- (1.) This Criminal Appeal has been filed by the aforesaid appellants against the judgement and order of conviction and sentence dated 17.6.2005, passed by the Additional Sessions Judge, Court No. 5, Ghaziabad, in S.T. No. 247 of 2001- State Vs. Babbal @ Harendra and others, arising out of case crime no. 373 of 2000, under sections 147, 148, 149, 504, 506, 307, 302/34 120-B, I.P.C. and section 7 of Criminal Law Amendment Act, Police Station Pilkhua district Ghaziabad, whereby, the each of the appellants, has been sentenced to life imprisonment and fine of Rs. 10,000/- under sections 302/149 I.P.C., one year R.I., under section 148 I.P.C., 7 years R.I. under sections 307/149 I.P.C. and one year R.I., under section 504 I.P.C. 2 years R.I. under section 506 I.P.C. and one year R.I. under section 7 of Criminal Law Amendment Act. In case of default in payment of fine concerned appellant was directed to undergo imprisonment for one year. These sentences were directed to run concurrently.
(2.) We have heard at length Shri A.B.L. Gaur learned Senior Counsel assisted by Shri P.K. Srivastava learned counsel for the appellants and Shri Indradeo Mishra, Kapildev Pandey learned counsel on behalf of the complainant as well as Ms. Meena and Shri J.K. Upadhyaya learned A.G.A. for the State and perused record.
(3.) The facts germane as reflected from the record, giving rise to this appeal, appear to be that one Veer Sain son of Kanak Singh resident of Chhijarsi, Police Station Pilkhua district Ghaziabad lodged written report on 27.9.2000 at 3.40 p.m. at P.S.- Pilkhua to the effect that one Gambhir and his family members of his village had murdered his brother Fakir Chandra in the year 1996. In the year 1999, Rakesh and Narendra also badly assaulted him and had been extending life threat to him and his family members and since then they had been threatening off and on. On 27.9.2000, his son Babbal and nephew Jitendra went to Qasba/township Pilkhua for purchasing "T" for tractor around 9.00 A.M. in the morning. He along with one Naresh son of Sheoraj of his village had gone to enquire about rate of bricks to Dhaulana at some brick-kiln. As soon as they reached near Sharma Petrol Pump, it was around 11.25 A.M. when his son Babbal and nephew Jintendra were sighted coming from infront of Petrol Pump on Yamaha Motor Cycle and some white coloured Maruti Car following his motor cycle. In the meanwhile white Maruti Car hit from behind the motor cycle. The motor cycle was being driven by his son Babbal. Due to this collision, both Babbal and Jitendra fell down on the ground. As soon as they stood up, Babbal @ Harendra, Chumman @ Narendra, Gambhir and Jain Singh sons of Sardar Singh, possessing country made pistol in their hands and Kuldeep son of Bheem Singh, possessing 'Farsa' alighted from car and Gambhir exhorted that they will take revenge today and it is opportune moment to kill them and while saying so the assailants opened indiscriminate firing on son and nephew of first informant. Both boys sustained gun shot injuries and fell down on the ground. In the meanwhile, Kuldeep assaulted Jintendra with 'Farsa'. First informant and Naresh raised alarm and tried to save them but they were threatened by firing and this compelled the first informant and the other person to take shelter behind bush. Since the first informant was unarmed, therefore, he could not do anything further. Due to indiscriminate firing on the spot, employees of petrol pump and employees of nearby factory ran away from the place of occurrence and panic and silence prevailed over the area. In the meanwhile, assailants threatened that in case, any persons tried to intervene, he will also be dealt with in the same manner. Assailants made their escape good by using their Maruti Car towards Masoorrie. The incident was witnessed by a number of persons. First informant and the other person Naresh, after a short while came on the spot when the police Gypsy also arrived (on the spot), whereupon, both the injured persons were taken to Yashoda Hospital in Gypsy. Nephew Jhitendra succumbed to his injury while on way to the Hospital. Condition of Babbal was serious. He is undergoing treatment in the Hospital. Dead body of his nephew has been sent to Ghaziabad Hospital. Report be lodged and action be taken. It is written in the last line of the report that occurrence has its base in deeply rooted conspiracy hatched by Subhash son of Sardar of his village, who is on inimical terms with the first informant. This report is Ext. Ka. 1 on record.;