- (1.) A. K. Roopanwal, J. Both these criminal appeals have been filed against the judgment and order dated 13-12-2005 passed by the learned IIIrd Additional Sessions Judge, Ghaziabad in Session Trial No. 821/2004, State v. Sushil and Ors. , under Section 302/34, I. P. C. , 504 and 506, I. P. C. P. S. Haafizpur, District Ghaziabad and S. T. Nos. 822/2004, 823/2004 and 824/2004 under Section 25 of the Arms Act by which the appellants were found guilty for the offences punishable under Section 302, I. P. C. read with Section 34, I. P. C. n Sections 504 and 506, I. P. C. and Section 25 of the Arms Act and each of them have been sentenced to death for the offence punishable under Section 302 read with Section 34, I. P. C. , two years rigorous imprisonment for the offence punishable under Section 504, I. P. C. and 506, I. P. C. and two years rigorous imprisonment under Section 25 Arms Act and a fine of Rs. 1,000/- and in default of payment of fine further imprisonment for two months.
(2.) CRIMINAL reference is for the confirmation of the death sentence awarded to the appellants. The brief facts, which gave rise to these appeals are that Complainant Anil Kumar son of Kishan Swaroop of Village Rampur, P. S. Haafizpur, District Ghaziabad and his brother Hari Raj had old litigation with accused Sushil and Babloo sons of Raj Singh of their village. Hari Raj was engaged in the business of milk selling at the time of the incident. Due to fear, the complainant and his father used to accompany Hari Raj. On 8-1-2004 at about 5. 45 a. m. , the complainant, his father and Hari Raj were going to the house of Nanak Jatav to take milk where they were surrounded by accused Sushil, Babloo and Arvind at the culvert of a drain. They all were having pistols in their hands. The complainant and his father took shelter in the nearby house while Hari Raj was murdered by indiscriminate firing done by the accused persons. In the meantime Satyaveer son of Swaraj Singh, cousin of the complainant also reached there and witnessed the occurrence. Due to fear of the accused, persons of the vicinity closed their doors and some of them ran towards the fields in order to save their lives. The accused left the place of occurrence by challenging that if anybody helps the complainant or gives evidence against them, he would also be given the same treatment as was given to Hari Raj. The occurrence was seen by the witnesses in the full moonlit night. Hari Raj died in front of the house of Des Raj Prajapati.
(3.) THE complainant got the report of the occurrence written from Mohd. Salim son of Tahir Husain of Sultanpur, P. S. Hapur Dehat, went to the police station, Haafizpur where on the basis of this report, F. I. R. was lodged on 8-1-2004 at 6. 30 a. m. at crime No. 4/04, under Sections 302, 504, 506/34, I. P. C. THE case against the accused persons was registered at G. D. No. 12 at the same time. The investigation of the case was taken up on 8-1-2004 by S. I. Jeevaram Yadav, the then S. O. , Haafizpur, District Ghaziabad. He recorded the statement of the complainant Anil Kumar on the same day and got prepared the inquest report of the deceased under his supervision by S. I. Amar Singh and sent the dead-body for post- mortem. He recovered five empty cartridges of 315 bore and four empty bullets from the place of occurrence. The I. O. also collected the blood stained and plain earth from the place of occurrence and also recorded the statement of the eye-witness, Kishan Swaroop Yadav. He also inspected the site of occurrence and prepared the site plan. During investigation the I. O. recorded the statements of the persons of vicinity and also of the Panchayatnama. The statement of the scribe of the F. I. R. was also recorded by him. He arrested the accused Babloo on 11-1-2004 and on his pointing out recovered a pistol on the same day at 7. 30 a. m.;