Nathuwa vs State
2018 Latest Caselaw 2576 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

								A.F.R.
 
					JUDGMENT RESERVED ON -24.08.2018
 
					JUDGMENT DELIVERED ON -14.09.2018
 

 
Case :- JAIL APPEAL No. - 5637 of 2007
 

 
Appellant :- Nathuwa @  Vishwanath
 
Respondent :- State
 
Counsel for Appellant :- From Jail, Dharmendra Dhar Dubey A.C,Jitendra Singh,Lakhan Singh Yadav
 
Counsel for Respondent :- A.G.A.
 

 
                             connected with 
 

 
Case :- CRIMINAL APPEAL No. - 423 of 2001
 
Appellant :- Birbal
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- A.S. Srivastava,D.D. Yadav
 
Counsel for Respondent :- Govt. Advocate
 
                           
 
			connected with 
 
Case :- CRIMINAL APPEAL No. - 522 of 2001
 
Appellant :- Dhunuwa
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Marendra Nath Singh,Shiv Kumar Singh
 
Counsel for Respondent :- Govt. Advocate
 

 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Om Prakash-VII,J.

(Delivered by Om Prakash-VII, J.)

1. All the appeals arise out of the same Sessions Trial and have been decided by a common judgment and as such they have been heard together and are being decided by this common judgment.

2. Jail appeal No. 5637 of 2007 has been filed by the appellant Nathuwa against the judgment and order dated 6.2.2001/14.2.2001 passed by IInd Additional Sessions Judge, Chitrakoot in S.T. No. 36 of 1998 (State Vs. Nathuwa alias Vishwanath and others) arising out of crime no. 24 of 1998, Police Station Mau, district Chitrakoot whereby appellant Nathuwa has been convicted and sentenced for the offence under Section 302 IPC for life imprisonment and fine of Rs. 10,000/- has also been imposed. In the event of non payment of fine appellant Nathuwa has been directed to undergo rigorous imprisonment for a period of six months. Connected Criminal Appeal No. 423 of 2001 and 522 of 2001 have been filed by appellants Birbal and Dhunuwa respectively by which they have been convicted and sentenced under Section 302/34 IPC and directed to undergo imprisonment for life and fine of Rs. 10,000/- each has also been imposed. In the event of non payment of fine both the said appellants i.e. Birbal and Dhunuwa have been directed to further undergo rigorous imprisonment for a period of six months.

3. Prosecution story as unfolded in the first information report (hereinafter referred to as F.I.R.), in nutshell, are as under :

4. On 7.4.1998 a written report Ext. Ka-1 scribed by one Daya Ram was moved by informant, P.W.-1 Kedar, at police station concerned mentioning therein that on 7.4.1998 informant and his son Badri (deceased) were talking on the platform in front of his house. At about 9.30 P.M. in the night accused appellant Nathuwa @ Vishwanath son of Suraj Pal armed with country made pistol, Birbal son of Sri Nath Kewat armed with lathi and Dhunuwa son of Sankhley also armed with lathi came at his house and started abusing to mother and sister of the informant and told that why you people are fishing at the same place where they do, despite their asking. On this, informant asked not to abuse, then accused appellant Dhunuwa and Birbal told accused appellant Nathuwa @ Vishwanth to kill them. At this accused appellant Nathuwa @ Vishwanath immediately opened fire with country made pistol which hit the son of the inofrmant namely Badri and he fell down from the platform. On hearing the use of abusive languages Siyaram son of Ram Das, Mahadev son of Hira Lal, Jawahar Lal son of late Sukhey reached there and exhorted accused persons thereafter they ran away towards the western direction. Deceased Badri had sustained injuries on his neck. Blood was oozing from the injuries. Informant and other persons gatherd there, tied the injuries with the cloth and keeping him on the cot proceeded for police station concerned. As and when they reached on the main road the informant along with injured (deceased) boarded on a truck which was loaded with sand and proceeded towards police station. As soon as they reached Shivpur turn the injured Badri died. Dead body was unloaded from the truck and reached the police station with the request to take legal action against the culprits on the basis of written report. Chik F.I.R. (Ext. Ka- 11) was registered on 7.4.1998 at 23.25 hours for the offence under Section 302 IPC against the accused appellants. Entry was made in the General Diary on the same day as Ext. Ka-12. Investigation started and concerned police proceeded to the place of occurrence leaving the dead body in the campus of the police station concerned. In the morning police visited the place of occurrence and also took the blood stained earth and plain earth from the place of occurrence. Site plan (Ext. Ka- -3) was prepared by the Investigating Officer. Memo prepared in respect of blood stained earth and plain earth keeping the same in sealed boxes is Ext. Ka-2. Thereafter statement of the witnesses was recorded and search of accused persons was made. As per the prosecution, Investigating Officer prepared inquest report after returning from place of occurrence. Inquest report is Ext.-Ka-4. Other papers which were prepared along with the inquest report were marked as Ext. Ka-5 to Ext. Ka-8. Dead body was kept in sealed cloth and a sample seal was prepared. The same was handed over to Constables to carry it to the mortuary. The Investigating Officer has also sent the blood stained and plain earth taken from the place of occurrence, to the Forensic Science Laboratory for chemical examination through the Constable of the police station concerned. On completion of entire investigation and recording the statement of the witnesses charge sheet (Ext. Ka-11) was submitted against the present appellants. Report of the Forensic Science Laboratory in respect of the blood stained earth and clothes taken from the body of the deceased was also tendered by the prosecution which is Ext. Ka-15.

5. Post mortem on the body of the deceased was conducted on 8.4.1998 at 11 A.M. Deceased was found to be 35 years of age, probable time of death was half day before post mortem, deceased was of average body built, rigor mortis was present in upper and lower limb, decomposition absent.

6. On examination of the body, following ante mortem injuries were found :

(I) Fire arm lacerated wound of entry 4 cm x 2.5 cm x through and through the neck on the right pleura cavity on medial end of right clavicle collar of abrasion present. Margin of the wound inverted. Tattooing and scorching absent. Direction of wound is antentistoniously (rt to left) and upward

(II) Fire arm lacerated wound of exit 1.5 cm x 1.5 cm through and (in continuously with injury no. 1) on middle of neck one cm. Above the C-7 vertibral spine level. Rt. sided clevical fractured. Rt. sided neck muscle, vessels, nerves, soft tissues lacerated. Rt. pleura lacerated.

7. Esophagus was found congested, stomach contains about 50 M.L. of semi digested food, small intestine was empty but large intestine was full of fecal matter and gases. Cause of death was shock due to ante mortem injuries.

8. Cognizance was taken by the concerned Magistrate on the charge sheet. Since matter was exclusively triable by the Sessions Judge, was committed to the court of Sessions.

9. In order to prove its case, prosecution examined P.W.-1 Kedar (informant, father of the deceased) who claimed himself to be present at the time of occurrence talking with the deceased; P.W.-2 Jawahar, who also claimed himself to be an eye witness of the incident; P.W.-3 Dr. B. K. Gupta, who conducted post mortem; P.W.-4 Jagmohan, an eye account witness; P.W.-5 Chandrabali Singh, who has prepared the inquest report and other police papers and also completed the investigation and submitted charge sheet in the matter; P.W.-6 Sukuru, eye account witness.

10. After closer of prosecution evidence, statement of the accused appellants was recorded under Section 313 Cr.P.C. in which they denied the prosecution case and showed ignorance about the preparation of inquest report and other police papers. It was also stated that witnesses examined in the matter have deposed against them due to family dispute. All the three accused appellants have made similar statement.

11. In their defence, the appellants examined D.W.-1 Munnu son of Mahanand and D.W.-2 Kamal Narayan son of Sangam Lal and a different version was tried to set up that one Vijay Bahadur caused injuries to the deceased Badri and accused appellants have been falsely implicated in this matter.

12. After closer of the evidence in the matter, Trial Court having heard learned counsel for the parties and appreciating the prosecution evidence, by the impugned judgment and order convicted and sentenced the accused appellants, as above.

13. Feeling aggrieved with this, present appeals have been filed by the appellants.

14. We have heard Sri Dharmendra Dhar Dubey, Amicus Curiae in Jail Appeal No. 5637 of 2007; S/Sri M. S. Pipersenia and Utsav, Advocate in Criminal Appeal No. 423 of 2001, Ms. Rashmi Srivastava, Amicus Curiae in Criminal Appeal No. 522 of 2001 and Sri Rishi Chaddha, A.G.A. for the State and have also gone through the entire record.

15. Assailing the findings recorded by the trial court in the impugned judgment and order, it was submitted by the learned counsel appearing on behalf of the appellants as well as Amicus Curiae that appellants are innocent and have not committed the present offence. Prosecution was not able to prove its case beyond reasonable doubt. Referring to the place of sitting of deceased and P.W.-1 and the place of standing of the accused appellants shown in the Ext. Ka-3, it was further argued that in no case fire made by the appellant Nathuwa could hit deceased and injuries found on the body of the deceased could not come in that manner. It was next contended that no source of light is disclosed at the place of occurrence. Incident took place in the dark night hour and some unknown persons have committed the present offence. Accused appellants were falsely implicated due to enmity. Referring to the statement of the P.W.-1, P.W.-2 and P.W.-4 it was also argued that there are major contradictions on materials points in their statements. Medical evidence is against oral evidence. Trial court mis-appreciated the prosecution evidence and also the provision of Section 34 IPC and has wrongly held guilty to the appellants Dhunuwa and Birbal. It was next contended that first information report was lodged belatedly. No plausible explanation is given nor prosecution was able to make it clear how scribe reached at Shivpur turn. First information report was not in existence at the time mentioned in it. At this juncture, learned counsel appearing for the appellants also referred to the statement of P.W.-5 and argued that Investigating Officer himself has admitted that after leaving the dead body in the campus of police station concerned he proceeded to the place of occurrence. This fact itself indicates that by that time first information report was not in existence. It was further argued that some other persons were detained by the police concerned in connection with this crime. This fact also indicate that first information report was not lodged by that time or first information report is ante timed document. Referring to the statement of defence witnesses, it was also pleaded that one Vijay Bahadur had committed the murder of deceased. Accused appellants were falsely implicated in this case.

16. Learned counsel appearing for the appellants also placed reliance on the following case laws in support of his submissions :

1. Nathu Singh and another Vs. State of M.P. through P.S. Porsa reported in 2008 Cri.L.J. 770

2. Devanand Dubey etc. Vs. State of Madhya Pradesh reported in 2007 Cri.L.J. 1576.

3. Devi Saran Vs. State of U. P. reported in MANU/UP/0254/2017.

4. Suresh and others Vs. State of U. P. reported in 2016 (92) ALL. C.C. 808.

5. Pappu @ Avanish Vs. State reported in 2013 (80) ALL. C.C. 797

6. Jainul Haque Vs. State of Bihar reported AIR 1974 SC 45.

17. Per contra, learned A.G.A. argued that date, time and place of occurrence is not disputed and placed reliance on the statement of D.W.-1 and D.W.-2. It was next contended that prosecution version is clear and consistent that fire was made by Nathuwa @ Vishwanath which hit the deceased. Medical report also supports this fact. Deceased died due to injuries sustained by him. Accused, informant and other witnesses were familiar to each other. Some altercation also took place before firing, therefore, witnesses would have easily recognised the accused appellants. It was next contended that plea taken by the accused that present incident was committed by some Vijay Bahadur is not substantiated by evidence. Manner of lodging of first information report has been properly and clearly explained by the prosecution. Daya Ram, scribe of the written report reached at Shivpur turn, who prepared the written report on dictation of the informant. Minor variations on the point of place of preparation of written report and other documents (police papers), statement of P.W.-1, P.W.-2 and P.W.-4 which are supported by medical evidence cannot be disowned. Referring to the findings recorded by the Trial Court it was next contended that all the accused appellants have participated in committing the present offence. Birbal and Dhunuwa armed with lathi were also present and have made exhortation to kill the deceased. Thereafter accused appellant Nathuwa @ Vishwanath opened fire at the deceased. Thus trial court has rightly convicted and sentenced all the appellants in the present matter. All the ingredients to apply provision of Section 34 IPC have been proved by the prosecution. There is no illegality or infirmity in the impugned order.

18. We have considered the rival submissions and have gone through the entire record as well as the case laws relied upon by the parties.

19. In this matter, as is evident from the record, incident is said to have taken place on 7.4.1998 at 9.30 P.M. in front of the house of informant and deceased. Prosecution case is that at the time of incident informant and deceased both were sitting on the platform situated in front of his house and talking with each other. Accused appellants came there. Some altercation took place between them regarding place of fishing and on exhortation of the accused appellants Birbal and Dhunuwa, accused appellant Nathuwa @ Vishwanath opened fire. Injured was immediately taken on the cot to the police station concerned. On the road injured was shifted in a truck and proceeded to police station. On the way at Shivpur turn injured died, therefore, the driver of the truck unloaded the dead body. Prosecution case is also that informant was accompanying the dead body and reached the police station. It was night hour. First information report was lodged at 23.25 hours on 7.4.1998 itself after about two hours of the incident. Distance between the place of occurrence and police station is about 12 kms. If entire facts and circumstances of case including mode, manner and method adopted by the informant and his companion are taken into consideration to reach the police station it cannot be said that first information report was not in existence at the time mentioned in it. Learned counsel appearing for appellants referred to statement of P.W.-5 Chandrabali Singh, Investigating Officer and has argued that this witness himself has admitted that he proceeded for the place of occurrence in the night itself leaving the dead body in the campus of the police station indicate that by that time first information report was not in existence. If the submissions raised on behalf of appellants is compared with the police papers prepared by P.W.-5 at the place of occurrence in the night of 8.4.1998 at 00.30 hrs. indicate that crime number has been clearly shown in the record i.e. Ext. Ka.-2. If such is the position, submissions raised by learned counsel for appellants cannot be accepted. It might be possible that to maintain law and order situation, investigating officer would have proceeded to the place of occurrence in the night itself but this fact itself is not sufficient to disbelieve prosecution case especially when there are eye account witnesses. It is settled legal position that prosecution case cannot be disbelieved only on the basis that first information report was lodged belatedly or it is too prompt.

20. As far as date, time and place of occurrence is concerned, reference may be taken of the statements of D.W.-1 Munnu and D.W.-2 Kamal Narayan examined on behalf of the accused appellants. Both the witnesses in their examination in chief have clearly admitted the date, time and place of occurrence. Only statement of these two witnesses examined on behalf of the accused appellants is that present appellants were not involved in committing the present offence but one Vijay Bahadur had caused fire arm injuries to the deceased. Thus on the strength of statement of D.W.-1 and D.W.-2, we do not find any necessity to discuss the prosecution evidence on this aspect and we are of the view that findings recorded by Trial Court in the impugned judgment and order in respect of date, time and place of occurrence are in accordance with law which is based on correct appreciation of evidence and facts.

21. Now in the present matter, issues remained to be considered; are

(1) Whether P.W. 1, P.W.-2 and P.W. 4 were present on the spot or not and have seen the incident or not ?

(2) Whether accused appellants have committed the present offence or the person named by D.W.-1 and D.W.-2 has committed this offence.

22. Before dealing with these submissions, we would like to discuss the issue in respect of availability of source of light at the place of occurrence at the time of incident and motive part.

23. As far as the motive assigned in the matter is concerned although there are eye account witnesses in the matter and in that situation motive loses its importance but where specific motive has been taken by the prosecution against the accused appellants the same must have been proved. In the instant case, as per written report Ext.Ka-1, altercation took place in the form of abusing between the parties regarding place of fishing. P.W.-1 when examined before Court did not say anything in the examination in chief on this point. Same position is in the statement of P.W.-2. P.W.-4 although has supported this fact as he has reached the place of occurrence after hearing hue and cry. Thus facts mentioned in the first information report regarding motive is supported by P.W.-4. On close scrutiny of entire evidence cumulatively, we are of the view that prosecution was able to prove motive assigned in the matter by the statement of P.W.-4. If this fact that motive is not proved in the matter is taken into consideration then also there are eye account witnesses, therefore, on the score of motive prosecution case cannot be thrown out or disbelieved.

24. P.W.-1 who claimed himself to be eye witness has stated that at the time of incident he along with deceased was sitting on a platform in-front of his house and both were talking with each other. Accused appellants reached there and some hot talk started between them whereafter present incident took place. Place of occurrence is situated in front of the house of P.W.-1. Time of incident is 9.30 P.M. Thus presence of P.W.-1 at the place of occurrence cannot be doubted. Initially altercation started between the accused appellant Nathuwa and the informant. If the contents of first information report and statement of P.W.-1 are taken into consideration cumulatively it appears that fire was opened upon the informant P.W.-1 which hit the deceased who was also sitting on the same platform. Accused, informant, deceased and witnesses all were familiar to each other. Some altercation took place between them before actual incident. Thus in the facts and circumstances of the case, finding recorded by Trial Court that no difficulty would have been faced by witnesses in recognising accused persons cannot be termed to be illegal. It is also pertinent to mention here that the statements of D.W.-1 and D.W.-2 if are taken into consideration then also witnesses examined in the present matter on behalf of prosecution would have easily recognised accused appellants committing present offence especially when there was moon light. Thus submission raised on behalf of appellants about non availability of source of light is not acceptable. Finding recorded by the trial court is also need no interference.

25. As far as presence of P.W.-1, P.W.-2 and P.W.-4 on the spot is concerned, as has been discussed herein above, P.W.-1 was present from the very beginning at the place of occurrence. Hot talk took place between accused appellant Nathuwa @ Vishwanath and this witness regarding the place of fishing. Thus, presence of this witness at the place of occurrence which is situated in front of the house of the appellants cannot be doubted. If the statement of P.W.-2 is taken into consideration in its entirety it also emerges that this witness reached on the spot immediately after hearing hue and cry. House of this witness is also situated in the same vicinity. Incident is said to have taken place in the month of April. As per this witness he had to go to his "Khalihan" after dinner. It is pertinent to mention that generally village people after taking dinner go to field to look after their "Khalihan" and also sleep there in the night. Thus reason explained by P.W.-2 about his presence on the spot cannot be disbelieved. Presence of this witness at the place of occurrence, hearing hue and cry is probable and natural one. Firing is said to have been made before this witness also.

26. As far as presence of P.W.-4 is concerned, he has admitted that at the time of altercation he was inside the house and after hearing hue and cry he reached at the place of occurrence. If the distance between the platform where deceased and P.W.-1 were sitting and talking and the house of the informant is taken into consideration presence of P.W.-4 at the place of occurrence after hearing hue and cry can also not be doubted. Statement of P.W.-4 on material points is not contradictory. Presence of P.W.-4 at the place of occurrence also cannot be doubted especially when incident took place 9.30 P.M. infront of the house of this witness. He is a natural and probable witness.

27. Now we proceed to deal with medical evidence. P.W.-3 Dr. B. K. Gupta who has conducted the post mortem on the body of the deceased found two injuries, one fire arm entry wound and other exit wound. Both the injuries were connected with each other. Injury was found downward to upward. Since time of death of the deceased is not disputed by the defence witness examined in the matter who have also admitted that deceased was done to death by fire arm injuries then in our considered opinion medical evidence in the present matter fully support oral version of the prosecution witnesses.

28. Now the question remains whether the facts mentioned in the first information report and stated by the prosecution witnesses regarding the manner and involvement of accused appellants in the present offence are true or oral statements made by D.W.-1 and D.W.-2 are true. It may be mentioned here that no complaint was ever made on behalf of accused appellants' side at any stage of investigation or trial nor there is any first information report that present incident was committed by one Vijay Bahadur. Presence of P.W.-1, P.W.-2 and P.W.-4 at the place of occurrence when the incident took place is natural and probable one. D.W.-1 and D.W.-2 are the chance witnesses. Their testimony cannot be relied upon disowning the clear and consistent statement of P.W.-1, P.W.-2 and P.W.-4 on material points. It is also clear from the statement of D.W.-1 and D.W.-2 that Vijay Bahadur was in jail at the time of occurrence. Thus the manner and mode of the incident stated by P.W.-1, P.W.-2 and P.W.-4 are more believable and probable than the statement of D.W.-1 and D.W.-2.

29. As far as the involvement of accused appellants in the present matter and role played by them is concerned, deceased died due to fire arm injuries caused upon him. In the medical examination, one fire arm entry wound and one exit wound was found upon the body of the deceased. Statements of P.W.-1, P.W.-2 and P.W.-4 are clear and consistent that accused appellant Nathuwa @ Vishwanath opened fire upon the informant which hit deceased and due to that injuries he died on the way when he was being taken to police station concerned. Since there is no inconsistency in the statements of P.W.-1, P.W.-2 and P.W.-4 about the involvement of accused appellants Nathuwa @ Vishwanath, therefore, finding recorded by the trial court in regard to involvement of accused appellants Nathuwa @ Vishwanath cannot be termed to be illegal.

30. So far as involvement of the accused appellants Birbal and Dhunuwa is concerned, in the first information report they are assigned with the weapon lathi. Only allegation against them is that when informant asked the appellants not to abuse them these two appellants stated that " मारो सालों को बचने ना पाये" (kill them and be not spared). P.W.-1 when examined before the Court on oath stated same fact. P.W.-2 has also stated the same fact against the accused appellants Birbal and Dhunuwa. He has also assigned the weapon lathi to these two accused appellants. P.W.-4 Jagmohan has also stated the same fact that accused appellants Dhunuwa and Birbal have exhorted the accused appellants Nathuwa @ Vishwanath to kill the informant but in examination-in-chief he assigned the weapon "pharsa" to the accused appellant Birbal and lathi to the accused appellant Dhunuwa.

31. As far as role played by accused appellants Dhunuwa and Birbal in the present matter is concerned, if the evidence available on record is taken into consideration in light of the settled legal position, except to joint statement said to have been made by both the accused there is no other evidence to implicate these two appellants in the present matter. Both these appellants have also not actively played any other role nor they caused injury to the deceased nor took part in hurling abuses to informant. If the prosecution evidence regarding involvement of these two appellants on the basis of exhortation said to have been made by them is excluded nothing is on record to connect them with the present matter. There is also no evidence regarding pre-meditated plan of accused appellants at any point of time prior to the incident. P.W.-4 has stated that accused Dhunuwa was armed with "pharsa". Since there is joint statement of these two accused appellants on point of exhortation and what actual words were used by these two appellants separately in exhorting the accused appellant Nathuwa @ Vishwanath have not been made clear by the prosecution. It appears improbable and unbelievable that both accused appellants would have made exhortation simultaneously in the same voice using the same words. Attending circumstances emerged on the spot at the time of occurrence also do not satisfy ingredients of Section 34 IPC. Thus, applying rule of caution and also taking into consideration that evidence of exhortation on the basis of evidence available in the matter is a very weak piece of evidence, joint liability of the accused appellant Dhunuwa and Birbal in committing the present offence along with the accused Nathuwa @ Vishwanath on the basis of evidence available on record cannot be held. Participation regarding involvement of these two appellants on the basis of foregoing discussion appears to be doubtful. Finding recorded by the trial court regarding involvement of these two appellants is not sustainable. Thus applying the rule of caution they are liable to be extended benefit of doubt as such prosecution was not able to prove participation of accused appellants Dhunuwa and Birbal on the ground of joint liability taking recourse to Section 34 IPC. Conviction and sentence imposed upon accused appellants Dhunuwa and Birbal for the reasons discussed herein above is not sustainable and appeals filed by them against impugned judgment and order are liable to be allowed.

32. Jail Appeal filed by accused appellant Nathuwa @ Vishwanath, for the reasons discussed herein above, having no merit is liable to be dismissed as prosecution has proved charge under Section 302 IPC against him beyond reasonable doubt and findings of trial court need no interference.

33. Criminal Appeal No. 423 of 2001 (Birbal Vs. State )and 522 of 2001 (Dhunuwa Vs. State )are allowed. Judgment and order of conviction and sentence dated 6.2.2001/14.2.2001 passed by Trial Court challenged in Criminal appeal no. 423 of 2001 (Birbal Vs. State) and 522 of 2001 (Dhunuwa Vs. State) in respect of accused appellants Birbal and Dhunuwa is hereby set aside. The accused appellants Birbal and Dhunuwa are found not guilty for the offence punishable under Sections 302/34 IPC. They are acquitted of all the charges framed against them. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged from their liability.

34. Judgment and order of conviction and sentence dated 6.2.2001/14.2.2001 passed by Trial Court in respect of appellant Nathuwa @ Vishwanath challenged in Jail Appeal No. 5637 of 2007 is hereby confirmed. Jail Appeal No. 5637 of 2007 is hereby dismissed. Appellant Nahuwa alias Vishwanath, if not in custody, is directed to surrender before concerned Court immediately to serve out remaining sentence.

35. A copy of this judgment be kept on record of Criminal Appeal No. 423 of 2001 (Birbal Vs. State) and Criminal Appeal No. 522 of 2001 (Dhunuwa Vs. State).

36. Keeping in view provisions of Section 437-A Cr.P.C., appellants Birbal and Dhunuwa are directed to forthwith furnish a personal bond of the sum of Rs. fifty thousand and two reliable sureties each in the like amount before Trial Court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the appellants on receipt of notice thereof shall appear before Hon'ble Supreme Court.

37. Let a copy of this judgement along with lower court record be sent to the Sessions Judge concerned for compliance. A compliance report be sent to this Court.

38. Sri Dharmendra Dhar Dubey and Ms. Rashmi Srivastava, learned Amicus Curiae both have assisted Court very diligently. We provide that they shall be paid counsel's fee as Rs. 10,000/-, each. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad, to Sri Dharmendra Dhar Dubey and Ms. Rashmi Srivastava, Amicus Curiae, without any delay and, in any case, within 15 days from the date of receipt of copy of this judgment.

Order Dated :-14-09-2018.

Sachdeva