ANIL KUMAR SHARMA,J. - (1.) SINCE these two appeals are inter-connected and subject matter is the common judgment of the trial Court, so they have been heard and being disposed of together by this judgment.
(2.) APPELLANTS along with one Manoj @ Kakka were put to trial in S.T. No. 128/2002, State vs. Pappu @ Avanish and others, under section 302 and 120-B IPC and 7 Criminal Law Amendment Act (Crime No. 83/2002, P.S. Achhalda, District Auraiya). Accused Pappu @ Avanish was also prosecuted u/s 25 Arms Act. The Additional Sessions Judge, Auraiya vide judgment and order dated 15.05.2004 had convicted the three appellants under section 302 IPC and sentenced to imprisonment for life and fine of Rs. 30,000.00 with default stipulation. Accused Pappu @ Avanish has further been found guilty under section 25 of the Arms Act and has been sentenced to undergo imprisonment for three years along with fine of Rs. 10,000.00 and in default of payment of fine to further undergo additional imprisonment of one year. The trial court has however acquitted accused Manoj @ Kakka under section 120-B IPC. In the aforesaid appeals the appellants have challenged their conviction and sentence imposed upon each of them. Facts germane to the appeals are that on 28.01.2002 at about 9.30 A.M. Ram Prakash @ Mangli s/o Badri Prasad, r/o village Mohammadabad, P.S. Achhalda, District Auraiya submitted a written report scribed by Ram Bahadur Singh in P.S. Achhalda stating therein that today at 8.30 A.M. for going to Achhalda Amar Singh @ Munnu s/ o Ram Sanehi (deceased), Sanjeev Kumar s/o Ganga Ram (PW-1), Mukesh @ Pinku s/o Shyam Babu Dixit (deceased), Santosh Kumar s/o Suraj Narayan (accused-appellant), Pappu s/o Krishna Babu, Manoj Kumar @ Kakka s/o Padam Bahadur and Ram Kishore Pathak s/o Anokhey Lal boarded Jugar from the shop of Santosh Kumar, situated in Mohammadabad. Manoj Kumar @ Kakka s/o Padam Bahadur had called Amar Singh @ Munnu from his home. At about 8.40 A.M. when Jugar reached at Tehrajpur culvert Pappu s/o Krishna Babu who was sitting in Jugar took out Adhiya (Tamancha) and fired shot at Amar Singh @ Munnu. Mukesh @ Pinku s/o Shyam Babu Dixit protested whereupon he was also shot by him with the aforesaid firearm. Both the persons succumbed to the injuries on the spot. Assaulting both of them Pappu s/o Krishna Babu and his companion Santosh Kumar and Ram Kishore hurling abuses said that they have been finished today now they would see their family members, they would also not be spared and would see who depose against them? After the incident fear and terror was created in the area and the people started running hither and thither. The incident was witnessed by Sanjeev Kumar and Birbal residents of Mohammadabad and they informed at the residence of both the deceased. On the basis of this report case under section 302 IPC and 7 Criminal Law Amendment Act was registered at crime no. 83/2002, investigation whereof was taken up by S.O. Shiv Raj Singh PW-6. He interrogated the writer of check report and the complainant in the police station and reached at the spot. He dictated the inquest reports of both the deceased to S.I. Ram Veer Singh and sent the dead bodies for post mortem examination in a sealed cover along with usual papers. Dr. Shailendra Tiwari conducted autopsy on the corpse of the deceased Mukesh Kumar @ Pinku on 29.01.2002 at 10.00 A.M. He found that the deceased was young man of average body built. Rigor mortis was present in both the extremities. Abdomen was slightly distended. He found the following ante mortem injury on the person of 23-years old deceased: "Fire arm wound of entry 2 cm x 2 cm x chest cavity deep over left part chest wall 4 cm lateral from mid-line at level of T vertebra. Margins inverted with surrounding black skin of 1/2 cm." In internal examination doctor found 4th rib of left side fractured. Pleura and left lungs were lacerated. About 800 ml clotted blood was present in left pleura cavity. One deformed metallic piece and one piece of wadding was recovered from left lung. The heart was empty. 200 grams of pasty food was found in the stomach.
(3.) ON the same day at about 10.15 A.M. Dr. Tiwari examined the cadaver of the deceased Amar Singh @ Munnu. He found that 35-years' old deceased was having average built body. Rigor mortis was present in both the extremities. Abdomen was slightly extended. He found the following ante mortem injures on the person of the deceased: 1. Fire arm wound of entry 2 cm x 2 cm x through 'n' through over right interior chest wall 6 cm medial and 2 1/2 O' Clock from nipple. Margin inverted surrounded 1/2 cm black skin present. 2. Fire arm wound of exit 3 cm x 3 cm over right post chest wall over 7th 1 CS. 1 cm lateral to line. Margin everted and lacerated. On internal examination the doctor found that 3rd rib interior and 7th posterior right side were fractured, pleura and right lung were lacerated. Heart was empty. One litre clotted blood was found in right pleural cavity. In stomach 200 gram pasty food was found. In the opinion of the doctor both the deceased suffered death about one day before due to shock and hemorrhage as a result of fire arm injury. The Investigating Officer inspected the place of occurrence and prepared the site plan. The sample of plain and blood stained earth and 12 bore empty cartridges was recovered from the spot through memo Ex. Ka-17 and Ex. Ka-18. Thereafter witnesses Asha Ram and Avdhesh Kumar were interrogated. Efforts were made to nab the accused persons and coercive process was obtained from the court for their appearance. On the basis of the statement of Smt. Munni Devi, section 120-B was added in the investigation against accused Manoj Kumar @ Kakka. On 26.03.2002 the Investigating Officer with the permission of the court interrogated accused Pappu in the prison and in his statement confessing his guilt he offered to get the country made pistol used in the crime recovered. On the request of the investigating officer police custody remand of accused Pappu was granted by the court on 01.04.2002 and on 02.04.2002 his custody was obtained from the jail and was lodged in the lock-up of police station at 12.10 P.M. On further interrogation accused Pappu again assured to get the country made pistol recovered. The Investigating Officer along with other police personnel and accused reached at Tehrajpur culvert and procured witnesses Sanjeev Kumar and Ramesh. Thereafter the accused took them to the orchard of Shyam s/o Shiv Dayal Dixit, r/o Nalluhpur and took out a country made pistol at about 1.30 P.M. from bushes of Lemon tree etc. The country made pistol contained an empty cartridge. Recovery memo was prepared at the spot. On the basis of recovery of illicit fire arm a case under section 25 Arms Act at crime no. 170/2002 was registered on 02.04.2002. The investigation in both the cases culminated in charge sheets against the accused persons.;