HARSH KUMAR,J. - (1.) The present criminal appeal has been filed against the judgment and order of conviction and sentence dated 9/10.5.1991 passed by VIth Additional Sessions Judge, Etah in S.T. No.69 of 1989, convicting all the accused for the offences under Sections 302 read with Section 149 I.P.C. and Section 148 I.P.C. and sentencing each of them with life imprisonment and Rs.1,000/- fine under Section 302 / 149 I.P.C. and with imprisonment for an additional period of six months in case of default in payment of fine and each of the accused was sentenced with rigorous imprisonment for a period of one year under Section 148 I.P.C. Apart from it accused Sahab Singh was also convicted for the offences under Section 324 I.P.C. and Section 25 Arms Act and was sentenced with one year rigorous imprisonment under each sections 324 I.P.C. and Section 25 Arms Act. All the seven accused/convicts have jointly filed the present appeal and were released on bail during pendency of appeal. During pendency of appeal, appellant nos.3 and 7 Shiv Singh and Mahesh were reported to have died and appeal in their respect was abated vide order dated 12.8.2014.
(2.) The brief facts relating to the case are that on the written report submitted by Ram Baran a F.I.R. was lodged against seven accused persons at 11:15 p.m. on 9.11.1987 at Case Crime No.109 of 1987, under Sections 147 , 148 , 149 , 302 and 324 I.P.C. and Case Crime No.110 of 1987 under Section 25 Arms Act against Sahab Singh with following averments:- "It is submitted that about two months back Ram Khilari and others had kidnapped applicant's brother Bal Mukund on account of arrears of money of which report was made by him at Police Station and since then they are inimical; that today on 9.11.1987 applicant, his brother Bal Mukund, his Bhanja Chob Singh and Bahnoi Raghuveer were around campfire (vkfl;kus ij rki jgs Fks) after dinner, a lantern was on at the hut, and Chob Singh was having torch; that at about 8:00 p.m. seven persons arrived there, Sahab Singh called to catch Bal Mukund, and when Bal Mukund ran towards the house of Shyam Singh by raising alarm, these people chased and fired at him, due to which he fell down; that on alarm raised by Bal Mukund, Muneshwar Singh arrived; that the complainant and his associates chased the miscreants and Chob Singh snatched the ¾th gun (ikSuk cUnwd) of Sahab Singh during scuffle, when Sahab Singh caused teeth-bite injuries to Chob Singh and Chob Singh also gave teeth bites to Sahab Singh; that in the light of lantern and torch they identified miscreants Ram Khilari, Sahab Singh, Shiv Singh, Parsadi, Ram Singh, Hemraj and Mahesh, out of whom Shiv Singh and Ram Khilari were armed with guns while Sahab Singh, Hemraj, Parsadi, Ram Singh and Mahesh were armed with country-made pistols; that on way to Police Station, by tractor of Rambir Singh injured Bal Mukund succumbed to the injuries and they reached Police Station with dead body of Bal Mukund, the snatched pistol of Sahab Singh as well as with injured Chob Singh." The written report to above effect got scribed by Shaym Singh son of Sahab Singh of Nadarmai, was submitted at Police Station.
(3.) After completing the investigation, charge-sheet was submitted by I.O. against all accused and case was committed to Sessions. The Sessions Judge after hearing the accused persons framed charges for the offences under Section 148 , 302 / 149 , 324 I.P.C. and Section 25 of Arms Act against Sahab Singh and under Section 148 , 302 / 149 and 324 / 149 against the rest 6 accused persons, from which they denied and demanded trial. In order to prove its case the prosecution produced Ram Baran, the first informant and eye witness as P.W.-1, Chob Singh, the injured eye witness as P.W.-2, Gaya Prasad Diwakar and Prem Pal Singh Investigating Officers, as P.Ws.3 and 4, Dr. S.D. Mishra, the Medical Officer, who examined the injuries of Chob Singh as P.W.-5, Dr. K.N. Shukla, who conducted the post-mortem of the body of deceased Bal Mukund as P.W.-6 and Constable Ishwar Singh who sealed the 10 pellets recovered by Medical Officer from the body of deceased at the time of post-mortem, examination ( upon being handed over to him) as P.W.-7.;