Poonam Srivastav, J. - (1.) THE present appeal has been filed against the judgment and order dated 12.1.2001, passed by the District and Sessions Judge, Jaunpur convicting the four appellants under Section 302, I.P.C. read with Section 302/149, I.P.C. and sentencing them for life imprisonment and fine of Rs. 3,000. In default of payment of fine further imprisonment of 4 months R.I. under Section 148, I.P.C. 3 years R.I., 10 years R.I. and fine of Rs. 2,000 under Section 307/149, I.P.C. In default of payment of fine within 30 days from the date of judgment 2 months R.I. and 7 years R.I. and fine of Rs. 2,000 under Section 380, I.P.C. In default of payment of fine a further imprisonment of 30 days from the date of judgment. All the sentences are directed to run concurrently. THE charge under Section 452, I.P.C. in alternative under Section 396, I.P.C. has been dropped.
(2.) THE appellants were allowed bail by this Court on 28.2.2001 but the Apex Court cancelled the order granting bail and directed the Division Bench to consider grant of bail after giving opportunity of hearing to the counsel for the first informant vide order dated 25.1.2006. THE appellant Kalika Yadav, son of Ram Ajor Yadav and Paras Nath Yadav, son of Kalika Yadav surrendered pursuant to the order of Hon'ble Supreme Court and are in jail since 5.9.2006. THE appellants Indra Prakash and Keshav Prasad alias Keshar sons of Ram Ajor did not surrender. We are informed that steps have been taken for procuring their attendance, their properties have been seized but till date whereabouts of these two appellants are not known. An application was moved on behalf of the accused Kalika Yadav and Paras Nath Yadav for separating their appeal since it is not being heard on account of the reason that two other accused are absconding. A Division Bench of this Court allowed the application and separated the appeal of Kalika Yadav and Paras Nath Yadav vide order dated 16.3.2009. We proceed to hear this appeal on behalf of the two appellants Kalika Yadav and Paras Nath Yadav only who are in jail since considerable length of time. The prosecution story as unfolded in the F.I.R. briefly is that on 13.12.1990 at about 6.30 p.m. Deep Narayan alias Ballar Singh, grandfather of informant, Ram Murti Singh, uncle of the informant were sitting inside the maraha situated in the house of Deep Narayan of village Sidhai, District Jaunpur. It was winter time. A bon fire was burning outside since it was a winter evening. The electric bulbs lighted outside and inside the house of the informant, Madhuri Singh (Bua of informant), Smt. Vimla Devi, Smt. Vidya Singh, younger brother of the informant Manish Kumar Singh (P.W. 2), younger sister Aruna Singh and Rajendra Kumari Singh were present in the verandah. One Hemant Kumar Banerji resident of Jaunpur was also sitting in verandah infront of the house and Bhupesh Kumar Singh (informant) was giving fodder to the cattles. At the relevant time 12-13 miscreants including the four accused Kalika Yadav, Indra Prakash, Keshav Prasad alias Keshar and Paras Nath Yadav all armed with kattas and tamanchas came at the maraha. It is further submitted that unidentified assailants were also armed with hand grenade and bombs and one of them was armed with gun. The motive propounded by the prosecution is that certain altercation had taken place a few days before the incident between Manish Kumar Singh P.W. 2 and son of Kalika in St. Thomas Inter College where they were students. Thus, on arrival of the appellants alognwith other miscreants Kalika Yadav inquired about Manish Kumar Singh, Deep Narayan expressed his ignorance on which Kalika Yadav exhorted that the inmates of the house be ready for the consequences for the beating given to Hari Nath son of Kalika, the entire family will be destroyed. Deep Narayan stood up when he realized that Paras Nath and Kalika fired at him with their tamanchas. One of the miscreants threw a bomb resulting in serious injuries to Deep Narayan, who fell down. Ram Murti Singh came out of the Maraha and he was also fired at by accused Indra Prakash and Keshav Prasad alias Keshar. Hearing the noise, the ladies sitting in verandah also came out when the miscreants started throwing hand grenade causing injuries to the ladies of the family. Manish Kumar Singh also came out and received fire arm injury. One Hemant Kumar Banerji, a close family friend also attempted to intervene and save the family members but he was also seriously injured. The miscreants entered the house and took away one licensed D.B.B.L. gun, one S.B.B.L. gun and 32 bore licensed Mouzer pistol alongwith cartridges. On hearing the shrieks and shouts, a number of villagers came and tried to catch hold of the miscreants including Rajesh Kumar Singh alias Bindu Singh who was sitting on his roof, raised alarm, finally the miscreants ran away alongwith looted fire arms and one V.C.R. towards south.
(3.) THE F.I.R. was registered on the same day at 20.30 hours at Police Station Kotwali Shahganj, District Jaunpur situated three kilometres south from the place of occurrence under Sections 147, 148, 149, 307, 452, 395 and 397, I.P.C. THE case was registered at Case Crime No. 469 of 1990 which is Exhibit Ka-1. In the instant case, three persons have died namely Deep Narayan alias Ballar Singh, Ram Murti Singh alias Nanhe and one Hemant Kumar Banerji who succumbed to the injuries on 19.12.1990 caused in the incident. Five persons received injuries in the family of deceased Deep Narayan, Km. Aruna Singh, Smt. Rajendra Kumari Singh, Manish Kumar Singh, Smt. Madhuri Singh and one Saleem who was a nearby resident but Saleem was not present in the house when the occurrence took place in the house of first informant. According to the prosecution itself, he received injuries at the hands of some dacoits. All the injured including Deep Narayan, Ram Murti Singh and Hemant Kumar Banerji were brought to the Shahganj Hospital and the injuries were examined on the same day by Dr. Vinod Kumar Mishra, P.W. 6. The injured and the deceased were brought to the Shahganj Hospital by one Rajesh, in a Gipsy. Ram Murti Singh was declared dead and condition of Deep Narayan was precarious and he was referred to District Hospital, Jaunpur. Hemant Kumar Banerji was taken to King George Medical College, Lucknow. The injuries of the injured were examined in between 7.45 p.m. to 9.00 p.m. Injuries of Deep Narayan was examined at 7.30 p.m. The injury report is Exhibit Ka-7. He died shortly after his injuries were examined. Injuries of Km. Aruna was examined at 7.45 p.m., Exhibit Ka-8. Smt. Rajendra Kumari Singh alias Baby was examined at 8.00 p.m., Ex. Ka-9. Hemant Kumar Banerji was examined at 8.15 p.m. Manish Kumar was examined at 8.30 p.m., Ex. Ka-11 and Smt. Madhuri Singh was examined at 9.00 p.m., Ex. Ka-12. The Medical Officer sent information at the Police Station on 13.12.1990 at 9.30 p.m. informing that he examined eight injured persons up till 9.30 p.m. and another letter at 22.30 was also sent informing that Deep Narayan Singh alias Ballar Singh also died in Shahganj Hospital, Jaunpur. The two letters are Exs. Ka-13 and Ka-14. Both the letters were entered in G.D. No. 42.;