AMAR SARAN,D.R.AZAD,J - (1.) HEARD learned Counsel for the appellants, learned Counsel for the complainant Sri Deepak Dubey, and the learned A.G.A. and perused the record and judgement of the learned Additional Sessions Judge/FTC I, Kushinagar dated 2.4.2009 convicting and concurrently sentencing the appellant/applicants to imprisonment for life and fine of Rs. 5000 under section 302/149 IPC, and 2 years R.I. under both sections 147 and 506 IPC. The prayer for bail in both the con­nected appeals are being disposed of by means of this common order.
(2.) THE allegations in the F.I.R. were that on account of election enmity on 21.8.2005 at about 4 p.m., the appellant Ram Dayal Gupta, Ramji Pandey, Gorakh Pandey, Mritunjai Pandey and Digvijai Pandey arrived together at the door of the informant Ramlakhan Chakradhar hurling abuses and raising cries. The appellant Ram Dayal Gupta cried out that Nagendra alias Saroj should be shot and he would bear the expenses. Then co-accused Ramji Pandey, (who has not yet filed his criminal appeal against the impugned judgment) ' whipped out his country made pistol, whilst the other accused-appellants kept crying out to kill everybody, and they would face the consequences. Then Ramji Pandey fired his country made pistol on Nagendra alias Saroj, the cousin brother of the informant, who succumbed to his inju­ries on the spot. The F.I.R. was lodged the same day at 5.20 p.m. at P.S. Hata. It is argued by the learned Coun­sel for the appellants that this is a case of en masse false implication inasmuch as 5 per­sons have been made accused in the after­math of the panchayat elections, even though the deceased has received only a single fire arm injury which is imputed to the co-accused Ramji Pandey.
(3.) IT was also submitted by the learned Counsel for the appellants that the main enmity in this case, if at all, was be­tween Nasruddin and the appellant Ram Dayal Gupta because Ram Dayal Gupta had earlier been elected the Pradhan. Now as the constituency had been declared a women's constituency, the present election was being fought between Smt. Basanti the wife of Ram Dayal Gupta and Fatima the wife of Nasruddin, and the prosecution allegation was that Ram Dayal Gupta ap­prehended that the wife of Nasruddin would be elected. It is argued by the learned Counsel for the appellants that as election enmity was said to be the main motive, the person who should have been targetted for the attack would have been P.W. 4 Nasruddin or his brother P.W.3 Jalaluddin, who are admittedly eye­witnesses of the incident, but significantly they were not attacked, but only the de­ceased Nagendra alias Saroj was fired upon. It is further argued by the learned Counsel for the appellants that all the four witnesses P.W.1 Ramlakhan Chakradhari, who is the informant, P.W. 2 Motilal. who is his relative, P.W. 3 Jalaluddin, brother of Nasruddin belong to the party of Nasrud­din PW 4, the fourth eye-witness, and that the appellant Ram Dayal Gupta has been given an explicit role of exhortation only because he was the ex-Pradhan and his wife had contested the election against the wife of Nasruddin. It was submitted that the omnibus allegations of instigation, which are assigned to all the accused ex­cept the main shooter Ramji Pandey, are artificial and not very believable. That the witnesses are prejudiced against the appel­lants and have sought to exaggerate their roles is apparent from the fact that whereas in the FIR and in his evidence, PW 1 Ram Lakhan Chakradhari, informant, has de­posed that the appellants (other than co-accused Ramji Pandey) were unarmed, but had only resorted to "talkars" and abuses, but in his cross-examination PW 2, Moti lal has stated that Ram Dayal was armed with a small danda, Gorakh and Mritunjaya were armed with bricks, which they are said to have used in the incident, even though no one has sustained any injuries due to these weapons. PW 3 Jalaluddin the brother of Nasruddin has gone one step further in his cross-examination and set up an entirely new case by assigning a cubit long country made pistol to Ram Dayal, a big country made pistol to appellant Gorakh, and country made pistols to appel­lants Mrityunjaya and Digvijay. Thus it is contended that the prosecution witnesses are prone to exaggerate the case against the appellants, and it is in this context that the role of exhortation by the appellants has been developed. The case of the appellants is clearly distinguishable from the case of Ramji Pandey, who whipped out his coun­try made pistol and then fired on the de­ceased. There is a single firearm injury on the deceased and no other injury to the de­ceased or any other person. The appellants were also on bail during trial and are not said to have abused their bail.;