Vishnu Sahai, J. - (1.) -Criminal Appeal No. 4393 of 2002 has been preferred by Rajbir and Manphool against the judgment and order dated 1.10.2002 passed by the Additional Sessions Judge (Court No. 1), Muzaffarnagar, in Sessions' Trial No. 168 of 2001, whereby they have been convicted and sentenced in the manner stated hereinafter : Manphool : Under Section 302, I.P.C. to imprisonment for life. Rajbir : (i) Under Section 302, I.P.C. to death ; and (ii) Under Section 307, I.P.C. to one year's R.I. The sentences of Rajbir, on both the counts, have been directed to run concurrently. Capital Sentence Reference No. 8 of 2002 arises from the reference made by the learned Additional Sessions Judge to this Court, under Section 366 (1), Cr. P.C. for confirmation of the death sentence of Rajbir. It is pertinent to mention that along with the two appellants, a third accused, namely, Risal alias Risal Singh was also tried, but he has been acquitted vide the impugned judgment and Criminal Misc. Application No. 5694 of 2002 has been preferred by the State of U. P. against the acquittal of Risal. We would like to mention that Criminal Misc. Application No. 5694 of 2002 was not listed before us but on the joint request of learned counsel for the parties, which has been recorded by us in a separate order passed today, we summoned it from the office and also heard it.
(2.) SINCE all these three matters 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 Vikas Kumar P.W. 2 is the son of Ishwar Chand P.W. 1., the brother of deceased Sonu, the grandson of deceased Chauhal Singh, the nephew of deceased Suresh, the son of deceased Kamlesh alias Kamla, and the nephew of the deceased Harpal. At the time of the incident, the informant along with the said persons was living in village Kanahahedi within the limits of Police Station, Charthawal in District Muzaffarnagar. At that time the appellants Rajbir and Manphool and respondent Risal were also living in village Kanahahedi. It is pertinent to mention that appellants Rajbir and Manphool are closely related to the informant and the deceased. Appellant Manphool is the real brother of deceased Chauhal Singh, the father of Ishwar Chand, who is the father of the informant. Appellant Rajbir being the son of Manphool is the first cousin of Ishwar Chand and uncle of the informant. At the time of the incident, a dispute pertaining to a drain was pending between Ishwar Chand on one hand and Manphool and Rajbir on the other. A day before the incident, i.e., on 25.8.2000 at about 9.00 a.m., appellant Rajbir had come to the house of the informant and tried to molest his mother (deceased Kamlesh). He also assaulted her. Kamlesh informed Ishwar Chand about it, who also got her medically examined at Muzaffarnagar. On 26.8.2000, at about 6.30 a.m., while the informant was present at his house, appellant Rajbir and respondent Risal Singh armed with licensed guns and appellant Manphool armed with a lathi came. Rajbir and others were saying that they would finish the entire family. Rajbir fired on Sonu, who died instantaneously. Thereafter, Rajbir and others entered inside the house, where the family members were present. Rajbir and Risal fired on Suresh, who died immediately. Rajbir also fired on Kamlesh, who died instantaneously as a result thereof. At that time, Chauhal Singh and Harpal were coming from their field and when they had reached in front the house of Parmal, appellant Manphool assaulted Chauhal Singh with a lathi and Rajbir fired on Harpal. They also died instantaneously. Apart from the informant, this incident was also seen by his father Ishwar Chand. When Rajbir and others rushed towards Ishwar Chand he, along with his son Sanjeev Kumar (Sandeep), ran and hid in a sugarcane field. Thereafter, the informant along with Wahid and Pt. Jadav Ram proceeded to Police Station Charthawal. At a tea-stall situated just outside the police station, the informant got his F.I.R. scribed by Pt. Jadav Ram. He then lodged it at Police Station Charthawal, District Muzaffarnagar. The evidence of Head Constable Chatar Lal Sharma P.W. 6 shows that on 26.8.2000, at 8.15 a.m., he registered a case under Sections 302/307/452/504/506, I.P.C. on the F.I.R. lodged by the informant Vikas Kumar P.W. 2. A perusal of the F.I.R. shows that therein appellants Rajbir and Manphool and respondent Risal are named. The evidence of Chatar Lal Sharma also shows that he prepared the chik F.I.R., a perusal of which shows that the distance between the place of incident and Police Station Charthawal was nine kilometres.
(3.) AFTER the case had been registered, the informant Vikas Kumar, along with a chitthi mazroobi (letter of request for medical examination) was sent to Primary Health Centre, Charthawal, where he was medically examined, the same day, at 11.30 a.m. by Dr. Shailesh Jain P.W. 3 who found on his person the following injuries : (i) An abrasion over back of left forearm 0.5 cm. x 0.5 cm. in size 6 cm. below left elbow joint. (ii) A lacerated wound over front of left forearm 12 cm. below left elbow joint. 0.5 cm. x 0.5 cm. swelling is also present underneath. In the opinion of Dr. Jain, Injury No. 1 was simple in nature and for Injury No. 2, which was kept under observation, Dr. Jain advised X-ray. In the opinion of Dr. Jain, the injuries were fresh. The evidence of informant, Vikas Kumar shows that after he had been medically examined by Dr. Shailesh Jain, he was sent for X-ray examination to Muzaffarnagar. 6A. The evidence of Dr. M. H. Agrawal P.W. 5 shows that on 26.8.2000 (the date of incident) he was posted as Radiologist in District Hospital, Muzaffarnagar and under his supervision X-ray of left forearm of Vikas Kumar was conducted. It is pertinent to mention that a perusal of the X-ray report shows the presence of a single rounded radio opaque shadow of metallic density in upper half under skin. It also shows that no bone injury was present.;