- (1.) VISHNU Sahai, J. Four persons, namely, Bachchu Singh, Bhanwar Singh, Nahar Singh and Girraj were tried by Additional Sessions Judge (Court No. 4), Aligarh for offences punishable under Sections 302/34 I. P. C. and 307/34 I. P. C. During the pendency of the trial, Girraj died. Vide judgment and order dated 15-7-2003, the learned Judge convicted and sentenced Bachchu Singh, Bhanwar Singh and Nahar Singh in the manner stated hereinafter: (i) Under Section 302/34 I. P. C. to death, and (ii) Under Section 307/34 I. P. C. to seven years' R. I. and to pay a fine of Rs. 5,000/- each, in default to undergo one year's sentence.
(2.) AGGRIEVED by his conviction and sentence Bachchu Singh preferred in this Court Criminal Appeal No. 281 of 2003 and aggrieved by their conviction and sentence Bhanwar Singh and Nahar Singh preferred in this court Criminal Appeal No. 3412 of 2003. Capital Sentence Reference No. 9 of 2003 arises out of the reference made by the learned Judge under Section 366 (1) Cr. P. C. for confirmation of death sentence of Bachchu Singh, Bhanwar Singh and Nahar Singh. Since both these appeals and Capital Sentence Reference No. 9 of 2003 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 Netrapal Singh P. W. 1 is the uncle of deceased Mukesh and brother of the injured Khajan Singh P. W. 2. At the time of the incident, the informant, Mukesh, Khajan Singh and appellants Bachchu Singh, Bhanwar Singh and Nahar Singh were residing in village Barka within the limits of Police Station Khair, District Aligarh. There was enmity between Balbeer Singh (the brother of the informant and Khajan Singh) on one hand and appellant Bachchu Singh on the other. The wives of Balbeer Singh and Bachchu Singh had contested the election for Pradhan. In the said election Bachchu Singh's wife emerged victorious. On 21-5-1996, at about 10. 00 p. m. , while the informant Netrapal Singh and his brother Karam Vir Singh were sleeping on one cot and Khajan Singh and Mukesh were sleeping on another cot (at the tube-well of the informant) the informant Netrapal Singh and Karamveer Singh heard some sound and saw appellants Bachchu Singh and Bhanwar Singh armed with knives and Nahar Singh and Girraj (the latter died during trial) armed with pistols. The aforesaid persons surrounded the cot, on which Khajan Singh and Mukesh were lying. They challenged that they be killed. Thereafter, Khajan Singh implored the accused persons to leave them but they did not pay any heed to his request. In the meantime, the Informant Netrapal Singh flashed torch. In the said light he, Karam Vir and Khajan Singh saw that the appellants with knives and country-made pistols first assaulted Khajan Singh with knives and fired on him and thereafter assaulted Mukesh with knives and fired on him. As a consequence of the assault, Khajan Singh sustained serious injuries. Thereafter the accused persons ran away. Thereafter, the informant and Khajan Singh saw that Mukesh had succumbed to his injuries. Then, the informant dictated the F. I. R. to Shyam Sunder who scribed it and thereafter read it over to him. Then, the informant alongwith Khajan Singh proceeded to Police Station Khair, where he lodged the F. I. R.
(3.) THE evidence of Head Constable Kailash Chandra P. W. 7 shows that on 21-5-1996, at 12. 10 a. m. Netrapal Singh alongwith Khajan Singh, Balveer Singh and Jaswant Singh came at the Police Station and lodged his F. I. R. on the basis of which he registered a case in the General Diary for offences punishable under Sections 307/302 I. P. C. and prepared the chik F. I. R. A perusal of the chik F. I. R. shows that the distance between the place of the incident and Police Station Khair is 7 kilometres and in the F. I. R. the four accused persons, namely, Bachchu Singh, Bhanwar Singh, Nahar Singh and Girraj are named. THE evidence of Head Constable Kailash Chandra further, shows that he prepared the chitthi Mazroobi (a letter of request for medical examination) and sent Khajan Singh for medical examination. The evidence of Dr. S. K. Upadhya P. W. 4 shows that on 22- 5-1996, at 12. 30 a. m. , he medically examined Khajan Singh and found on his person the following injuries: (i) A lacerated wound 4. 5 cm x 2. 5 cm x scalp deep on the left occipital region bleeding and blood dots. Patient fully conscious, well oriented of space and time. (ii) Multiple gun shot wounds in the area 10 cm x 7 cm on the antero lateral aspect of left an each measuring about 0. 3 cm x 0. 2 cm. Margins black. Kept under observation and advised X- ray of left arm. (iii) Multiple gun shot wounds in the area 9 cm x 5 cm on the posterior aspect of left forearm, 5 cm below the elbow joint, each measuring about 0. 4 cm x 0. 3 cm. Kept under observation and advised X-ray of left forearm. (iv) Omentum is coming out from a wound on the left lateral side of abdomen. Kept under observation and referred to general surgeon for expert opinion and management. (v) An incised wound 0. 5 cm x 1 x 0. 8 cm on the posteo lateral aspect of left thigh in the upper part. Margins sharp. In the opinion of Dr. Upadhya, injury No. 1 was caused by a hard and blunt object; injuries No. 2 and 3 by fire-arm and injuries Nos. 4 and 5 by a sharp object. In his statement in the trial Court, Dr. Upadhya stated that the said injuries could have been suffered by Khajan Singh on 21-5- 1996, at 10. 00 p. m. His evidence further shows that since the condition of Khajan Singh was serious, he referred him to the J. N. Medical College, Aligarh.;