Suresh Kumar Gupta, J. - (1.) This criminal appeal is preferred against the judgment and order dated 03.09.1987, passed by the VI Additional Sessions Judge, Bareilly in S.T. No. 559 of 1985 (State Vs. Nankoo & Others), convicting the appellants Nankoo, Mukhtar, Rajendra and Ram Niwas under Section 302 149 I.P.C, to life as also under Section 148 I.P.C. to two years rigorous imprisonment. Appellant, Ram Niwas, is further convicted/sentenced to one year R.I under Section 147 I.P.C. All the sentences to run concurrently. 1.The case of prosecution in brief is as under:- A)P.W-1, the informant alleged that his son Suraj Pal (deceased) had developed illicit relationship with the wife of accused-appellant Nankoo who also used to stay together, relatives of Nankoo had taken a serious offence to this infidelity. On 20.8.1985 at around 6.30 P.M, Suraj Pal had gone to ease himself towards north of the village. Accused Nankoo and Mukhtar armed with kanta (sharp weapon) his cousin Ram Nivas with lathi, Jawahar and Rajendra with tamancha (country made pistol), Rajeshwar with bhala (spear) gheraoed Suraj Pal on the exhortation of Nankoo that Suraj Pal be not spared, Rajendra fired two shots at Suraj Pal/ deceased who fell down to be then assaulted with lathi and kanta blows. On cries for help P.W-1, nephew Raj Murari, Nathoo (P.W-2) and others reached the scene to witness the occurrence. With the arrival of witnesses and on their shouting accused fled towards west of the village, witnesses also attempted to chase but accused managed good their escape. The body of the deceased lay in the fields of Naushey. B. On above allegations, an F.I.R. (Ex. Ka-1) as Case Crime No. 133 of 1985 initially registered against accused Nankoo, Ram Niwas, Rajeshwar, Mukhtar and Rajendra under Sections 147, 148, 149, 302 I.P.C. on 21.08.1985 at 3:10 a.m. at Police Station Fatehganj (East), District Bareilly at a distance of 20 kilometers to the west. C.PW-4, A.K. Gaur the Investigating Officer reached the spot around 5.30 A.M and commenced investigation. On his direction A.S.I. Teja Singh prepared site plan (Ex. Ka-12), Inquest Report (Ex. Ka-5) and after completion of paper work dead body of the deceased was sent to district hospital for autopsy at 7.30 A.M in presence of 2 constables. D.PW-3/Dr. P.K. Shrotriya, conducted the autopsy of the deceased and prepared the autopsy report (Ex. Ka-2) on 21.08.1985 at 4:00 P.M The autopsy indicated following injuries on the body of the deceased:- i.Lacerated wound 5 cm X 1 cm X skull deep on the centre of head 9 cm above right eye brow. ii.Lacerated wound 3 cm X 5 cm X skull deep on right side head 10 cm above right ear. iii.Incised wound 3.5 cm X 5 cm X skull deep on right side head 5 cm above right ear. iv.Incised wound 5 cm X 1 cm X skull deep on back of scull 10 cm behind and above left ear. v.Incised wound 4 cm X 1 cm X skull deep on back of head 9 cm above left ear. vi.Incised wound 4 cm X 1 cm X skull deep on back of head 9 cm above left ear. vii. Lacerated wound 2.5 cm X 1 cm on the back of skull 1 cm below injury no. 6. viii. Lacerated wound 2 cm X 5 cm X muscle deep 1 cm. Behind and below injury no. 7. ix. Lacerated wound 2 cm X 1/2 cm X muscle deep 1 cm below injury no. 8. x. Incised wound 2.54 cm X 1 cm X skull deep 1 cm below injury no. 9. xi. Incised wound 7 cm X 1.5 cm X muscle deep on the right side abdomen 4 cm above right inguinal region transversely placed. xii. Abrasion 1 cm. X 5 cm on left side chest 4 cm below left nipple. xiii. Abrasion contusion 5 cm X 2 cm on back of left arm in middle. xiv. Incised wound 1 cm X 5 cm X skin deep on iliac crest. xv. Incised wound 2 cm X 1 cm X cavity deep on right side back of chest 14 cm below right lower angle of scapula. xvi. Incised wound 2 cm X 1 cm X muscle deep in central line of bank at the lable of thoracic 8th vertebrae. xvii. Incised wound 1 cm X 1 cm X on left side back of chest 3 cm lateral of central line at the lable of thoracic 8th vertebrae. xviii. Incised wound 2 cm X 1 cm X muscle deep in central line of back at the lable of 3rd lumber vertebrae. xix. Gun shot wound 3.5 cm X 2 cm on right lateral aspect of abdomen 6 cm. Above right iliac crest surrounded by blackening and tattooing in an area of 14 cm. xx. Abrasion 4 cm X 3 cm on middle aspect of left elbow. PW-3 opined that death was due to shock and haemorrhage as a result of ante mortem injury which had occurred a day ago. E.P.W-4, the I.O, recorded the statement of eye-witnesses and that of formal witnesses, carried out other investigational formalities. After completion of investigation charge-sheet (Ex. Ka-13) was submitted against abovementioned appellants including accused, Rajeshwar, case committed to Sessions, charges framed under aforementioned sections against the appellants. All the appellants denied the charges and claimed to be tried. F.The prosecution examined PW-1, Ram Das and PW-2, Nathoo as eye witnesses, rest as formal witnesses. G.The accused in their statements under Section 313 Cr.P.C, denied the prosecution version and stated that they have been falsely implicated due to enmity and completely denied their participation in the occurrence. No defence evidence was led.
(2.) The trial court vide judgment/order dated 03.09.1987 while convicting the appellants as above, acquitted accused Rajeshwar and as per record no appeal/revision against the acquittal. During pendency of the appeal, appellant no.3/ Mukhtar, died, appeal qua him stood abated on 09.07.2018.
(3.) We have heard Shri Saurabh Yadav for appellant no.1, Sri Rahul Mishra assisted by Sri Raghuvansh Mishra for appellant nos. 2 and 4 and Shri V.S.Rajbhar, the learned A.G.A, for the State and perused the record.;