Shiv Charan, J. - (1.) UNDER challenge in the above mentioned appeals is the judgment and order dated 16.5.2006 passed by the then Sessions Judge, Maharajganj in Spl. Session Trial No. 28 of 2004, State v. Saheb Patel and others, under Sections 302/34, 307/34 and 506, I.P.C. and Section 3 (2) (v) of S.C./S.T. (Prevention of Atrocities) Act, P. S. Kotwali, district Maharajganj.
(2.) BY the impugned judgment and order, the learned Sessions Judge after acquitting the appellants of the offences punishable under Sections 307/34 and 506, I.P.C., convicted and sentenced the appellant Saheb Patel to death sentence for the offence under Section 302, I.P.C., whereas the appellant Sanjay Patel has been convicted and sentenced to life imprisonment for the offence under Section 302, I.P.C. and appellant Hari Bansh Yadav alias Gobari has been convicted and sentenced to life imprisonment for the offence under Section 302/34, I.P.C. Both these appellants have also been sentenced to pay a fine Rs. 5,000 each with default stipulation. Learned Sessions Judge convicted the appellants Saheb Patel, Sanjay Patel and Hari Bansh for the offence under Section 3 (2) (v) of S.C./S.T. (Prevention of Atrocities) Act (hereinafter called as S.C./S.T. Act) also, but no separate sentence for this offence has been awarded under Section 3 (2) (v) of S.C./S.T. Act. Learned Sessions Judge has also made a reference as provided under Section 366, Cr. P.C. for confirmation of death sentence of the appellant Saheb Patel. Both the criminal appeals and reference are being decided by this common judgment, as they arise out of the same judgment. Facts of the prosecution story as revealed from the documents and evidence of the witnesses are as follows : "Ram Ratan complainant lodged an F.I.R. at P. S. Kotwali, district Maharajganj on 8.1.2004 at 7.55 p.m. with the allegations that today on 8.1.2004 at about 6.30 p.m. a village panchayat was going on at the door of Surya Narain son of Shiv Shankar to resolve the dispute relating to the theft of fishes from the pond of Dinesh Mallah son of Laxman. Shobhi, Bholi, Jagdish Sharma, Nand, Umesh, Awadh Raj and several other persons of village were present in the panchayat. In the panchayat Dinesh expressed doubts about the theft of fishes from his pond on Gobari and Sanjay Patel. Babu Lal, brother of the complainant, his son Sailesh and nephew Anil and several other persons, who were present in the panchayat, were interrogating Sanjay and Gobari regarding theft of fishes from the pond of Dinesh. Sanjay Patel and Gobari were denying the allegations of Dinesh. It was resolved by the panchayat that both these persons must be taken at Senduria out post. On it, Babu Lal, Sailesh and Anil became ready for carrying both these persons at the police outpost. On being annoyed from this act, Saheb Patel who was present in the panchayat opened fire on Babu Lal by his single barrel gun. After sustaining injury, Babulal fell down on the ground. When Sailesh, son of the complainant, rushed to save Babu Lal, the accused Gobari caught him on which Sanjay pierced Krich (Gupti), a sharp edged weapon, in the stomach of Sailesh. In the meantime, Saheb Patel opened second fire after reloading the single barrel gun, which hit Anil, who sustained fire arm injury and fell down on the ground. This incident was witnessed by all the persons present in the panchayat and other persons of the village. To terrorize the panchayat, the accused persons opened indiscriminate firing. On it, the participants of the panchayat tried to escape and ran hither and thither. Terror prevailed in the village and the villagers who were going for natural call also began to flee away hither and thither. There was hue and cry everywhere and public peace was disturbed. All the accused persons fled away from the spot giving threatening that if any body will come forward he will also be shot dead. Afterwards by the jeep of Raj Kumar, son of Dukkhi, injured Babu Lal, Shailesh and Anil were transported to the District Hospital, Maharajganj, where Babu Lal and Shailesh were declared dead and Anil was referred to Medical College, Gorakhpur."
(3.) AFTER leaving the dead bodies of Babu Lal and Shailesh in the hospital under the supervision of the family members, the complainant Ram Ratan went to P. S. Kotwali, Maharajganj and handed over written report Ext. Ka-1, on the basis of which F.I.R. was registered. Investigation of the case was entrusted to Sri D. P. N. Pandey, the then Circle Officer, Sadar. During the course of investigation Investigating Officer visited the place of incident and prepared fard recovery of khokha cartridges, tikli and bullet, which were recovered from the spot. Investigating Officer also collected blood stained and simple earth from the spot. He also got the inquest reports and other material documents prepared for sending the dead bodies of the deceased for postmortem. Later on, Anil injured also succumbed to the injuries on way to hospital at Lucknow and inquest report and other necessary documents were also got prepared by the Investigating Officer relating to the dead body of Anil. Blood stained and simple earth recovered from the spot was also sent to Forensic Science Laboratory for examination. He also recorded the statement of the witnesses. He performed other formalities relating to the investigation and afterwards on the basis of result of investigation submitted charge sheet against the accused persons. The Investigating Officer took the accused Sanjay Patel and Saheb Patel in police custody by the order of C.J.M. On the pointing out of Saheb Patel one single barrel gun and at the pointing out of Sanjay Patel Krich was recovered and fard recovery was prepared. On the case being committed to the Court of Session for trial, charges under Sections 506 and 302/307 both read with Section 34, I.P.C. and Section 3 (2) (v) of S.C./ S.T. Act were framed. The accused-appellants Saheb Patel and Sanjay were charged under Sections 4/25, 27 and 30 of Arms Act also. All the appellants pleaded not guilty and claimed to be tried.;