- (1.) VISHNU Sahai, J. Six persons, namely, Bichari Singh, Paras Singh, Mahajan Singh, Addya Singh, Gopal Dubey and Dharmraj Dubey were charged by the III Additional Sessions' Judge, Deoria in Sessions Trial No. 186 of 1995, for offences punishable under Sections 147 IPC, 148 IPC, 302/149 IPC and 452/149 IPC. During the pendency of the trial Dharmraj Dubey died. Vide judgment and order dated 11-6-2002, the learned Trial Judge convicted and sentence Addya Singh, Paras Singh, Bichari Singh, Mahajan Singh and Gopal Dubey, in the manner stated hereinafter: Paras Singh and Addya Singh: (i) Under Section 302/149 IPC to death to pay a fine of Rs. 10,000 each, in default, to undergo three years' RI, and; (ii) Under Section 148 IPC to one year's RI. Bichari Singh, Mahajan Singh and Gopal Dubey: (i) Under Section 302/149 IPC to imprisonment for life and to pay a fine of Rs. 10,000 each, in default, to undergo three years' RI and; (ii) Under Section 148 IPC to one year's RI. The sentences were directed to run concurrently.
(2.) AGGRIEVED by their convictions and sentences Paras Singh preferred, in this Court, Criminal Appeal No. 162 of 2000; Addya Singh Criminal Appeal No. 2540 of 2002; Mahajan Singh and Bichari Singh Criminal Appeal No. 2466 of 2002; and Gopal Dubey Criminal Appeal No. 2336 of 2002. The learned trial Judge made a reference under Section 366 (1) Cr. P. C. to this Court, for confirmation of death sentence of Paras Singh and Addya Singh and Capital Sentence Reference No. 7 of 2002 arises from the said reference. Since all these four appeals and Capital Sentence Reference No. 7 of 2002 arise out of a common factual matrix and impugned judgment, we are disposing them off by one judgment. Shortly stated, the prosecution case runs as under: The informant Sharda Singh PW 1 is the elder brother of the deceased Toofani Singh. At the time of the incident, the informant the deceased, the informant's sons Anil PW 2, Surendra Singh PW 3, Ravindra Singh PW 4 and Virendra Singh PW 6, the informant's sister-in-law Smt. Durgawati Devi PW 7 (wife of the deceased) and Gorakh PW 5 were living in village Jhanga, within the limits of police station Hata, District Kushinagar. At the said time, appellants Bichari Singh, Mahajan Singh, Addya Singh and Paras Singh were also living in the said village and appellants Gopal Dubey and Dharmraj Dubey (he died during the pendency of the trial) in village Magurahi within the limits of police station Hata, District Kushinagar. There was enmity between the deceased Toofani Singh on the hand and appellant Bichari Singh on the other. About six years prior to the incident a patta, in respect of pond of the village, had been executed in favour of Toofani Singh, who bred fish in it, This incensed Bichari Singh. Dispute pertaining to land was also pending between Toofani Singh and Bichari Singh at the time of the incident. On 25-6-1994 at about 1. 30 a. m. Virendra Singh PW 6, the deceased Toofani Singh, Durgawati Devi PW 7 (wife of the deceased), Pappu Singh (son of the deceased) and Ravindra Singh (brother of Virendra Singh) were sleeping on the roof of the second floor of the house of Toofani Singh. An electric bulb was burning there. At that time, Paras Singh, Addya Singh, Bichari Singh, Mahajan Singh, Gopal Dubey and Dharmraj Dubey came there. Paras Singh, Addya Singh and Dharmraj Dubey were armed with bombs, Bichari Singh with a farsa, Gopal Dubey with a gun and Mahajan Singh with a country-made pistol. Immediately, they started assaulting Toofani Singh with guns, country-made pistol, bombs and farsa. As a consequence thereof Toofani Singh died. Hearing the sound of bombs and firing from gun and country-made pistol Gorakh PW 5, Sharda Singh PW 1, Surendra Singh PW 3 and Ram Pratap Singh came. They recognised the said persons in the light of torches and electric bulb. Thereafter, the informant Sharda Singh got the FIR scribed by his son Anil and thereafter, proceeded to police station Hata and lodged it.
(3.) THE evidence of Head Constable Prem Shankar Singh PW 8 shows that on 25-6-1994, he was posted as Head Constable at Police Station Hata and at 2. 10 a. m. Sharda Singh PW 1 came and lodged his FIR on the basis of which, he prepared the Chik FIR. A perusal of the Chik-FIR shows that on its basis offences punishable under Sections 147/148/149/ 452/302 IPC were registered against Bichari Singh, Addya Singh, Paras Singh, Mahajan Singh, Dharmraj Dubey and Gopal Dubey. Its perusal also shows that the distance between the place of the incident and the aforesaid police station was five kilometres. The evidence of SHO Umesh Chandra Mishra, PW 10 shows: On 25- 6-1994 he was posted as Station-House-Officer at police station Hata. In his presence the FIR was lodged and the case was registered. During night itself, he proceeded for the place of the incident where he found the corpse of the deceased Toofani Singh on the roof of the second floor of his house. He recorded the statement of deceased Toofani Singh's wife, Smt. Durgawati Devi. He, thereafter, prepared the inquest on the corpse of the deceased Toofani Singh. He then with Durgawati Devi inspected the place of the incident and prepared the site-plan. From the place of the incident, he seized remnants of bomb, sutali (string), pieces of iron, pieces of blood stained cement, pieces of plain cement blood stained Kathari (sheet on which people sleep) and a woolen bed-sheet. The said seizures were made under a recovery memo. He, thereafter, recorded the statements of Sharda Singh and Virendra Singh and arrested accused Gopal Dubey. On 26-6-1994, he recorded the statement of Ram Pratap Singh, Gorakh and others. On 1-7-1994, after recording the statement of the accused persons, he submitted the charge-sheet against them.;