B.K. Narayana, J. - (1.) Heard Sri Gopal Chaturvedi, Senior Advocate assisted by Sri Samit Gopal and Sri Anurag Shukla, learned counsel for the appellants, Sri Akhilesh Singh, learned Government Advocate assisted by Sri N.S. Yadav, Sri J.K. Upadhyaya, Sri B.D. Mishra, learned AGA for the State and Smt. Manju Thakur, brief holder for the State.
(2.) This criminal appeal has been preferred by appellants Surya Pandey @ Kuldeep Pandey and Dharmendra Pandey upon being convicted under Ss. 147, 148, 302/149, 307/149 read with Sec. 120B IPC, Sec. 7 of Criminal Law Amendment Act and Sec. 3/25 Arms Act vide judgement dated 21.05.2015 and sentenced to two years rigorous imprisonment and fine of Rs. 500/ - and in default of payment of fine additional imprisonment of 15 days under Sec. 147 IPC, three years rigorous imprisonment and a fine of Rs. 1000/ - and in case of default of payment of fine one month extra imprisonment under Sec. 148 IPC, ten years rigorous imprisonment and a fine of Rs. 10,000/ - and in default of payment of fine additional imprisonment of three months under Sec. 307/149 IPC, six months rigorous imprisonment and a fine of Rs. 1,000/ - and in default of payment of fine one months additional simple imprisonment under Sec. 7 of Criminal Law Amendment Act, three years rigorous imprisonment and a fine of Rs. 5,000/ - and in default of payment of fine additional simple imprisonment of two months under Sec. 3/25 of the Arms Act and death sentence under Sec. 302/149 IPC read with Sec. 120B IPC passed by Additional Sessions Judge, Court No. 3 Basti in S.T. No. 257 of 2012 under Ss. 147, 148, 149, 302, 307, 120B IPC, Sec. 7 Crl. Law Amendment Act and Sec. 3/25 Arms Act, P.S. Paikolia District Basti case crime No. 661 of 2011. Reference made by the Additional Sessions Judge, Court No. 3, Basti to this Court for confirmation of death sentence passed by him against the appellants which was registered as Reference No. 05 of 2015 before this Court and connected with this appeal by order dated 01.07.2015 passed by this Court, is also being considered along with this appeal.
(3.) The facts of the case as emerging from the reading of the FIR are that one Anil Kumar Pandey, PW -1 lodged a written complaint (Ex.Ka -2) on 27.09.2011 at about 10.00 p.m. at P.S. Paikolia District Basti against four persons, namely, Surya @ Kuldeep Kumar Pandey son of Satya Prakash Pandey, appellant No. 1, Dharmendra Pandey son of Satya Prakash Pandey, appellant No. 2, Rajeev @ Nanhe, son of Satya Prakash Pandey and Dharmendra Pandey, son of Vijay Bahadur Pandey alleging that while complainant and his brother Pankaj Pandey (deceased No. 3) were talking to Ratnakar Pandey, deceased No. 2, owner of Rajat PCO inside the PCO building situated in front of State Bank along with Shiv Prakash Pandey son of Lalta Prasad Pandey of the same village, Lalta Prasad father of the Shiv Prasad Pandey also arrived at the Rajat PCO and thereafter the complainant and Lalta Prasad Pandey went to the kiosk of one Virendra Yadav across the road for having beetle leaves while Pankaj Pandey, Shiv Prakash Pandey and Ratnakar Pandey continued with their discussion inside the Rajat PCO. At that time four persons including the appellants Dharmendra Pandey and Surya @ Kuldeep Pandey and non -appellant Rajeev @ Nanhe and Dharmendra Pandey son of Vijay Bahadur Pandey, resident of village Tenua Ranipur, P.S. Chapia, District Gonda came on two motorcycles and after parking their motorbikes in front of Rajat PCO menacingly entered the PCO and started firing indiscriminately with their firearms at Pankaj Pandey, in the incident Shiv Prakash Pandey and Ratnakar Pandey also received firearm injuries when they tried to save Pankaj Pandey. While the aforesaid occurrence was taking place, Dharmendra Pandey and Rajeev @ Nanhe had stood outside the Rajat PCO scaring the people present there by firing with their firearms in the air and threatening anyone who dared to intervene with dire consequences. As soon as the companions of Dharmendra Pandey and Rajeev @ Nanhe came out of the PCO they also started firing at the PCO building. As a result of indiscriminate firing by the accused complainant's brother Pankaj Pandey, Shiv Prakash Pandey and Ratnakar Pandey received multiple firearm injuries. It was also alleged in the FIR that the aforesaid incident was witnessed by the complainant and Lalta Prasad Pandey and when they and the other persons present there advanced towards the PCO, the assailants fired at them also but they did not receive any injury. After committing the ghastly crime, all the four culprits drove away on their motorcycles brandishing their arms. Thereafter the complainant took the injured Pankaj Pandey, Shiv Prakash Pandey and Ratnakar Pandey to District Hospital Basti for treatment where Shiv Prakash Pandey son of Lalta Prasad Pandey died during treatment. Considering the serious condition of injured Pankaj Pandey and Ratnakar Pandey they were referred for treatment to Lucknow Medical College from where Pankaj Pandey was further referred to Ford Hospital where he also died on the next morning i.e. on 27.09.2011. The third injured Ratnakar Pandey was being treated in Lucknow Medical College. On the basis of the aforesaid complaint, case crime No. 661 of 2011 under Ss. 147, 148, 149, 302, 307, 120B IPC, Sec. 7 Crl. Law Amendment Act and Sec. 3/25 Arms Act was registered against all the aforesaid four persons and entry thereof was made into G.D. at Sl. No. 33 at 22.00 hours on 27.09.2011, carbon copy of the G.D. Entry is on record as Ex. Ka -9. The Check FIR Ex.Ka -8 was prepared at the police station by PW -9 Ram Dhani. As soon as the FIR of the aforesaid incident was registered, the Investigating Officer swung into action and reached the place of occurrence on 27.09.2011 and inspected the same in the presence of the witnesses Gaureesh Nandan Pandey, s/o Anand Prasad Pandey and Mahesh Kumar Pandey s/o Sukhdev Prasad Pandey resident of Keshavpur, P.S. Haraiya, District Basti and recovered six empty cartridges KF -7.65, four fired bullets and a black helmet with a bullet mark. The empty cartridges and the bullets were seized, packed and sealed in a white piece of cloth while the helmet was packed and sealed in a separate piece of cloth, recovery memo Ex. Ka -5 was prepared on the spot.;