- (1.) R. N. Misra, J. This appeal has been preferred by the appellants Veerpal, Satyavir, Jagbir, Kunwarpal, Vijaypal, Ajaypal, Harikesh, Harish Chandra, Hari Ram and Dharambir against the judgment and order dated 1. 12. 2004 passed by Shri S. K. Samadhiya, the then Addl. Sessions Judge, Agra in Sessions Trial No. 529 of 2003, by which they have been convicted for the 'offences punishable under sections 148,452, 302 read with 149 and 307 read with 149 IPC and sentenced to undergo. R. I. for three years in each under sections 148 and 452 IPC, imprisonment for life under section 302 read with 149 IPC and R. I. for 10 years under section 307 read with 149 IPC. For the offence under section 302 IPC a fine of Rs. 10,000/- has also been awarded to each appellants and in default of payment of fine R. I. for one year has been awarded. In connected Sessions Trial Nos. 677, 678 and 679 of 2003, the appellants Jagbir, Hari Ram and Harish Chandra were acquitted.
(2.) THE facts giving rise to this case are as under:- THE complainant-informant Amar Singh son of Kare Lal and accused-appellants were residents of village Paithra Bur), police station Khandauli district Agra. THEre was some enmity between the parties regarding the electric theft. THE accused-appellants were committing theft of electricity by means of 'katia' for which the father of the complainant-informant had raised objection. In that connection the accused-appellants had caused injuries to the uncle of the complainant-informant namely Biram Singh and Raghunath also. A criminal case was registered against the accused-appellants in which warrant of arrest were issued. Due to that enmity on 8. 5. 2003 at about 2:00 PM, this incident took place. Kare Lal, the father and Biram Singh, the uncle of the complainant-informant were sitting in the tin-shed (Bada ). In the meantime, the accused-appellants having firearms (katta etc.) came there and all of sudden they started firing to kill the father and uncle of the complainant-informant. On hearing the sound of firing, Kishan Singh, Charan Singh and Dilip Singh came there. THE accused-appellants made fire on them also. All of them sustained injuries. A minor boy namely Ravindra was playing there. He also sustained firearm injuries. Lakhan Singh, the brother of the complainant-informant went inside the room in the 'bada' but the accused-appellants also made fire on him. Kare Lal, Biram Singh and Lakhan Singh died on spot. Kishan Singh, Charan Singh, Dilip Singh, Ravi, Smt. Mahaviri, Ravindra and Lokendra Singh sustained injuries. The complainant-informant lodged FIR Ext. Ka-1 of the occurrence at police station Khanduali on the same day at about 3:15 PM, as is evident from the check report Ext. Ka-10. The police registered a case on crime No. 115 of 2003 and has started investigation as is evident from copy of the G. D. Ext. Ka-11. The police reached the spot and after inspecting the dead bodies of Lakhan Singh, Kishan Singh and Biram Singh, sealed them and prepared inquest reports Ext. Ka-37 to Ext. Ka-39 along with the connected papers. The dead bodies were sent for autopsy, which was conducted by Dr. R. S. Chaher on 9. 5. 2003. The post-mortem reports of Kare Lal, Lakhan Singh and Biram Singh are Ext. Ka-2 to Ext. Ka-4 respectively. The injured persons, were also sent for medical examination. Dr. A. A. Khan examined the injuries of, the injured persons. The injury reports of Kishan Singh, Dilip Singh, Ravindra, Charan Singh, Smt. Mahaviri Devi, Lokendra are Ext. Ka-5 to Ext. Ka-16. The Supplementary reports and X-ray reports are Ext. Ka-21 to Ext. Ka-23 and X-ray plates are. Ext. 18 to Ext. 27. The Investigating Officer inspected the spot and prepared the site plan Ext. Ka-17. He also recorded the statement of the witnesses. During investigation he arrested the accused-appellants Saudan Singh, Jagbir, Harish Chandra and Hari Ram and on their pointing out country made pistols and cartridges were also recovered, as is evident from the recovery memo Ext. Ka-24. A separate investigation was made by the police regarding the recovery of the arms. The I. O. of that case prepared the site plan of the place of recovery and recorded the statements of the witnesses. The I. O. also collected the blood stained and simple soil from the place of occurrence and prepared memo Ext. Ka-18. Some empty cartridges and bullets were also recovered, the memo of which is Ext. Ka-19. The Thawra' and handle of the Hand-pump allegedly used in the crime were also recovered, the memo of which is Ext. Ka-20. The recovered articles were sent for scientific examination and the report of the Ballistic Expert is Ext. Ka-40. After completing investigation the I. O. submitted charge-sheet Ext. Ka-26 in a murder case and Ext. Ka-31 to Ext. Ka-34 in the case under the Arms Act. All the accused-appellants were charged for the offences punishable under sections 148,452,302 read with 149 and 307 read with 149 IPC. Accused-appellants Saudan Singh, Jagbir, Hari Ram and Harish Chandra were also charged for the offences punishable under section 25 Arms Act. The accused-appellants denied the allegations levelled against them and alleged their false implications in this case due to enmity. They have given no evidence in defence. Accused-appellant Ajay Pal Singh has stated that his father Saudan Singh was a witness in attempt to murder case instituted against the deceased Lakhan Singh and injured Kishan Singh. Harish Chand has stated that Lakhan Singh, Kishan Singh had made fire on his wife Smt. Pista Devi and brother Jagbir before 5 or 6 months of the occurrence in question and for that incident his father had lodged report against them. Hari Ram, Saudan Singh and Jagbir have also referred the same incident.
(3.) IN support of its case, the prosecution has examined Amar Singh PW-1, Ravindra Singh PW-2, Smt. Mahaviri PW-3 and Dilip Singh PW-4 as eye-witnesses of the incident. PW-5 is Dr. R. S. Chaher, who had conducted the autopsy of three deceased persons. PW-6 is Dr. A. A. Khan, who had examined the injuries of Kishan and Ravindra. PW-7 is Gandhi Pd. Sharma, Head Constable, who had prepared the check report on the basis of written report of the complainant-informant and made entry in the G. D. for registration of the case. He was also witness of the recovery of the illicit arms. PW-8 is Dr. B. P. Seth, who had examined the injuries of Charan Singh, Mahaviri Singh and Lakhan Singh. PW-9 is Sub INspector R. N. Tyagi, who had made primary investigation of the case and after that he had handed over the investigation to SHO Umesh Chandra Chaturvedi. He had prepared the site plan Ext. Ka-17 and taken blood stained soil and empty cartridges from the spot and prepared memos Ext. Ka-18 to Ext. Ka-20. PW-10 is Dr. Sunhari Lal radiologist, who had conducted X-ray of injured Kishan Singh, Bharat Singh and Ravi. He has proved the X-ray plates Ex. 18 to Ex. 27 and X-ray reports Ext. Ka-21 to Ext. Ka-23. PW-11 is Sub INspector Umesh Chandra Chaturvedi, who had completed the investigation of the case and submitted charge-sheet Ext. Ka-26. PW-12 is constable Udai Veer, who had prepared the check report and made entry in the G. D. regarding registration of the case under the Arms Act. We have heard Shri G. S. Chaturvedi and Shri G. S. Hazela, learned Counsels for the appellants and learned AGA assisted by Shri S. P. S. Rahghav, Senior Advocate for the prosecution and perused the evidence on record.;