RAKESH TIWARI,J. - (1.) HEARD Sri Akhilesh Singh and Sri P.C. Srivastava, learned counsel for the appellants, Sri K.N. Bajpai, learned AGA and perused the record.
(2.) THESE criminal appeals are directed against the judgment and order dated 14.7.2003 passed by Sri Krishanashish Bhattacharya, Additional Sessions Judge, Court No.2, Gorakhpur in S.T. No. 333 of 92, State versus Raj Kumar and others convicting and sentencing the appellants under Section 302/149 IPC to undergo imprisonment for life with a fine of Rs.5,000/- each, under Section 307/149 IPC, RI of 10 years with a fine of Rs.3,000/- each and under Section 148 IPC, RI of one year with a fine of Rs.1,000/- and in default of payment of fine it was ordered to undergo Additional RI of two years. All the sentences were ordered to run concurrently. The aforesaid appeals have been filed on the ground that the order and judgment passed by the Trial Court is illegal, perverse and suffers from error apparent on the face of record; that the judgment is based on surmises, conjectures and the findings therein are misconceived as the Trial Court has failed to appreciate that the injured witnesses in the present case could not come forward to support the prosecution case which itself creates doubt in respect of the genesis of the FIR. It is lastly challenged on the ground that the punishment/ sentence awarded by the Trial Court is too harsh, excessive and severe and has been passed under the certain prejudiced deliberation against the appellants.
(3.) THE genesis of the FIR is in an incident said to have occurred at 7.00 A.M. on 13.6.92. The FIR was lodged by the first informant Ram Suchit Yadav son of Sri Lal Bihari Yadav, resident of village Lalpur, PS Basgaon at about 9.05 P.M. on 13.6.92. The distance of the police station from the place of village is said to be about 2 miles in the east. Accused persons Raj Kumar Yadav, Raj Bahadur Yadav sons of Sri Ram Govind, Jeet Bahadur alias Braj Bahadur son of Sri Ramjit Yadav, Shyamji son of Sri Shiv Mol Yadav, Baleshwar Yadav son of Sri Ratti Yadav resident of village Lalpur, P.S. Basgaon, District Gorakhpur and Smt. Rajmati wife of Sri Rajan Yadav were named in the FIR for the offences under Sections 147,148,149, 302,307,504 and 506 IPC. In the first information report, first informant Ram Suchit Yadav stated that on the Abadi land of his elder brother Sri Shiv Lal Yadav there was an old 'Madai' ' Nand' and 'Khuta'. The 'Madai' had fallen and about 10-12 days earlier, the family members of Sri Ram Govind Yadav had erected a new ' Madai' on which a Panchayat had assembled but the judgment of the Panchayat was not accepted by them and on 13.6.92 at about 7.00 A.M. they had called some persons from the village and were erecting a new 'Madai'. When accused Raj Kumar Yadav came with double barrel gun of his father, who is in Military, along with Raj Bahadur, Jeet Bahadur alias Braj Bahadur, Shyamji and Baleshwar at the spot with firearms and exhorted for killing them as a consequence all the aforesaid four accused persons fired upon them. It was avered in the FIR that Smt. Rajmati Yadav was giving cartridges to the assailants and was telling the assailants to kill them. In the shooting of firearms, Arvind aged about 17 years, son of the first informant and Om Prakash aged about 12 years son of Sri Hari Lal died on the spot. Balram Yadav son of Sri Dudh Nath Yadav, Madhav son of Adhare Yadav, Haridwar son of Sri Chandrabali Yadav, Jang Bahadur son of Sri Angnu Yadav, Smt. Gayatri Devi daughter of Angnu Yadav, Smt. Munesh Devi wife of Sri Shiv lal Yadav and Urna Shankar Yadav son of Sri Hari lal Yadav, who were raising 'Madai' received injuries.;