VINOD PRASAD J. - (1.) IN this cluster of appeals, half a dozen appellants namely Kamlesh Dubey (A-1), Arun Kumar Dubey (A-2) Guddu Yadav @ Bhartendu Yadav (A-3), Rakesh Bharti (A-4), Neeraj Misra (A-5) and Pravesh @ Bablu (A-6) have challenged legality and sustainability of their conviction U/S 148,307/149 and 302/149 I.P.C. and imposed sentence of 2 years R.I. for the first count, 10 years R.I. with fine of Rs. 10000/= and in default of payment of fine to undergo 6 months further R.I. on the second count and imprisonment for life and a fine of Rs. 10000/= and in default of payment of fine to serve 6 months additional R.I. On the last count, through impugned judgment and order dated 18.4.2007, passed by Additional Sessions Judge, Court No.1, district Sonbhadra, in two connected Sessions Trial Nos. 120 of 2000, State versus Neeraj Misra and others and S.T. No. 121 of 2000, State versus Nirbhaya Shankar Tiwari and others, (both the trials relating to crime number 43 of 98, P.S.Ghorawal, District Sonbhadra). By the same judgment learned trial judge has acquitted other six accused namely Nirbhaya Shankar Tiwari, Ayodhya Prasad Pathak, Rajnish @ Turra, Pramod Pandey, Trinayan Dubey, and Rakesh Kumar Misra against which informant Nagesh Kumar Misra has preferred Criminal Revision No. 1387 of 2007, Nagesh Kumar Misra versus State of U.P. and others, which revision is also being disposed off by this judgment.
(2.) COMPLETE narration of prosecution story was elaborately divulged by Nagesh Kumar Misra, (injured/ informant/PW1), in the trial, and from a perusal of his testimonies it emerges that the parties involved in the incident were closely related and were first cousins. From the stated pedigree it is discernible that Ram Nath Misra, Sankatha Prasad Misra, and Shitala Prasad Misra, all r/o village Kamharia, P.S.Ghorawal, district Sonbhadra, were uterine sibling brothers. Sankatha Prasad Misra had only a daughter and hence he partitioned his estate into two parts-one was given to his daughter, whereas rest was bequeathed to Shitala Prasad Misra, accumulating his estate to 134 bighas. Shitala Prasad Misra, aforesaid, had four sons Krishna Nand Misra, Deva Nand Misra, Atma Nand Misra, and Badri Narayan Misra (injured/ father of the informant).Since the eldest son Krishna Nand Misra had separated very early, therefore noting his successors is not very relevant for us. Deva Nand Misra had three sons Jagdish Misra, Surendra Misra and Santosh Misra, whereas Atma Nand Misra had two sons Neeraj Misra (A-5) and Pankaj Misra, from his wife Pratima Devi. Badri Narayan Misra (injured) has two sons informant/injured Nagesh Kumar Misra, PW1,and Devesh Kumar Misra (deceased). Tribhuvan is the son of Sadhu (husband of sister-in-laws) of Atma Nand Misra. It seems that by passage of time and rapacity to accumulate more wealth infused hostile feelings amongst the family members and corroded family cohesiveness as a result of which small bickering amongst them started, which are registered here under. Five or six months prior to the present murder/incident, on the question of installing a telephone connection, both the sides developed malice and hostile intent against each. Two or three months prior to the present incident Neeraj Misra (A-5) had stopped informant's tractor from passing through his granary(khaliyan) and in retaliation thereto informant and his family members including his father Badri Narain Misra(injured) had blocked passage of appellants jeep, through their agriculture field, but appellants pushed away Badri Narayan's (injured) motor cycle and had plied away their jeep. In that incident both the sides had flexed their muscles as well. All these skirmishes further prolixed hostility between rival collaterals. According to further prosecution version, in 134 bighas of land, which had fallen in the share of Shitala Prasad Misra, his eldest son Krishna Nand had no interest as he had already separated much earlier. To save that property from being carved out in ceiling proceedings, two sham sale deeds were executed of a total area of 35 bighas in favour of Smt. Partima Devi, (w/o Atmanand Misra) and Tribhuvan, (son of his Sadhu), without having any intention to alienate that portion. Thereafter, father Shitala Prasad Misra, orally made a family settlement of his entire estate of 134 Bighas amongst his three sons Deva Nand Misra, Atma Nand Misra, and Badri Narayan Misra, in 1972, but the same was disliked by Atma Nand Misra, who desired that, after taking out 35 Bighas of land sold to his wife and Tribhuvan, only rest of the estate be partitioned amongst the three brothers. Badri Narayan Misra, however adhered to the partition made by the father. Through this oral partition 1/3rd shares were carved out for each of the three brothers. Deva Nand Misra, thereafter separated from rest of his two brothers and started doing his own farming, whereas Atma Nand Misra and Badri Narayan Misra, continued to hold their shares jointly. This oral family settlement of 1/3 share to each of the three sons was given a legal shape by Shitala Prasad Misra by executing a WILL on 8.6.98 bequeathing 1/3rd share of his entire estate of 134 bighas, including 35 bighas sold to Pratima Devi and Tribhuvan, to each one of his grandsons, Jagdish Misra, Surendra Misra, and Santosh Misra (all sons of Deva Nand Misra), NageshKumar Misra(informant) and Devesh Kumar Misra (deceased), both sons of Badri Narayan Misra (injured) and Neeraj Misra (appellant No.5) and Pankaj Misra,(both sons of Atma Nand Misra). Since Atma Nand Misra was opposed to the family settlement of 1972, since the very beginning, hence executed Will burgeoned his and his sons revengeful hostile feelings against the injured uncle and his cousin brothers. Five or six days before the present incident (A-5) accompanied with Nirbhaya Tiwari and Trinayan Dubey (both acquitted accused) had come to the informant's house to talk about the partition but they were sent back to talk about it with the father. While returning from there all the three had hurled threats to the informant and his family. Because of motives aforesaid, it is alleged, that on 11.6.98 at 6 a.m., two days after execution of the Will by Shitala Prasad Misra, all the appellants, Kamlesh Dubey (A-1), Arun Kumar Dubey (A-2) Guddu Yadav @ Bhartendu Yadav (A-3), Rakesh Bharti (A-4), Neeraj Misra (A-5) and Pravesh @ Bablu (A-6) accompanied with six others namely Nirbhaya Shankar Tiwari, Ayodhya Prasad Pathak, Rajnish @ Turra, Pramod Pandey, Trinayan Dubey, and Rakesh Kumar Misra, all armed with fire arms, came to informant's house on a Hero Honda motor cycle U.P.63/1578, Jeep No. MMV-4403, one bullet motor cycle and one scooter. Informant/PW1, injured father Badri Narayan Misra, grand father Shitala Prasad Misra and younger brother Devesh Kumar Misra (deceased), all were present at their door. Neeraj Misra (A-5), started conversing with injured Badri Narayan Misra regarding partition and in midst of the said dialogue threw a challenge to finish the dispute immediately and instigating his associates, shot at Devesh Kumar Misra (deceased) on his right side head from his country made pistol. Sustaining injury, when Devesh Kumar Misra was about to fell down, informant rushed to hold him, but (A-5) shot at the informant as well on the right side of his head. Arun Kumar Dubey (A-2), meanwhile shot at Badri Narayan Misra (injured) on his right shoulder causing him gunshot injury. Father, anyhow, staggered inside the house. Informant also endeavoured to rush inside his house, when Rakesh Bharti (A-4) gave him two hockey stick blows at his right back, but the second blow cracked the stick. All the assailants thereafter resorted to indiscriminate firing causing injuries on informant's hand. Informant anyhow entered in his house and both, he and his father, bolted themselves from inside. Assailants continued to fire for some time but thereafter retreated from the occurrence scene but not without puncturing informant's motor cycle U.P.64 A/0072, by firing at it's tyre. This shooting spree was witnessed by Ramesh, Vimlesh, Raj Kumar and many other co villagers. After accused had left incident scene, informant,PW1,scribed occurrence FIR, Ext. ka-1, inside his house and then dispatched his injured father and brother to the hospital with village people on a tractor driven by Raj Mani driver and he himself came to the police station Ghorawal, on a motor cycle, accompanied by Raj Kumar Dubey, where he lodged his FIR the same day at 7.15 a.m., which was registered by HCP Sabhajit Pandey as crime number 43 of 98, U/ S 147,148,149,307,504,506,427 I.P.C., by preparing chik FIR, Ext. Ka- 12 and crime registration GD, Ext. Ka-13.These Exhibits have been proved by S.I. Satish Chandra Shukla, PW 6 in the trial. S.I. Kamta Singh, PW 8, commenced investigation into the crime, copied FIR and GD entry, recorded informant's statement u/s 161 of the Code at 12.15 p.m. and at his pointing out conducted spot inspection and prepared spot map Ext. Ka- 15. Blood stained cotton green carpet (dari), which was spread over the bench (Chauki), on which injured/ deceased was made to lie down after he was shot at, blood soaked apparels of the informant Nagesh Kumar Misra, PW1 (one cotton white paijama, one white sandow baniyain, one black and green striped half shirt) all were seized and sealed by the I.O. and recovery memo, Ext. Ka-2 in that respect was sketched. Blood stained and plain soil were collected vide recovery memo Ext. Ka-3. Six empty cartridges of 315 bore, one missed cartridge, two empties of 32 bore, two damaged cartridges, two wads of paper no.1, one metal cap of 12 bore, One bullet of 32 bore, and pellets of 315 bore and pieces of broken hockey sticks material Ext. 1, all were seized and sealed vide recovery memo Ext. Ka- 4. Three paper packaging material cartons, in which these articles were kept, are material Ext. 2,3&4. All these articles were deposited in the police cloak room. It is mentioned here that when, in the court, these cartons were opened during trial, no empty cartridge was found in them. One motor cycle U.P. 63/ 1578, belonging to the accused, was also seized by the I.O. vide Ext. Ka-16. Following day, I.O. recorded statement of Murahu and copied injury report of the informant. Further investigation into the crime was done by S.O. Satish Chandra Shukla,PW6 of P.S. Ghorawal to whom Ratnesh Kumar brother of Devesh Kumar (injured/deceased), gave information regarding expiring of Devesh Kumar @ Bangali, in Heritage Hospital, Varanasi on 15.6.98, which was noted in the case diary and offence 302 I.P.C.was added same day at 6.35 p.m. vide GD no.8,and RT set message was flashed. PW6 thereafter copied information regarding death of the deceased furnished by P.S.Lanka, Varanasi in the GD on 16.6.98. Next day Deva Nand Misra was interrogated and his statement was penned down. On 19 th injury reports of the deceased and injured father Badri Narain Misra were copied in CD by PW6 who thereafter conducted attachment proceedings at the house of accused Neeraj Misra (A-5), under the orders of the court and recorded it in the case diary and there after recorded statement of the informant and witness Upendra Misra. Attachment proceedings against (A-6) was conducted on 21.6.98 and that day itself statement of witness Raj Kumar Dubey, was inked. On 22.6.98, after coming to know about arrest of accused Neeraj Misra (A-5),I.O. interrogated him at the police station.161 Cr.P.C. statements of Smt. Parvati Devi(mother of the informant/deceased) and Smt. Nisha Devi (sister- in-law (bhabhi) of the deceased/ wife of informant) were recorded on 23.6.98. Three days after, on 26.6.1998, P.W.6 copied information regarding surrender of accused Rakesh Bharti (A-4) and Pravesh @ Babloo (A-6) and some extracts of post-mortem report. On 3.7.1998, statement of witnesses Lallan Ojha, Ramesh Mishra and Vimlesh Mishra were recorded. On 14.7.1998, I.O. penned down the statements of witness Upendra Mishra, Jagdish Mishra, and that of(A- 4) and(A-6) and copied deceased radiological report. Thereafter injured Badri Narayan Mishra (father of the deceased) was interrogated and his statement was recorded and on 2.8.1998 statement of photographer Ram Dhani was noted. On 26th and 28th.8.1998, PW6 copied inquest memo, post-mortem report, medical reports of injured Badri Narayan Mishra and X-ray plate, and CT Scan report of the deceased and made them part of the case diary. On 9.9.1998, from District Hospital Robertsganj, treatment card of the deceased and the injured and a discharge certificate, from Heritage hospital Varanasi were copied. On 5.9.1998 statements of acquitted accused Rajnish @ Turra, Ayodhya Pathak, Pramod Pandey were recorded. Subsequent thereto inquest witnesses were interrogated and I.O. copied various recovery memos and sending of blood stained articles to the Forensic Science Labrotary, Lucknow. On 13.9.1998 witnesses Sarvesh Kumar Mishra, Om Prakash Pandey, Nityanand Dwivedi, Arvind Kumar Dubey and inquest witnesses were interrogated and their statements were recorded and that day itself concluding investigation I.O./PW6 charge-sheeted (A-1), (A-2), (A-4), (A-5), (A-6), alongwith Pramod Pandey, Ayodhya Pathak and Rajnish @ Turra vide Exhibit Ka-11.
(3.) DECEASED had expired in Heritage hospital Varanasi on 14.6.1998 at 9.20 a.m. and therefore, after receiving information regarding his death offence u/s302I.P.C. was added, vide CD No.8 dated 15.6.1998 at 6.35 a.m. On 28.9.1998, I.O. noted sending of recovered articles for forensic science examination. On 10.11.1998 accused Nirbhaya Shanker Tiwari was interrogated and on 16.12.1998 Gulab Chandra Yadav and Rajesh Yadav were interrogated and their statements were recorded. On 10.2.1999 statement of accused Rakesh Mishra was recorded. Thereafter further investigation was conducted by IIIrd I.O. S.I. Raja Ram Dwivedi P.W.9, who penned down statements of accused Trinayan Dubey (A- 3) and thereafter charge-sheeted rest of the accused vide Exhibit Ka-17. Injured Devesh Kumar Mishra and Badri Narayan Mishra were medically examined on 11.6.1998 in District Hospital, Sonbhadra by Dr. J.K. Maurya, P.W.5 at 7.35 and 7.45 a.m. respectively vide their medical examination reports Exhibit Ka-7, Exhibit Ka-9. Reference slips referring them to Heritage Hospital Varanasi are Exhibit Ka-8 and Ka-10. According to this Doctor, injured Devesh Kumar was 32 years of age and was brought to him by Bhupendra Nath Mishra son of Jwala Prasad Mishra, after he was already given first aid at P.H.C., Ghorawal. Following injuries were noted by the doctor in his medical examination report Exhibit Ka-7:- 'Gunshot injury right side of head 7 cm above right ear of size, 1 cm x 1 cm" Devesh Kumar Misra was unconscious and was gasping. His heart beat was 110 per minute and aforementioned injury was sustained by him by gun or country-made pistol on 11.6.1998 at 6 AM. He was referred to Heritage Hospital Varanasi, vide Ext. Ka-8. Badri Narayan Mishra injured was found to be 48 years of age and following injury was detected on his person by the doctor:- ' an entrance wound of gunshot right arm 5 cm below the right shoulder joint.' The aforesaid injury was caused to him by some gun shot and he was conscious and his radius pulse was palpable. He could have sustained injury at or about the time and the date of the incident. Reference slip, referring him to Heritage Hospital, Varanasi is Ext. Ka- 10. Dr. Kranti Kumar, M.O., District Hospital, Sonbhadra had medically examined informant injured Nagesh Kumar Mishra on 11.6.1998 at 9.15 A.M., who was brought before him by CP 300 Deep Narayan P.S. Ghorawal, District Sonbhadra. Medical examination report of this injured is Ext. Ka-6, according to which injured was 25 years of age and had following injuries on his person:- " 1. Lacerated wound 3.5cm x 1.5cm x bone deep on left side of scalp 11.0 cm above top of left ear pinna burning, seinging of hairs, charing present. Bleeding present. Adv. X. 2. Abraded contusion 2.5cm x 1.0 cm on outer surface of right elbow joint oozing of blood present. 3. Multiple tiny pin point abrasions in area of 26.0 cm x 8.0 cm on front of right forearm extending from elbow joint to wrist joint black in colour. 4. Multiple pin point abrasions in area of 25.0 cm x 10.0 cm on the back of left forearm extending from left elbow joint to left wrist joint. 5. Contusion 16.0 cm x 4.0 cm on right side of back. 11 cm below before interior angle of right scapula. Radish in colour. 6. Contusion 10.0 cm x 3.0 cm on right side of back just above right iliac crest colour red. Nature- All injuries are simple except injury no. 1 and advised X-ray. Injury nos. 2 , 5 and 6 are caused by hard and blunt object and injury nos. 1, 3, 4 are caused by firearm. Duration fresh." Doctor had found all other injuries, except injury no.1, simple and for injury no.1, he had advised X-ray. Injuries 3, 5 and 6 were caused by hard blunt object whereas injuries 1, 3 and 4 were caused by firearm. Duration of all these injuries were fresh. Dr. Ajay Sharma, M.O.,Heritage Hospital,Varanasi had treated Badri Narayan Mishra (injured) from 11.6.1998 to 31.7.1998. Aforesaid patient was referred from District Hospital, Sonbhadra. On examination of the injury, doctor had found that upper end of humorous bone of right shoulder had compound fractures. The said injured was operated upon by this doctor. On 31.7.1998 he was discharged from the hospital after being advised physiotherapy and his discharge certificate is Ext. Ka-5. After death of the injured Devesh Kumar Misra on 14.6.1998, an information was received to P.S. Lanka, district Varanasi, from the hospital and resultantly inquest proceedings on his cadaver was conducted by S.I. Rajesh Kumar, P.W. 10, of the said P.S. in the Heritage Hospital, in presence of family relatives of the deceased. PW10, had prepared inquest memo Ext. Ka-18 and other relevant documents of chalan lash, photo lash etc. which are Exts. Ka-19, Ka- 20, Ka-21 and Ka-22. Autopsy on the cadaver of the deceased was performed by Dr. Ashok Kumar Sinha P.W. 7, Senior Orthopedic Surgeon, SSPG Hospital, Varanasi on 14.6.1998 at 2.30 P.M. Corpse of the deceased was brought to him by CP 2447 Ram Sajiwan Singh of P.S. Lanka, District Varanasi. Deceased was 23 years of age and he had expired in Heritage Hospital, Varanasi on 14.6.1998 at 9.20 A.M. He had an average built body. His mouth was closed and eyes were half open. Rigor mortis were present on his both the limbs. His brain was lacerated. A metallic piece was embedded in his brain cavity, which was extracted and sent to SSP, Varanasi. His pleura, both the lungs, pericardium, peritoneum, spleen, pancreas, kidney all were congested. Cause of his death was sustained injury on the head and brain and ensued coma. Except injury No.1, rest of the injuries, described as stitched wounds, were operational incisions and not actual inflicted injuries. Post mortem examination report of the deceased is Ext. Ka-14. Doctor had noted following injuries on the dead body:- " 1. Stitched wound right side of skull 26cm from right side of frontal bone to occipital region of skull. 2. Stitched wound 5cm on the right side head 8cm above ear. 3. Stitched wound 1/2cm on the right side head 2-1/2 cm below injury no. 2 11cm x 7cm right side of frontal parietal and temporal bone missing with brains lacerated, membranes stitched." ;