N.A.MOONIS - (1.) The instant appeal has been preferred on behalf of appellants against the judgment and order dated 6.9.2011 passed by the learned Additional Sessions Judge, Court No.15, district Allahabad in S.T. No. 371 of 2007 (State of U.P. Vs. Prithvipal Yadav and another), under Sections 302 , 325 , 504 and 506 I.P.C. police station Mauaima, district Allahabad whereby each of them have been convicted under Section 302 / 34 I.P.C. for life rigorous imprisonment with fine of Rs. 20,000/- and in default of payment of fine, five months further rigorous imprisonment, under Section 325 / 34 I.P.C. five years rigorous imprisonment with fine of Rs. 2,000/- and in default of payment of fine of three months rigorous imprisonment and convicted under Section 504 I.P.C. three years rigorous imprisonment with fine of Rs. 2,000/- and in default of payment of fine further three months rigorous imprisonment. All the sentences directed to run concurrently. The facts and circumstances giving rise to the appeal is as under; The prosecution case as mentioned in the first information report lodged by Vijay Bahadur Yadav, P. W. 1 is that he is a resident of village Pure Rudrashah, police station Mauaima, district Allahabad Prithvipal Yadav (appellant no.1) is the son-in-law of Pitambar Yadav. Pitambar Yadav had executed a sale deed in favour of his daughter's son (i.e. maternal grand son appellant no. 2) of three bigha land hence there is a dispute regarding the land between the two family and with respect to that a case is also pending. On account of the enmity due to the dispute of land on 20.11.2006 at 11.30 A.M. Prithvipal Yadav (appellant no. 1) who is the son-in-law of Pitambar armed with his licensed 12 bore gun along with his son Dinesh Yadav (appellant no. 2) came on a motorcycle. The complainant (Vijay Bahadur Yadav), his father Ambar Yadav, Prem Shankar Yadav and Om Prakash son of Ambar Yadav and Ram Chandra son of Panchoo were sitting at the road side. On seeing them Prithvipal Yadav and his son Dinesh Yadav alighted and parked their motorcycle. Prithvipal Yadav loaded his gun and started hurling abusive language moved towards them and fired indiscriminately and his son Dinesh Yadav exhorted to kill. His father sustained firearm injury due to which he died instantaneously on the spot as Prem Shanker ran forward to save. The son of Prithvipal Yadav, namely, Dinesh Yadav had snatched the gun of his father and fired upon Prem Shanker. Prem Shanker and Om Prakash had sustained injuries during the course of incident. On their hue and cry various persons of village arrived there at this Prithvipal Yadav and Dinesh Yadav took to their heels hurling vituperative abuses unleashing reign of terror extending threat to their life. The complainant thereafter brought Prem Shanker and Om Prakash in injured condition to the police station while leaving the dead body of his father Amber on the spot. The first information report was got scribed by him through Sudhir Kumar Dwivedi, which was handed over at the police station. On the basis of the written report the first information report (Exhibit 5-A) of the aforesaid incident was registered at 1.30 P.M. on 20.11.2016 as case Crime No. 143 of 2016, under Sections 302 , 504 , 323 and 307 I.P.C. (Exhibit 7-A/11). The chick first information report was registered in the general diary as Chick No. 122 of 2006 by Head Constable Ram Lal Kaithwal (P.W. 7).
(2.) On the registration of the first information report the criminal law was set in motion. The S.H.O. Ranjeet Singh (P.W.8) was entrusted with the investigation. He had entered the copy of the chick first information report in the case diary and recorded the statement Head Constable of Ram Lal Kaithwal (P.W. 7). He tried to record the statement of the two injured persons but they were not in position to depose as such he started the investigation by reaching at the place of incident where he found the dead body of Ambar Yadav. The inquest report was prepared at the dictate of HC Shiv Badan Tiwari in the presence of the witnesses exhibited as Exhibit Ka. 13. Thereafter, the dead body was sealed and was handed over to Constable Harish Chandra Yadav to be taken for the post mortem. The papers relating to challan nash, photo nash, letter to R.I., letter to Chief Medical Officer, sample seal were sent along with the dead body. The aforesaid papers were prepared by HCP Shiv Badan Tiwari under his direction, which was also signed by him and was marked as Exhibit Ka.14, Ka.15, Ka.16, Ka. 17, Ka. 18 and Ka. 19. He had recorded the statement of the complainant Vijay Bahadur Yadav (P.W.1) at the place of incident and entered the same in the case diary. At the instance of the complainant inspected the place of incident and prepared the site plan, which was marked as Exhibit Ka. 20. He had also taken blood stained and plain earth, empty cartridges and live cartridges of which separate memo were prepared on the spot in the presence of the witnesses, which was marked as Exhibit Ka. 22. The same was also entered in the case diary. At the place of incident he was informed by Constable Ram Lavat that Prem Shanker who was injured in the incident has died on reaching to the hospital. At this information he had made arrangement for the inquest of the said deceased Prem Shanker to be conducted by S.I. Mohd. Siddique. On the spot he had recorded the statement of other witnesses, which was incorporated in the case diary. He also entered the inquest of the deceased Amber Yadav in the case diary. Thereafter he went to search the accused persons. During 21/22.11.2006 S.I. Mohd. Siddique had informed him that after conducting the inquest of the deceased Prem Shanker his dead body has been sent for post mortem to S.R.N. Hospital through Constable Harish Chandra and Constable Raj Kumar Maurya. The inquest prepared by S.I. Mohd. Siddique was made part of the case diary by him. Again he tried to make a search of the accused persons on 22.11.2006, he had deposited the memo relating to plain earth and simple earth and other case property in the Malkhana and his return was transcribed in the G.D. No. 26 at 4.05 P.M. The paper relating to the inquest of Prem Shanker Yadav, sample seal, letter to R.I., photo nash, sample letter to Chief Medical Officer were mentioned in the case diary. Om Prakash who was also injured in the incident, his medical report and X-ray report was also transcribed in the case diary. Accused Prithvipal Yadav was arrested on 22.11.2006 at 6.20 P.M. at the tempo stand, Telai Bazar by the Investigating Officer who had confessed his guilt and stated that he can get his licensed gun recovered, at this he was taken in custody and was taken to his home in village Sandila, police station Ranigan, district Pratapgarh. He got the double barrel gun recovered from the heap of straw lying on the first floor of his house. He had also handed over the belt containing six cartridges and four empty cartridges and stated that this is the same gun with which he and his son Dinesh had killed Ambar Yadav on 20.11.2006 and had also caused injuries by firing upon Prem Shanker. Thereafter the gun was taken in custody from which smell of gunpowder was noticed. The gun and belt of cartridges were separately sealed in the presence of police personnel of which memo was prepared also signed by the accused exhibited as Paper No. 23 Ga. A copy of the memo was given to the accused and his arrest was also informed to his wife who was present at the time of recovery of gun.
(3.) The injuries of injured Om Prakash was mentioned in the case diary. As the Investigating Officer Ranjeet Singh was transferred the investigation was handed over to S.O. Udai Veer Singh, P.W. 11 on 10.12.2006 vide Parcha No. 11. He had recorded the statement of witnesses of inquest, namely, Sudhir Kumar, Lalu Prasad, Radha Prasad, Indra Kumar Pandey etc. on 11.12.2006 (Parcha No 12). On 12.12.2006 recorded the statement of witnesses of inquest of Yogendra Pratap, Shobha Nath Yadav, Pradeep Kumar, Krishna Kumari etc. and also statement of eye witness Chhangu Lal entered in Parcha No. 13. On 13.12.2006, statement of Ram Chandra son of Kallu and Om Prakash and S.I's. who were the witnesses of recovery of gun entered in Parcha No. 14. P. W. 11 S.O. Udaiveer Singh after collecting all the materials concluded the investigation and submitted the charge sheet vide Parcha No.15 dated 14.12.2006 in his own writing marked as Exhibit Ka. 25. The cognizance was taken by the learned Magistrate and the case was committed to the court of sessions on 22.5.2007, which was numbered as S.T. No. 371 of 2007. The charges were framed by the learned court below against the appellants under Sections 307 / 34 , 325 / 34 , 504 and 506 I.P.C. on 24.8.2007. Both the accused pleaded not guilty to the charges and claimed trial, hence they were put on trial. In order to prove the guilt of the appellants the prosecution has examined as many as 11 witnesses. P.W .1 Vijay Bahadur Yadav, (complainant) P.W. 2 Om Prakash injured witness, both sons of deceased Amber Yadav. P.W. 3 Changu Lal witness of inquest, P. W. 4 Ram Chandra, nephew of deceased Amber Yadav. P.W. 5 Mohd. Siddique the then Sub Inspector conducted the inquest of Prem Shanker, P.W. 6 Dr. R. K. Dubey conducted the post mortem of deceased Ambar Yadav, P. W. 7 HCP Ram Lal Kaithwal prepared the chick F.I.R., P.W. 8 Ranjeet Singh S. I. first Investigating Officer, P. W. 9 Dr. A. K. Pandey conducted the post mortem of deceased Prem Shanker, P. W. 10 Dr. Rakesh Pathak, Radiologist examined the injured Om Prakash (P.W.2) and proved his X-ray report, P. W. 11 Sub Inspector Udai Veer Singh second Investigating Officer after conducting the investigation submitted the charge sheet. Thereafter statements of the appellants Prithvipal Yadav and Dinesh Yadav were recorded under Section 313 Cr.P.C. They denied the prosecution case by submitting that they have been falsely implicated under the pressure of the police due to enmity. The injury report 38A/4 of Prithvipal Yadav was filed and to prove the said report Dr. Gyan Chandra Patel was examined as D.W. 1 who had proved the injury report, which was marked as Exhibit Kha. 1. Dr. Ashok Upadhyay was examined as D.W. 2 who had conducted X-ray, prepared the report of X-ray of the appellant Prithvipal Yadav on 22.12.2006 indicating head of distal phalanx of right little finger missing proved by him as Exhibit Kha. 2. In order to appreciate the prosecution case it is necessary to go through the testimony of the prosecution witnesses. P. W. 1 Vijay Bahadur is the complainant of the case and the son of the deceased Ambar Yadav. He deposed that Pitambar Yadav is the elder brother of his father. His son-in-law's name is Prithvipal Yadav (accused/appellant no.1). Son of Prithvipal Yadav is Dinesh Yadav (accused appellant no. 2). Prithvipal Yadav and Dinesh Yadav are the resident of village Sandilla, Raniganj, district Pratapgarh. A civil litigation about the land is going on between his father Ambar Yadav and Tau Pitambar. Pitambar had executed a sale deed of three bigha land in the name of his daughter Kulhirni's son Dinesh Yadav. Due to litigation on account of the sale deed Pitambar and his son-in-law Prithvipal Yadav and Dinesh Yadav son of Prithvipal Yadav bearing enmity with his family. Prithvipal Yadav was having a single barrel gun. His father was killed on 20.11.2006. At 11.30 A.M. he, his father Ambar, Prem Shanker, Om Prakash, Ram Chander were sitting near the road side in front of their house. Prithvipal Yadav and Dinesh Yadav came on a motorcycle. Prithvipal Yadav was having licensed gun. They alighted from the motorcycle and after getting it on stand, they hurled vituperative words to his father. Prithvipal Yadav fired upon his father. The shot hit his father on account of which he fell down and died instantaneously. Dinesh Yadav thereafter snatched the gun of his father and about to attack upon him and other persons. Dinesh Yadav had fired with his father's gun at Prem Shanker and had also assaulted Om Prakash with the butt of the gun who had also sustained injuries. Thereafter both Prithvipal Yadav and Dinesh Yadav escaped on their motorcycle. A report of the incident was got transcribed by Sudhir Kumar Dwivedi. He put his signature thereon. Thereafter he accompanied with Om Prakash (injured), Prem Shanker (injured), Changu Lal, Paras and Ram Chandra to the police station and registered the case. From the police station Prem Shankar and Om Prakash were referred to Beli Hospital for medical examination. While reaching to Beli Hospital Prem Shanker succumbed to the injury. He further deposed that he knew very well both the accused Prithvipal Yadav and Dinesh Yadav. He had proved the first information report, which was exhibited as Exhibit Ka. 1. He had also deposed that this incident was witnessed by his uncle Changu Lal, Om Prakash and Ram Chander. The witness was cross examined by the defense. ;