Vijay Kumar Verma, J. - (1.) CHALLENGE in this appeal is to the judgment and order dated 10.12.1999 passed by the IVth Addl. Sessions Judge, Gorakhpur in Session Trial No. 465 of 1996 connected with S.T. No. 465A of 1996, whereby acquitting the accused-Rampreet and Bhagwat of the offence punishable under Section 120B of Indian Penal Code (in short, "the I.P.C.") and further acquitting the accused Arjun and Ramjeet of the offence punishable under Section 216, I.P.C., the appellants-accused Ganesh Yadav, Channa alias Ram Chandra Yadav and Babunna Yadav have been convicted and sentenced to undergo imprisonment for life under Section 302 read with Section 34, I.P.C. and ten years' rigorous imprisonment under Section 307 read with Section 34, I.P.C. However, these accused-appellants also have been acquitt spunishable under Section 120B, I.P.C. and Section 5, Explosive Substance Act.
(2.) IN a very shocking incident which occurred in the intervening night of 19/20.8.1995 at about 11.30 p.m. in village Jungle Agahi, tola Bharwal situated under the jurisdiction of P.S. Pipi Gang, district Gorakhpur, brutal murder of three kids of the complainant Shanker Yadav S/o Lal Chandra was committed. IN the same incident Shanker Yadav (P.W. 6), his wife Smt. Sandhyawati (P.W. 3) and mother Smt. Jokhna sustained injuries. Background facts, as projected by the prosecution in a nutshell are as follows : Bethol, resident of village Bharwal, had two sons namely Rampreet and Lal Chandra. Appellants-accused Ganesh Yadav, Channa alias Ram Chandra Yadav and Babunna Yadav are the sons of Rampreet Yadav. The complainant Shanker Yadav is the son of Lal Chandra. When Shanker Yadav was aged about six months, his father Lal Chandra died, due to which his mother Smt. Jokhna went away to her maika in village Chokha carrying Shanker with her. About four years prior to the incident, consolidation proceedings started in village Bharwal. Hence, Shanker Yadav alongwith his mother, wife and children came back to his village Bharwal and began to live in his parental house. Shanker and accused Rampreet had half share each in the agricultural land left by Bethol, but Rampreet was not inclined to give the land of the share of Shanker to him and hence, Shanker filed objections in consolidation proceedings. The accused Bhagwat is the brother-in-law of accused Ram Chandra. He was clerk of an advocate in Gorakhpur. When Shanker Yadav filed the case in consolidation proceedings, the accused Rampreet and his sons began to pressurize him to change his statement in consolidation proceedings, for which Shanker was not ready. On this, Rampreet and his sons as well as Bhagwat threatened Shanker to face the consequences. The house of Thakur Yadav is situated in eastern side of the house of Shanker and there is about 1-1/2 ft. wide gali in between these houses. At the time of incident, Thakur Yadav was not living in his house and a post office was functioning there. Prosecution case is that in the intervening night of 19/20.8.1995, Shanker Yadav, his mother Smt. Jokhna and wife Smt. Sandhyawati alongwith daughters Poonam and Suman and son Sadanand were sleeping on the roof of their house. A lantern was illuminating on the roof. At about 11.30 p.m. a bomb was hurled from the house of Thakur Yadav, which fell down near Shanker, due to which he and his wife sustained injuries and they all awakened and began to raise hue and cry. In the meantime, another bomb was also hurled from the roof of Thakur Yadav, which fell down near the feet of Shanker, due to which he again was injured. These bombs were hurled by an unknown person, who was not known by name to Shanker and his family members. After sustaining bomb injuries, Shanker reached on the staircase of his house and took the side of wall. Thereafter, the accused Ganesh Yadav, Chandra Yadav alias Ram Chandra and Babunna Yadav, who were armed with gandasas came on the roof of Shanker and killed his all the three children by causing injuries to them by means of gandasas. Prior to the committing of murder of children, the appellant Babunna gave gandasa blow to Smt. Jokhna, mother of Shanker, due to which she sustained injuries. Smt. Sandhyawati, wife of Shanker, was sleeping near her children. Successive gandasa blows were given to Smt. Sandhyawati by the appellant Ganesh thereby causing grievous injuries to her. On hearing hue and cry, Behrichi s/o Jhinnu, Phulraj Yadav s/o Bansdev and Patai s/o Dulare alongwith other persons came there having torches in their hands and saw the incident. Therefore, the accused persons came down from the roof and fled away. After aforesaid incident, Shanker Yadav got the written report Ext. Ka-2 scribed from Village Pradhan Satya Narayan Yadav (P.W. 2) and thereafter leaving the dead bodies of his children on the roof, he went to P.S. Pipi Ganj carrying his injured mother and wife in the tractor-trolley of Bhehrichy and handed over the written report there. On the basis of this written report, chik F.I.R. Ext. Ka-9 was prepared by the then Head Moharrir Govind Dixit (P.W. 8), who registered a case under Section 302/307, I.P.C. and Section 5, Explosive Substance Act at Crime No. 259 of 1995 on 20.8.1995 at 00.20 a.m. against Ganesh Yadav, Chandra Yadav, Babunna Yadav and one unknown person. Entry about registration of the case was made at the same time in G.D. No. 2 Ext. Ka-8.
(3.) AFTER registration of the F.I.R., the injured Shanker, his wife Smt. Shandhyawati and mother Smt. Jokhna were sent for medical examination and treatment to District Hospital, Gorakhpur, where they were medically examined by Dr. Surendra Dev (P.W. 9). The following injuries were found on the person of these injured : Injuries of Smt. Jokhna vide Injury Report Ext. Ka-9 (Medical Examination on 20.8.1985 at 2.50 a.m.) : (1) Incised wound 16 cm. x 3.2 cm. x muscle deep on right side neck extended from right mandible to back of neck. 1.4 cm. below right ear. Kept under observation. (2) Incised wound 4 cm. x 1.5 cm. x muscle deep at right scapula. All the injuries were fresh in duration and caused by some sharp edged weapon. Injuries of Shanker vide Injury Report Ext. Ka-10 (Medical Examination on 20.8.1995 at 3 a.m.) : (1) Lacerated wound 13 cm. x 1 cm. x muscle deep (Rt.) supra scapular part. (2) Lacerated wound 5 cm. x 1 cm. x muscle deep middle of (Rt.) shoulder. (3) Abrasion with contusion 15 cm. x 12 cm. on (Rt.) side neck with (Rt.) ear which is lacerated blackening present around all wound with singing of hair at (Rt.) temporal region kept under observation. (4) Lacerated wound 2.5 cm. x .5 cm. x depth under observation at dorsum of (Rt.) forearm middle arm under observation. (5) Abraded traumatic swollen in area of 6 cm. x 4.5 cm. on outer aspect of (Rt.) shoulder joint kept under observation. (6) Lacerated wound in area of 5 cm. x 2 cm. x depth under observation on medial side of (Rt.) leg 15 cm. below to (Rt.) knee joint under observation. (7) Abraded traumatic swollen 4.5 cm. x 5 cm. at outer aspect of (Lt.) shoulder. (8) Multiple small laceration abrasion and scorching points of wounds sizes in area of 43 cm. x 6 cm. on out. medial aspect of (Lt.) leg linear 3/4 and medial aspect of fort and ankle kept under observation. All the injuries were fresh in duration and surrounded by blackening and were caused by some explosive material. Injuries of Smt. Sandhyawati vide Injury Report Ext. Ka-11 (Medical Examination on 20.8.1995 at 3.10 a.m.) : (i) Multiple incised wound in area of 17 cm. x 10 cm. x bone deep on (Lt.) side face extended from Lat. of (Lt.) eye to back of neck including (Lt.) ear. Injury kept under observation. (ii) Incised wound 6 cm. x 2 cm. x muscle deep on (Lt.) side of chick, 6 cm Lat. of angle of mouth. Kept under observation. (iii) Incised wound 5 cm. x .5 cm. x muscle deep at chin. Kept under observation. (iv) Incised wound 9 cm. x 3 cm. x bone deep at (Rt.) shoulder kept under observation. (v) Incised wound 2 cm. x .5 cm. x muscle deep upper part of (Lt.) hand on dorsum surface kept under observation. (vi) Incised wound 3 cm. x 1 cm. x bone deep on (Lt.) ring finger kept under observation. (vii) Abraded contusion 7 cm. x 3 cm. (Rt.) upper arm middle part Lat. aspect. u.o. (viii) Incised wound 6 cm. x .5 cm. on back of (Lt.) arm just above elbow joint. All the injuries were fresh in duration and caused by some sharp edged weapon. AFTER medical examination, all these injured were admitted in the hospital for treatment. Smt. Jokhna was examined by E.N.T. Surgeon, Dr. R. N. Sahi (P.W. 10). Smt. Sandhyawati and Shanker also remained in the treatment of Dr. R. N. Sahi and other doctors. The details of their treatment is given in bed head tickets (Ext. Ka-12, Ext. Ka-13 and Ext. Ka-14). S.I. Durga Prasad Singh (P.W. 14) was posted as Station Officer at P.S. Pipi Ganj. The case was registered in his presence. He himself took-up the investigation in his hands. The statement of complainant Shanker was recorded at the police station itself. After sending Shanker, his wife Smt. Sandhyawati and mother Smt. Jokhan for medical examination and treatment to the District Hospital, Gorakhpur, S.O. Durga Prasad Singh alongwith police force reached on the place of incident. Two constables were deployed on the roof of the house of complainant in the night to keep watch over the dead bodies of Km. Suman, Poonam and Sadanand. Thereafter search for the accused persons was made in the night, but in vain. The inquest proceedings on the dead bodies was conducted by P.W. 14 in the morning on 20.8.1995, during which inquest report and other connected papers Exts. Ka-23 to 31 were got prepared from S.I. Prahlad Tiwari and thereafter, the dead bodies in sealed condition were sent through the constables for post-mortem examination, which was conducted by Dr. D. P. Verma, P.W. 12.;