- (1.) IMTIYAZ Murtaza, J. Since all the appeals arises out of judgment and order dated 5-8-2003 passed by Additional Sessions Judge, Court No. 1, Bareilly in S. T. No. 855 of 2001, therefore, all the appeals are decided by this common judgment.
(2.) CRIMINAL Appeal No. 4648 of 2004 has been filed by the appellants Balwant and Chandra Pal no Village Dunda Junuvi, P. S. Baheri, District Bareilly against their conviction in S. T. No. 855/2001 whereby the appellants have been convicted under Sections 302/34 I. P. C. and sentenced to death and under Sections 307/34 I. P. C. to undergo rigorous imprisonment for ten year and fine of Rs. 5,000 and in default of payment of fine six months further rigorous imprisonment. Criminal Appeal No. 3749 of 2003 has been filed by the appellants Nem Chand s/o Nanhe Mal r/o Dunda Junevi, P. S. Baheri, District Bareilly and Jogendra s/o Har Prasad r/o Pununagar P. S. Sheshgarh, District Bareilly in S. T. No. 855/2001 under Sections 302/34 I. P. C. and sentenced to undergo rigorous imprisonment for life and fine of Rs. 10,000/- and in default of payment of fine one year further rigorous imprisonment and under Section 307/34 I. P. C. sentenced to undergo rigorous imprisonment for ten years and fine of Rs. 5,000- and in default of payment of fine six months further rigorous imprisonment and Government Appeal No. 6180 of 2003 preferred by the State of U. P. against the acquittal of respondents Brahm Swaroop s/o Roop Chand r/o Khamriya P. S. Sheshgarh, District Bareilly and Jagdish Baggar s/o Beche Lal r/o Himkarpur Ramrua, P. S. Nawabganj, Bareilly whereby the respondents have been acquitted in S. T. No. 855/2001 under Sections 148, 302, 149, 307, 396, 412 I. P. C. and Section 25 Arms Act. Criminal Reference No. 10 of 2003 is for confirmation of death sentence.
(3.) THE brief facts of the case mentioned in the First Information Report lodged by Atar Singh s/o Ram Pal Singh r/o Naugwa P. S. Baheri, District Baheri are that, his grand-father Natthu Singh @ Raghunath Singh had enmity with the family of Nem Chand, Gangwar. On 31-5-2000 he alongwith Natthu Singh @ Raghunath Singh, Rajendra Singh @ Goli, Virendra Singh, Dharam Pal Singh, Rajendra Singh, Satya Pal Singh had gone to New India Battery shop situated at Baheri, Nainital Road for the repairing of Dynamo of Jeep No. D. D. A. 6162. Natthu Singh @ Raghunath Singh was sitting on the counter of the shop. Dharam Pal Singh and Rajendra Singh were sitting in the Jeep. Virendra Singh was standing in front of the Jeep. Gyanendra Singh came to him and started talking with Dharam Pal Singh. Gyanendra Singh kept his gun in the Jeep near Dharam Pal Singh and went towards grove for urinating. At this time about 3. 00 p. m. Nem Chand Gangwar and his son Balwant, Chandra Pal Jogendra and Brahm Swaroop and Jagdish Baggar came in a Jeep. Balwant was armed with a D. B. B. L. Gun, Jagdish was armed with a D. B. B. L. Gun, Jogendra was armed with a rifle, Brahm Swaroop was armed with a D. B. B. L. gun, Chandra Pal was armed with a D. B. B. L. gun and Nem Chandra was armed with a Kanta. THEy surrounded them and started firing from their respective weapons. Nem Chandra assaulted Natthu Singh on his head with his Kanta. He died on the spot after receiving fire-arm and kanta injuries. Rajendra Singh and Dharam Pal Singh received serious injuries by fire-arm and they became unconscious. Virendra Singh after receiving fire-arm injuries fell near the Jeep. Rajendra Singh, Dharam Pal Singh and Virendra Singh were taken to Baheri hospital. Rajendra Singh succumbed to his injuries on way to the hospital. THE informant received fire- arm injuries on left thigh and right arm. Balwant took away Rajendra Singh's rifle and Jagdish Baggar took away licenced gun of Gyanendra. It is further alleged that chap of gun of accused fell on the spot. THE number of chap is 5809. Rajendra Singh and Satya Pal Singh witnessed the occurrence and saved themselves by running away. Several persons on the spot also witnessed the occurrence. THE assailants after sitting on their Jeep ran away towards Nainital. THE report was lodged at 3. 20 p. m. THE distance of Police Station is only 1 km. Raj Guru Station House Officer, P. S. Baheri started the investigation of the case. He recorded the statement of informant Atar Singh in hospital. He reached the place of occurrence and on his direction inquest report of Natthu Singh was prepared by S. S. I. , N. K. Sharma. He recorded the statements of Rajendra Singh, Satya Pal Singh and Gyanendra Singh. He also prepared the site-plan (Ex. Ka-24 ). He recovered two empty cartridges, chap of gun, blood stained and plain cemented earth. He also collected plain cement and blood stained rubber from the Jeep and one belt of 19 live cartridges and another belt of six live cartridges of 12 bore and prepared separate recovery memo (Ex. Ka-25 ). He also recorded statements of witnesses of recovery memo, Karan Singh, Ashok Walia and A. S. I. N. K. Sharma.;