ANIL KUMAR SHARMA,J. - (1.) IN these two connected appeals, the appellants have challenged the judgment and order dated 08.11.2005 passed by Sri Jaisheel Pathak, the then Additional Sessions Judge, (Court no.5), Ghaziabad in S.T. No.127 of 1999 State Vs. Tejveer Singh and others (Crime No.251 of 1998), under sections 302 and 307 IPC, P.S. Masoori, district Ghaziabad, S.T. No.139 of 1999 State Vs. Tejveer Singh (Crime No.560 of 1998), under section 25 Arms Act, P.S. Kavi Nagar, district Ghaizabad, S.T. No.140 of 1999 State Vs. Satveer Singh (Crime No.561 of 1998), under section 25 Arms Act, P.S. Kavi Nagar, district Ghaziabad and S.T. No.141 of 1999 State Vs. Sompal (Crime No.562 of 1998), under section 25 Arms Act, P.S. Kavi Nagar, district Ghaziabad, whereby each of the appellants have been convicted for the offence punishable under section 302 IPC and sentenced to undergo imprisonment for life and fine of Rs.10,000.00 each with default stipulation. Each appellant had also been convicted and sentenced to rigorous imprisonment for one year and fine of Rs.1000.00 each with default stipulation under Section 25 of the Arms Act.
(2.) THE prosecution story in nutshell is that on 7.10.1998 at 9.30 a.m. complainant Sudesh Kumar son of Sri Baleshwar Yadav, resident of Village Raghunathpur, Police Station Masoori, district Ghaziabad submitted a written report scribed by Mahavir Singh Yadav, resident of Village Raghunathpur in P.S. Masoori, district Ghazibad wherein he stated that his elder brother Rajendra Singh is serving the Delhi Police. On 7.10.1998, Rajendra Singh was going to Delhi on his scooter along with complainant. Co-villager Aman Singh and Ram Saran, were also coming on their motorcycle and when they reached in front of Azad Memorial Inter College, Qasba Dasna at about 9.30 a.m. Tejveer Singh and Satveer Singh, sons of Rohtas and Sompal son of Sukhpal of their village having illicit weapons came from behind on black colour Bullet motorcycle No.DL-45-9303 and intercepting the complainant and his brother, all the three accused persons with intention to kill opened indiscriminate firing on them. In order to save himself Rajendra Singh ran towards the field, but the accused persons killed him by firing gun shots and he instantaneously died on the spot. The report further stated that the complainant saved himself by entering into the shop of Babu Mistri and closed the door. The accused persons also attempted to kill him, as they were having old enmity with them. On account of broad day indiscriminate firing terror was created in Qasba Dasna and the passersby leaving their shoes, chappals and bicycle at the scene of occurrence ran hither and thither. The people closed their houses and shops. The accused persons firing in the air made their escape good on their motorcycle towards Ghaizabad. Leaving the dead body of his brother at the spot. the complainant submitted his written report in Police Station Masoori. On the basis of this report a case under sections 302 and 307 IPC at Crime No.251 of 1998 was registered against the accused persons and the investigation of the case was taken over by Sher Bahadur Singh, Station Officer PW-7. He reached at the spot after interrogating the complainant at the police station and collected samples of plain and blood stained earth. He also seized one empty cartridge of 315 bore, a pair of shoes and two pairs of chappals as also scooter No. DL-35P- 1055 from the spot in presence of witnesses and prepared separate memos. Site plan was also prepared at the instance of the complainant. In the meantime, the Investigating Officer received information through R. T. Set that all the three accused persons have been apprehended by Kavi Nagar police, so he reached there and obtained the copy of recovery memo and copy of G.D. report No.25 of 12.15 p.m. dated 7.10.1998 and also interrogated the accused persons. From the memo regarding arrest of the accused and the recovery of illicit fire arms and ammunitions it was revealed that after getting information at 10.00 a.m. from City Control Room that three miscreants have fled away by firing shots and killing a constable of Delhi Police on motorcycle No.DL-45- 9303, the police party of police station Kavi Nagar were checking in the area and when they reached near Rajapur phatak at about 10.30 a.m. they saw three persons coming on a bullet motorcycle from the side of Atma Steel. The police party in a jeep chased them. After challenge the accused persons were apprehended by the police at about 10.30 a.m. On interrogation they introduced themselves as Tejveer Singh son of Baleshwar Singh and from his possession a country made pistol of 315 bore having an empty cartridge in the barrel and a live cartridge from his pant was recovered. The second one told his name as Satveer Singh son of Rohtas, resident of Village Raghunathpur and on personal search a country made pistol and two cartridges were recovered. The third one told his name as Sompal son of Sukhpal, resident of Village Raghunathpur and on his personal search a country made pistol of 315 bore and from the pocket of pant two cartridges of 315 bore were recovered. All the three accused allegedly confessed to have killed Rajendra Singh, son of Baleshwar Singh, resident of Village Raghunathpur, P.S. Masoori, district Ghaziabad at about 9.30 a.m. near Azad Memorial Inter College, Qasba Dasna. The recovery memo was prepared and its copy was given to the accused persons and their signatures were obtained on it. On the basis of the alleged recovery the Kavi Nagar police registered separate cases against three accused persons at Crime No. 560 of 1998 to 562 of 1998 u/s 25 Arms Act.
(3.) THE inquest on the cadaver of the deceased was performed at the spot on 7.10.1998 from 10:40 a.m. and the same was sent in a sealed cover for postmortem examination along with usual papers. Dr. L.M. Upadhyay, PW 3 conducted autopsy upon the cadaver of the deceased on 7.10.1998 at 4.00 p.m. He found that 30-years old deceased was having average built body. Rigor mortis was present and decomposition has not started. He found the following ante-mortem injuries on the person of the deceased. i) Gun shot wound of entry 2 cm. x 2 cm. on left side of temple region 2 cm. in front of upper part of left ear. There is blackening, tatooing, charring present around the wound, whole of left side, front of face. On exploration, the wound is directed towards right posteriorly lacerating the underneath scalp and fracturing the underneath skull bone and lacerating the brain matter. Haematoma present. The wound is communicating with the wound of exit measuring 2.5 cm. x 2 cm. on the rightside back of skull, 3 cm. behind the upper part of right ear. ii) Gun shot wound of entry 2 cm. x 2 cm. on the back of right shoulder, 2 cm. above the poster or axillary fold. There is charring of the wound. On exploration, the wound is directed towrds left lacerating the underneath muscles, tissues, blood vessels and apex of the right lung pleaura. One mettalic bullet recovered near the cervical vertebra which is sealed. Altered blood present in right chest cavity. In internal examination the doctor found that the right side heart of deceased was full, while the left was empty, stomach was empty, gases and faecal was matter present in small and large intestines. In the opinion of the doctor the deceased suffered death about half day before due to coma as a result of ante mortem gun shot injury over the skull. The injuries of the complainant were examined by Dr. R. R. Tyagi PW- 10 in District Hospital, Ghaziabad on 8.10.1998 at about 2.40 p.m. and he found the following injuries on his person : (i) Abrasion scabbed � x 1/2 cm. In front of left knee. (ii) Abrasion scabbed 2 x 2 cm. placed 1.5 cm. below and outer to Injury No.1. (iii) Scabbed abrasion 1.5 x � cm. placed 7.5 cm. below and medial to Injury No.2. The patient complained for pain in chest. Sound opinion of the doctor was- injury was simple and was caused by hard blunt object. Duration- About one and one fourth day. The Investigating Officer interrogated the witnesses and after completing the same submitted the chargesheet against the accused persons. Kavi Nagar police through SI Anurag Prakash Dixit PW-11, investigated the aforesaid three cases under section 25 of Arms Act and submitted charge-sheets against all the accused separately. Sanction for the prosecution of accused persons was obtained from District Magistrate, Ghaziabad on 22.11.1998.;