has been falsely roped in the case. Appellant Karunakar Pandey had stated that on the date of incident he was student of M. A. Final (Philosophy) and was studying in Gyanpur. There was a holiday on 23-5-1994. He came to the petrol pump but at the time of the occurrence he had gone to evacuate. When he came back after evacuation he was arrested by the police. No recovery of any weapon was actually effected from them. The weapons shown against them belong to the deceased persons and Sunil Singh. Coming to the statement of Pushkar Pandey recorded under Section 313 Crpc. We find that he had denied the manner of the incident and has stated that the witnesses are deposing falsely and a false case was foisted against him in order to conceal the truth and the real manner of the incident from the Court. In response to question No. 68 he has adverted that he will file his written statement under Section 313-A Crpc. His written statement was filed which is available at page No. 148 of the paper book. According to this appellant Pushkar Pandey was present at the petrol pump. His servant Surendra Kumar alias Munnu was giving petrol to only those persons who had deposited the money for taking petrol and obtained the slip for it from the counter. On 24-5-1994 in the morning Brijesh Singh visited the petrol pump and tried to take petrol forcibly without depositing the price and without obtaining slip from him. The servant told him that there is no petrol. Brijesh Singh snatched the Nozzle from him and tried to take petrol himself. The servant retrieved the Nozzle from him and pushed him aside. Brijesh Singh started abusing his servants. The servant asked him to desist from doing so. Brijesh Singh become infuriated. He left the place extending a threat that he will return with his brother Rajesh Singh and then see them. Little afterwards Brijesh Singh and Rajesh Singh with Katta arrived at the spot on a motorcycle. They were accompanied by some other boys including Sunil Singh, who were also armed with Kattas, gun and bombs. They entered into the compound of his petrol pump. These persons were extending threats. Rajesh Singh and Brijesh Singh exhorted his companions to kill all of them, commit loot and set the petrol pump a fire. They were all advancing menacingly to the show room. The fire made by Brijesh Singh Rajesh Singh and their companions struck the eastern side of the glass of his show room. His companion had also hurled bombs towards the show room. It was made of fiber glass. They entered into the show room of the petrol pump and started committing loot of the cash. In the meantime Rajesh Singh and Brijesh Singh and his companions brandished their Katta and revolver towards the servant. In order to save their property and his life the servant fired from the licensed double barrel gun of Prabhakar Pandey. Shots hit Rajesh Singh and Brijesh Singh. In the melee Sunil Singh fell down on the ground. The servant after resting the gun with eastern wall took to his heals and was not traceable since then. His servant Surendra Kumar son of Ram Chandra is a resident of village Surhan, Police Station Chauri district Bhadohi. At the time of incident Rs. 72,000 was lying in cash in the vallet of show room. The police has removed the registers including the sale and stock register, attendance and salary register of the servant etc. in order to conceal the truth. The complainant and the police have concealed his servant some where deliberately in order to avoid the correct version of the incident from coming before the Court. Major portion of the cash was looted by the companions of the deceased persons and the police too removed the remainder. The licensed gun of Prabhakar Pandey was not recovered from his possession but was found resting with the outer eastern wall of his show room. No weapon was recovered from the possession of Karunakar Pandey. The weapons which the police claimed to have recovered from the lower drawer of his counter belong to the two deceased and Sunil Singh. He did not open any fire upon him. They did not know Sunil Singh from before. The facts alleged in the first information report and evidence about Sunil Singh's coming for taking petrol is a false story and was culled out by the police in collusion with Raj Narain Singh. He was never retrieved from the show room. Sunil Singh's father was a Sub-Inspector in the police department which fact they came to learn much later. With his connivance the police has cooked up this case in an illegitimate manner against the appellants. The first information report was ante-dated and ante-timed. His report was not taken down despite the assurance given to him by the police. Thus, from his written statement it is apparent that he is denying the prosecution case almost in its entirety. According to him, the prosecution side was the aggressor and his servant opened fire in order to protect the petrol pump, its property and the appellants from their assault by the miscreants who were many in number armed with gun, revolver and country made pistol and bombs. They had indulged according to him in the looting of his cash. His allegation is that the police have colluded with the informant and had not registered their first information report. The version of the prosecution against them was ingenious and false. The police deliberately did not register their version to benefit the prosecution.
(3.) IT is contended by learned Counsel for the appellant that original first information report is not the hand work of the informant. IT apparently was prepared by some one else and the informant only signed it. Different types of pens were used in its transcription. Even the hand writing also differs. IT is also contended that the injuries of the two deceased indicate that firing was resorted to from beyond 2 yards and within 3 yards. The stomach of both the deceased were empty and intestines suggest that they had evacuated. Injury of Sunil Singh requires close scrutiny. IT is not genuine. Firing was made by the servant of petrol pump. No use of any revolver, Katta or gun recovery of which was alleged, is borne out form the medical evidence. Even the country made pistol claimed to have been recovered from the drawer of the counter was not used in the offence. In the nutshell the truthfulness of the story of the prosecution has seriously been challenged. IT is further alleged that the conduct alleged against all the appellants is wholly improbable. Many houses and shops are in the vicinity of the place of the occurrence but none of them were examined despite presence of these persons being admitted. Raj Narain Singh has not suffered any injury and had not made any attempt to separate the parties. IT is most unnatural on his part if he was present there. Learned AGA in response submitted that it is a broad daylight incident. The report was promptly lodged by the father of the deceased. Presence of the father and other witnesses is not open to any challenge. They are the probable witnesses. The medical evidence corroborates the prosecution story. The presence of injured witness further lends assurance to the truthfulness of the prosecution version. In order to test the rival contentions we propose to examine first the medical evidence. Pw-7 Dr. C. K. Gupta had conducted the autopsy on the person of the two deceased. The post-mortem examination of Brijesh Singh is Ext. Ka-9. He had suffered a solitary gun shot wound 5 cm x 5 cm x cavity deep on the left side chest 6 cm below and internal to left anterior. Auxiliary bone and 5 cm internal to left nipple, margin of the wound are irregular. No blackening, scorching or tattooing were noted. Direction of wound is toward right side chest. No exit wound was found. No other injury over the body as mentioned by SHO in photo Nash was found by the doctor. The internal examination of thorax shows fracture of 6th and 7th ribs. 8th rib in pieces under injury No. 1. Pleura was pierced. Two wadding and metal pieces were recovered from the area. Right lung was pierced and six metallic shots were recovered from there. From the left lung 7 metallic shots were removed. Pericardium was also pierced. Both ventricles were pierced through and through 5 metallic shots were recovered from the vessel. Large vessels were found empty. The cause of death is excessive haemorrhage and shock as a result of ante mortem injuries on vital organs. Thus, it is apparent that this deceased has suffered only one gun shot injury and in all 21 metallic shots (small) and 3 pieces of wedding material were recovered from the affected parts of the body.;