Rukku vs State Of U.P.
2019 Latest Caselaw 5007 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
A.F.R.
 
Judgment reserved on 14.02.2019
 
Judgment delivered on 24.05.2019
 
Court No. - 1
 

 
Case :- CRIMINAL APPEAL No. - 2617 of 2017
 

 
Appellant :- Rukku
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Kamta Prasad,Mahesh Prasad Yadav,Rajiv Lochan Shukla
 
Counsel for Respondent :- G.A.,Dileep Gupta,Rajiv Lochan Shukla,Rajrishi Gupta
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Dinesh Kumar Singh-I,J.

(Delivered by Hon'ble Dinesh Kumar Singh-I,J.)

1. Heard Sri Mahesh Prasad Yadav and Sri Kamta Prasad, learned counsel for appellant, Sri Rajiv Lochan Shukla, learned counsel for the complainant and Sri Krishna Pahal, learned Additional Advocate General.

2. This criminal appeal has been preferred by Rukku S/o Hisamuddin against the judgment and order dated 12.4.2017 passed by Sessions Judge, Hamirpur in S.T. No. 127 of 2003 (State Vs. Rukku), whereby the accused-appellant has been convicted under Sections 148, 307 read with Section 149 and 302/149 IPC and has been sentenced with one year rigorous imprisonment and fine of Rs. 1,000/- under Section 148 IPC and in default of payment of fine one month additional rigorous imprisonment, with seven years rigorous imprisonment and fine of Rs. 3000, under Section 307 IPC and in default of payment of fine three months additional rigorous imprisonment, with life imprisonment under Section 302 IPC and fine of Rs. 5,000/- and in default of payment of fine six months rigorous imprisonment and it is further directed that all the sentences shall run concurrently.

3. In brief the prosecution case as per the F.I.R. is that on 26.1.1997 at about 7:30 pm, PW-1 Rajiv Shukla S/o Bhishma Prasad Shukla had gone to purchase articles with his servant Lallan S/o Pahalwan. His elder brother Rakesh Kumar Shukla, his two sons Gudda and Chandan, informant's son Vipul, Sri Kant S/o Gaya Prasad Pandey and Ved Prakash S/o Bhagwati Saran Nayak had gone to the place of informant's elder brother-in-law (bahnoi), who was living in Sunrahi Gali and they were returning home from there. As soon as they reached near gun shop of Naseem, having seen him and Lallan, they stopped the vehicle and started talking, in the meantime, from out of house of Naseem, Ashok Singh Chandel, Ex. M.L.A., Shyam Singh S/o Birbal r/o Sumerpur, Sahab Singh, Jhandu Arakh resident of Pachkhura Khurd, P.S. Sumerpur, driver of Ashok Singh Chandel namely Rukku (appellant), resident of Khalepur, Hamirpur and gunner, armed with rifles and guns in their hand, came out and in prosecution of their common object, started making fire upon his elder brother and other persons, who were with him named above. Hearing that fire, from the side of market, Raghuvir Singh, a contractor of liquor, his son Dabbu Singh, Pradeep Singh S/o Shivnath Singh, Uttam Singh, Bhan Singh Advocate also came there by vehicle and getting down from it, started making fires from guns and rifles, which they were wielding in their hands, by which Sri Kant and Ved, who were sitting behind in the vehicle, received fire arm injuries and firing was made by Rakesh Kumar Shukla, Gudda, Chandan and Vipul from the front, which hit all the four and they fell down in the vehicle. Due to firing, stampede ensued and the market was closed. After receiving the information of this occurrence, his elder brother Rajesh Kumar Shukla, Ravi Kant Pandey and Bhagwati Saran Nayak, Sri Prakash, Anil and many other persons of the 'Mohalla' reached the place of occurrence. Vipul and Chandan have received minor injuries and rest of the three were being taken to the hospital but as soon as they reached near house of Parma Pandit, from the front side, Raghuvir Singh and others and Ashok Singh Chandel along with his companions again came there and exhorted that no person of this family should be allowed to escape and none of them should be left alive and saying so, started making indiscriminate firing, by which his elder brother Rajesh Shukla received fire arm injuries, who fell down and he himself and Ravi Kant Pandey also received injuries. In the melee, which ensued in this occurrence, people, who were with him, concealed themselves hither and thither and, thereafter, coming close and continuously firing, the licensed gun of his father, which was being carried by his elder brother Rajesh Kumar Shukla, was taken away and all the accused fled from there by their vehicles and after the accused having left, the informant saw that his brother Rakesh Kumar Shukla, Gudda and Rajesh Kumar Shukla had died on the spot, while treating Sri Kant Pandey and Ved Prakash to be alive, all of them were taken to the hospital, where doctor declared them dead. Further it is mentioned that in 1995, Sanjay Shukla of Sumerpur and Shiv Narayan Mishra of Degree College, were murdered by Shyam Singh and others, in which, from the side of deceased persons, informant's brother Rajesh Kumar Shukla was doing pairvi and the Sri Kant's brother Rama Kant Pandey (Advocate) had done pairvi against Shyam Singh and others and in the current elections, the opposition was made of Ashok Singh Chandel, because of which, Ashok Singh Chandel, Raghuvir Singh and Shyam Singh were having inimical relationship and Ashok Singh Chandel had taken side of Shyam Singh and others in 1995. The informant has further written in the F.I.R. that he had come for lodging the report after leaving the deceased in hospital, therefore, his report may be lodged and the other injured person should be got medically examined in police protection.

4. Upon the written report (Ext. Ka-1) containing above details, case crime no. 33 of 197 was registered at P.S. Kotwali, Sub-district Hamirpur under Section 147, 148, 149, 307, 302, 34 and 395 IPC against (A-1) Ashok Singh Chandel (Ex. M.L.A.), (A-2) Shyam Singh S/o Birbal Singh, resident of Sumerpur, (A-3) Sahab Singh S/o unknown, (A-4) Jhandu Arakh, resident of Pachkhura Khurd, (A-5) Driver of Ashok Singh Chandel namely, Rukku ( present accused appellant), resident of Mohalla Khalepur, Hamirpur, (A-6) gunner, (A-7) Raghuvir Singh, liquor contractor, (A-8) Son of Raghuvir namely Dabbu Singh, (A-9) Pradeep Singh S/o Shiv Nath Singh, (A-10) Uttam S/o unknown, (A-11) Bhan Singh Advocate S/o unknown, (A-12) Naseem and others, by PW-9, Constable Mahesh Singh, who prepared chik F.I.R., which is Ext. Ka-20 and made entry of this case in G.D. at report no. 52, time 20:10 hours, on 26.1.1997, which is Ext. Ka-21.

5. Investigation of this case was assigned to S.I. K.D. Pal, who was examined as PW-10 and has stated in examination-in-chief that on 7.1.2000, he had given an application before court under Section 299 Cr.P.C. against Rukku and Ashok Singh Chandel in his hand writing, which is enclosed in the file of S.T. No. 145 of 2000 and photocopy of the same after being compared with the original, was filed by him in this case, which is Ext. Ka-22.

6. Thereafter investigation was handed over to S.I. Kailash Chandra, who has been examined as PW-14 and has stated in examination-in-chief that he made raids for arrest of the accused Ashok Singh Chandel and Rukku on 27.9.1997 and 28.9.1997, 30.9.1997, 1.10.1997 and 4.10.1997 but could not arrest them and an application was moved in the court of Special Judge on 29.9.1997 for attachment of property of both the accused. On the said application, S.D.M. Sadar fixed 15.10.1997 and on 1.12.1997 his statement was recorded before the court under Section 299 Cr.P.C., which is available in the summoned file.

7. Thereafter investigation was handed over to S.I. Uma Shanker Singh (PW-15), who had departed from the police station on 12.5.2003, vide report no. 6, time 3:05 hours along with Constable Satyadev Yadav and Radhe Krishna Sharma for Mohalla, Subhash Bazar and Ramedhi and reached near Betwa Pul, which was near Hanuman temple, where an information was received from informer that the accused of this crime number namely, Rukku @ Rukumuddin was available near Lakshmibai Tiraha, who could be arrested, if hurry was made. Believing this information, the said police party came near Lakshmibai Tiraha and arrested Rukku @ Rukumuddin (present accused-appellant) at 5:30 am and interrogated him. He was lodged in P.S. vide report no. 10 time 6:10 a.m., dated 12.5.2003, which is Ext. ka-59

8. Investigation of this case was assigned to Lal Man Verma (PW-12), who has stated in examination in chief that immediately after copying the Chick F.I.R. and G.D. in case diary, the same day he reached the place of incident and recorded the statement of informant Rajiv Shukla and made inspection of the place of incident in presence of the eye-witnesses and prepared site plan, the original of which was filed in file of S.T. No. 145 of 2000 and the copy of the same after comparing it with the original, is filed in this case which is Ext. Ka-23. He has further stated that at the time of occurrence, lot of blood had spread on the place of incident. From the metal road, after collecting Koltar mixed with soil, which was blood smeared as well a ordinary soil they were kept in two different containers and its Fard was prepared, the original of which is placed in the file of S.T. No. 145 of 2000 and photo copy of the same after being compared with original has filed in the present case, which is Ext. Ka-24. Besides that he had also found 12 empty cartridges from the place of incident out of which six were empty of 12 bore and 6 of brass (pital), which were taken into custody and its Fard was prepared, original of which is in the file of S.T. No. 145 of 2000 and a photocopy after comparing with the original, is placed in the present case, which is Ext. Ka-25. Further he has stated that one Manarth card first class issued by Railway Board, New Delhi was found lying belonging to Ashok Singh Chandel, which was taken in possession by the police and its Fard was prepared, original of which is placed in the connected file and the photocopy of the same after being compared is placed on this file, which is Ext. Ka-6 and it bears the photograph of Ashok Singh Chandel. On the Manarth card, First Class No. 30422 New Delhi was written, which is marked as material Ext. 64. Further, this witness has stated that from the place of incident, one Jonga was also taken in possession in foot-rest of which blood was found, the piece of which was cut out and taken into possession by police. In the said vehicle, some broken pieces of glass were also found and Fard of these articles was prepared and photo copy of the same after being compared with the original is placed on record, which is Ext. Ka-27. The registration number of the said Jonga is 4 MF 5394. The same day he made search for the accused and, thereafter, went to the Civil Hospital, Hamirpur, where five dead bodies related to this crime number were available. The inquest report of the deceased Rakesh Kumar Shukla and Rajesh Shukla were got prepared by him by S.I. Sri R.N. Singh Pal in his supervision and, thereafter, the same was got signed by Sri R.N. Singh Pal as well as Panchas. The original inquest report of these dead bodies were kept in connected S.T. and a photocopy of the same after comparing with the original is placed on record, which are Ka-28 relating to deceased Rakesh Kumar Shukla and chitthi C.M.O., chitthi R.I., form No. 13, form No. 33, photo nash, the original of which are kept in the file of connected S.T. and the photocopies of the same after being compared with the original are placed in the present case, which are Exts. Ka-29, Ka-30, Ka-31, Ka-32 and Ka-33. The original inquest report of the deceased Rajesh Shukla besides that chitthi R.I., chitthi C.M.O. Form No. 13, Form No. 33 and photo nash, original of which are kept in the connected S.T. file and photocopy of the same after being compared with the original are placed in the present file, which are Exts. Ka-35, Ka-36, Ka-37, Ka-38 and Ext. Ka-39 respectively. The inquest of the deceased Sri Kant Pandey was conducted on 27.1.1997. This inquest report and all the above mentioned documents related to post-mortem with respect to deceased Sri Kant Pandey were kept on file of the connected S.T., photocopies of which were compared with the original and, thereafter, placed in the present file, which are Exts. Ka-40, Ka-41, Ka-42, Ka-43 and Ka-44.

9. The inquest of the deceased Gudda @ Ambuj was also conducted on 27.1.1997 and other original inquest and other documents relating to post-mortem concerning him were kept in connected S.T. file, photo copies of which are filed in the present file after being compared with the original, which are Ext. Ka-45, Ka-46, Ka-47, Ka-48 and Ka-49. The inquest of deceased Ved Prakash was conducted on 27.1.1997 and his inquest report and other connected documents relating to post-mortem were kept on the connected S.T. in original and photocopies of the same were placed in the present file after being compared with the original, which are Ext. Ka-50, Ka-51, Ka-52, Ka-53 and Ka-54.

10. All the five dead bodies were sealed in separate clothes and their sample seals were prepared and were handed over to the police personnel for being taken for the post-mortem. Thereafter, on 27.1.1997, he recorded statement of witness Lallan S/o Pahalwan and scribe of Tehrir, Saraswati Saran in District hospital, Hamirpur and after coming to the P.S. from there also recorded statement of constable Mahesh Singh. The investigation was continued from 26.1.1997 to 27.1.1997. On 27.1.1997 again, he made search for the accused at Lakshmibai Tiraha. After getting information by informer that four accused were available in the house of Naseem but by rear door of the house, they were about to flee in dark by the side of river Betwa, taking this information to be correct, he along with S.H.O. reached Ramedhi Tiraha and from there after parking his jeep there, he went on foot by the side of river Betwa and reached the rear door of house of Naseem and found that four accused were coming out of the door of the said house and on the pointing out of the informer, all the four were arrested on 27.1.1997 at 6:30 pm and were searched personally. From the possession of Sahab Singh, resident of Kalolinagar, P.S. Lalpura, District Hameerpur, one rifle N.P. bore number being 20620 was recovered apart from one belt, which he was wearing on waist containing 10 live cartridges, which were taken into police possession and its Fard was prepared by S.S.I., R.S. Tiwari in the light of torch and the accused had stated in this regard that the same belonged to Ex. M.L.A. Ashok Singh Chandel. All these articles were sealed on the spot and its Fard was prepared, original of which is kept on the connected S.T. and its photocopy after being compared with the original is placed on record, which is Ext. Ka-55.

11. This witness in cross-examination in paragraph 22 has stated that on 22.7.1997, after collecting sufficient evidence against accused Raghuvir Singh, Dabbu, Pradeep, Shyam Singh, Sahab Singh, Jhandu and Uttam Singh, Bhan Singh and Naseem, submitted charge sheet and also charge sheet was submitted against accused Ashok Singh Chandel and Rukku in abscondance, original of which is in the connected S.T., photocopy of which after being compared with the original, was filed in the current file as Ext. Ka-56.

12. On the basis of above evidence on record charge was framed against the appellant under Section 147, 148, 307/149 and 302/149 IPC to which he pleaded not guilty and claimed trial.

13. In order to prove prosecution case, Rajiv Kumar Shukla (informant), brother of the deceased as well as injured as PW-1, Rama Kant Pandey as PW-2, Dr. N.K. Gupta as PW-3, S.R Gupta as PW-4, Dr. P.N. Parya as PW-5, Dr. R.S. Gupta as PW-6, Saraswati Saran, scribe of the F.I.R. as PW-7, Malkhan Singh as PW-8, Constable Mahesh Singh (H.M.) as PW-9, S.I. K.D. Pal as PW-10, Chandan Shukla as PW-11, S.I. Lalman Verma as PW-12, Munna Lal Mishra as PW-13, S.I. Kailash Chandra as PW-14, S.I. Uma Shanker Singh as PW-15, Vijay Shankar Tiwari as PW-16 and Krishna Pal Singh as CW-1, were examined.

14. Thereafter the prosecution evidence was closed and the statements of accused were recorded under Section 313 Cr.P.C., in which he has taken plea of false implication due to animosity. To question no. 31 that he along with Ashok Singh Chandel had surrendered before court and had got themselves bailed out and thereafter had absconded and many writ petitions were filed before High Court as well as Supreme Court, copies of which are on record, this witness has stated that his counsel and the counsel of Ashok Singh Chandel were one and the same. He had engaged the said counsel subsequently and the entire proceeding was conducted by him only. To question as to whether he has to say anything else, he responded that he would give written statement but there does not appear to be any such statement on record.

15. In order to prove the above mentioned prosecution case as mentioned in the F.I.R., PW-1, Rajiv Shukla, who is brother of the deceased Rakesh Shukla has stated in examination-in-chief that on 26.1.1997, in the evening, he along with his servant Lallan had gone out to the market for making purchase of some items and when they reached near the shop of Naseem, from the side of market, his middle brother Rakesh Shukla was coming in his Jonga accompanied with his sons Chandan and Gudda and PW-1's son Vipul, Sri Kant Pandey and Ved Nayak, who all were returning from the house of elder sister of the deceased Rakesh Shukla, who was living in Sunrahi Gali. Rakesh Shukla had stopped the said vehicle at the door of Naseem seeing him (PW-1) and as soon as he proceeded towards Rakesh Shukla, right then, Ashok Singh Chandel, Naseem, Sahab Singh, Rukku (appellant), Jhandu, Shyam Singh and official gunner came out of the shop of Naseem, out of whom, Ashok Singh Chandel was having D.B.B.L. gun, others namely Sahab Singh with SBBL gun, Shyam Singh with SBBL gun, Rukku with DBBL gun, Jhandu with DBBL gun, Naseem with DBBL gun and official gunner with official fire arm weapon, with common object and started making fire upon Jonga, in which his brother Rakesh Bhaiya along with above persons was sitting and right then hearing the sound of fires, from the side of market Raghuvir with rifle, Bhan Singh with DBBL gun, Uttam Singh with DBBL gun, Pradeep Singh with SBBL gun and Dabbu Singh with DBBL gun came there and also started making fire upon the occupants of Jonga, by which the stampede ensued in the market, hence market was closed and these people fled towards market. In this firing, his brother Rakesh Shukla, Sri Kant Pandey, Ved Nayak, Chandan and Vipul @ Gudda received injuries. Soon at the place of occurrence, his brother Rajesh Kumar Shukla, Ravi Kant Pandey, Bhagwati Saran Nayak, Sri Prakash, Anil Dwivedi and many other persons of Mohalla reached there. Chandan and Vipul had received simple injuries, who were sent home and rest of the injured were being taken to hospital and hardly they could reach in front of house of Parma Pandit, right then, from the side of market, accused of the party of Ashok Singh Chandel, Manoj and Raghuvir came in a sumo jeep and another jeep. Ashok Singh Chandel exhorted his companions that today no one of this family should be left alive and all be killed, at this exhortation, Ashok Singh Chandel with DBBL gun, Raghuvir Singh with rife, Sahab Singh with rife, Shyam Singh with SBBL gun, Rukku with DBBL gun (present appellant), Pradeep Singh with SBBL gun, Naseem with DBBL gun, Jhandu with DBBL gun and Bhan Singh with DBBL gun, Dabbu Singh with DBBL gun, Uttam Singh with DBBL gun and gunner and two unknown persons got down from the vehicle and started making indiscriminate firing with a common intention to kill them all. In this firing, his brother Rajesh Bhaiya, (PW-1) himself, Ravi Kant Pandey and Hardayal Verma received injuries and right then Ashok Singh Chandel had snatched away licensed gun of his father from the hands of Rajesh Bhaiya and at that time Rajesh Bhaiya was alive. In order to save life of Rajesh Bhaiya, Rakesh Bhaiya, nephew Gudda @ Ambuz, Sri Kant Pandey, Ved Prakash, they were taken to hospital, where doctor declared them dead. Accused had fled after having made fire towards the market. He and other injured persons were examined in the District Hospitals. At the place of incident, there was light of street light and also of other houses, in the light of which accused were seen firing. The written report of this incident was got scribed in hospital by PW-1 from Sarswati Saran and whatever was dictated to him, the same was written and, thereafter, he put his signatures thereon. Further this witness has stated that original written report, which is present in file of the S.T. No. 145 of 2000, photocopy of the same after being compared with the said written report, was placed in this file, which is Ext. Ka-1. He also stated that among assailants there were two unknown persons also who were armed also with weapon. Ashok Singh Chandel used to be opposed the election of MLA, which used to contest by his brother Rakesh and Rajesh. In 1996, Ashok Singh Chandel had contested the election in which family member of PW-1 had opposed him and in the said election he had been badly defeated. Prior to this, in 1995, in Sumerpur, Shiv Narayan Mishra, President of Degree College, Hamirpur and Sanjay Shukla were assassinated by accused Shyam Singh and others, who was brother of Rakesh Shukla and Sri Kant Pandey. Ravi Kant Pandey, Advocate, had made pairvi in that case from the side of the deceased and Ashok Singh Chandel and Raghuvir Singh etc. had done pairvi from the side of accused because of which, these accused were harbouring enmity towards the informant and his family. He further stated that accused present in court namely, Rukku was driver of Ashok Singh Chandel, who used to accompany him, armed with weapon. This occurrence had taken place at about 7:30 pm on 26.1.1997. Before court, sealed envelope was open and from inside which, white Kurta-paijama, Katthai Sadri and under garment (chaddhi) were taken out, which was marked as material exts. 1 to 4 belonging to deceased Rajesh Shukla in original S.T. No. 145 of 2002. From the same bundle, white Kurta, Paijama, black Sadri, Katthai under garment, a bead of rudraksha and Baniyan were taken out, which were stated to be of deceased Rakesh Shukla, which was already marked as material Exts. 5 to 10 in connected S.T. and from the same bundle one green sweater, pant shirt, Baniyan, under Garment were taken out belonging to deceased Ambuz @ Gudda, which were marked as material Exts. 11 to 15 in the connected S.T.. From the same bundle one Jacket, one sweater, pant, under garment (chaddhi) and shirt were taken out belonging to Ved Nayak, which were marked as material Exts. 16 to 20 in the connected S.T.. From the same bundle, shirt, sweater, baniyan and under Garment (chaddhi) were taken out belonging to deceased Sri Kant which was marked as material Exts. 21 to 26 in the connected S.T.

16. In cross-examination, this witness has stated that at the time of incident, he was not at home, rather was going to market and had not reached there for making purchase, before it, on the way, hardly he could reach the gun shop of Naseem, this incident had happened. He reached hospital with the injured persons. He was not taken by anyone to the hospital because he had received simple injuries in the occurrence, as the accused had left him there taking him to be dead. He had seen accused Rukku even prior to the occurrence and also causing this occurrence. He made indiscriminate firing but could not tell as to how many fires were made by him, as he could not count. His treatment was done in District hospital- Hamirpur. He has further stated that prior to his statement in the present case, he has made statement in connected ST No. 145 of 2000, in which the judgment was delivered on 15.7.2002 and the accused had been acquitted, against which criminal appeal is pending before the High Court. In the said ST, his statement was taken in 132 pages, but he does not recollect about it as to on which date his statement has begun and on which date it was closed.

17. After having seen paper no. 14 Ka, he stated that the same is certified copy of the statement given by him in the said S.T. and further stated that it was wrong to say that he was not present at the place of incident and had not seen the occurrence and had specifically not seen the accused-appellant Rukku making fire and that the said accused was falsely implicated by him. The copy of the said statement made by him earlier (paper no. 14 Ka) has been marked as Ext. Kha-11.

18. From the above statement of PW-1, it is found proved that the present accused was involved along with other co-accused, who had faced trial in connected S.T. 145 of 2000, in giving effect to the present occurrence, as his name has been taken distinctly by this witness, who is himself an injured witness, who has clearly stated to have received injury at the time when this occurrence happened, when he was talking to his brother, who had come in jonga. His presence cannot be dis-believed and there is no cross-examination made separately in this case, of this witness, at length, to dislodge his presence at the scene of occurrence. It is a settled law that each case has to be judged on its merit on the basis of evidence, which is adduced therein and not on the basis of any connected case in which separate evidence was adduced and the same was adjudged on the basis of that evidence. It was bounden duty of the defence to extensively cross-examine this witness on the point of his presence at the scene of occurrence and his injuries also. Since no such cross-examination has made in the present case, hence we do not see any reason, why the testimony of this witness in examination-in-chief should be discarded.

19. PW-2, Ravi Kant Pandey, has stated in examination-in-chief that on 26.1.1997 at 7:30 pm, he was present at his house, where he heard sound of fire, hearing which, he came out of the house on the main road and saw that from the eastern side Rajesh Shukla, Bhagwati Saran Nayak, Anil and Prakash and many other persons of the Mohalla were coming running and were proceeding towards west, out of whom, he inquired from Rajesh Shukla as to why he was going in that direction, to which he responded that Rakesh Shukla had been fired at, therefore, he also accompanied them and reached the gun shop of Naseem and saw that Chandan and Vipul were being taken out in injured condition from Jonga by Rajiv Shukla and Lallan. Rajesh Shukla, thereafter, told Rajiv Shukla that Rakesh Shukla, Sri Kant Pandey, Gudda and Ved Nayak be taken to hospital. Rajesh Shukla had pushed Rakesh Shukla and Gudda on the seat on Jonga after reversing the same, diverted it towards the lane of Parma Pandit and as soon as the said Jonga turned towards the market, one Sumo vehicle and a jeep came from there, out of which, got down Ashok Singh Chandel, Sahab Singh, Rukku (present accused-appellant) Raghuvir Singh, Dabbu Singh, Jhandu Arakh, Man Singh, Pradeep Singh, Uttam Singh, Shyam Singh, Naseem and one gunner along with two other persons. Ashok Singh Chandel was having D.B.B.L., Raghuvir Singh a rifle, Rukku a D.B.B.L. gun, Jhandu Arakh a D.B.B.L. gun, Uttam Singh a D.B.B.L. gun, Man Singh a D.B.B.L. gun, Shyam Singh a S.B.B.L. gun, Naseem a D.B.B.L. gun and official gunner with sten gun and two other persons were also having guns and soon after getting down from the vehicle, Ashok Singh Chandel instigated all his companions that no person of the said family should left alive today and, thereafter, all these accused made indiscriminate firing upon the Jonga. Rajesh Shukla as soon as he got down from the Jonga with his rifle, he received bullets. PW-2 and Rajiv Shukla also received bullets and, thereafter, Ashok Singh Chandel came forward and snatched away rifle from the hands of Rajesh Shukla and thereafter all fled in their vehicle towards market. At that time, Rajesh was in critical condition. Thereafter, Rajesh Shukla told him that he should go home and that these injured would be taken by him to the hospital. Rajiv Shukla had told him to ensure that Chandan and Vipul, who were sent home in the injured condition, whether they had reached home safely or not. Rajiv Shukla himself went to hospital taking with him all the injured. Further this witness has stated that about one and half hour of the occurrence, with Chandan and Vipul, he reached hospital, where they were medically examined. He had seen this occurrence in the light of street light and the light emitting out of the houses. He knew the accused Rukku, who was involved in this occurrence.

20. In cross-examination, this witness has stated that on 21.3.2002, he has given statement in S.T. No. 145 of 2000, wherein he had stated that along with Ashok Singh Chandel, Sahab Singh, Jhandu Arakh, Raghuvir Singh, Dabbu Singh, Pradeep Singh, Uttam Singh, Man Singh, Shyam Singh, Naseem and two other persons. Rukku was also there. In the said statement he had stated that Rukku had the same weapon, which he has stated today in examination-in-chief and in the connected S.T. also. He has stated that this occurrence happened in the same manner as he has stated today in the present case in examination-in-chief. In the connected S.T. he was cross-examined at length. The cross-examination, which was made in connected S.T. from the defence side, was shown to him and was made available for him to read and he admitted that the said statement was given by him in court in the said S.T. and in paragraph no. 6 of the same, it was written that in this case his statement was recorded by I.O. once and the said statement was taken second day after the occurrence i.e. on 27.1.1997 and in paragraph 112 it was written that it was wrong to say that he was giving false statement. His earlier statement was exhibited as Ext. Kha-1 in the present case. He further stated that whatever statement was made in the connected S.T. in examination-in-chief, he is still firm about the same and that even today his statement would be the same and further stated that it was wrong to say that he again was making false statement today.

21. As in the case of PW-1, similarly the statement of PW-2 cannot be discarded because he has not been cross-examined at length so as to make us disbelieve his presence on the place of incident. This witness, according to his statement in examination-in-chief, had come from house after hearing sounds of fire and when he came on the main road and saw other persons of Mohalla namely, Rajesh Shukla, Bhagwati Saran Nayak and Anil & Prakash etc. running towards the place of occurrence, also accompanied them and saw the entire occurrence in which he found the present accused also making indiscriminate firing along with other co-accused named in the examination-in-chief, upon the deceased and injured persons. Therefore, his presence also stands proved at the place of incident, who has seen the occurrence because no such cross-examination has been made in the present case and the cross-examination made in connected S.T. at earlier point of time, would not give any benefit to the defence side, as defence ought to have cross-examined him at length in the present case.

22. PW-3 Dr. N.K. Gupta has stated as PW-3 in examination-in-chief that on 26.1.1997, he conducted medical examination at 8:30 pm of Rajiv Shukla, Hardayal Verma, Ravi Kant and Vipul and Chandan. He found following injuries upon the person of Rajiv Shukla.

(i) Multiple firearm wound in area of 16 x 8 cm. over posterior aspect of left knee and medial aspect of upper half leg, size 0.3 cm. x 0.3 cm. x unknown, margins are inverted.

(ii) Multiple firearm entry wound present over posterior aspect of left thigh lower half, size 0.3 cm. - 0.4 cm. x 0.3 cm. - 0.4 cm. in area of 10 cm. x 10 cm., margins are inverted.

(iii) Multiple firearm entry wounds present over posterior aspect of the right thigh. Size 0.3 - 0.4 cm. x 0.3 - 0.4 cm. x depth not probed, margins are inverted.

23. He has further stated that he had prepared medical examination report of this injured in his hand writing, which was kept in connected S.T. and was exhibited and a photo copy of the same after being compared with the original, is placed on record in the present case, which is Ext. Ka-2.. The injuries caused to Rajiv Shukla were possible to have been received on 26.1.1997 at 8:45 pm.

24. On the same day he medically examined Hardayal Verma and had found following injuries on his person:-

(i) Multiple firearm entry wounds present in an area of 46 cm. x 16 cm. on lower 2/3 thigh and upper 2/3 leg over anterior medial and lateral aspect, size 0.3 - 0.4 cm. x 0.3 - 0.4 cm. margins are inverted.

(ii) Firearm wound of entry present over medial aspect of thigh and junction of upper 1/3 and lower 2/3 right thigh, size is 0.3 - 0.4 cm. x 0.3 - 0.4 cm. x depth not probed. Margins were inverted.

(iii) Firearm entry wound present in area of 16 cm. x 9 cm. of front and lateral and medial aspect of upper part of right leg size is 0.3 - 0.4 cm. x 0.3 - 0.4 cm. depth not probed, margins inverted.

25. He prepared medical examination report of this injured in his hand writing, original of which is kept on file of connected S.T. and the photo copy of the same after being compared with it, is placed on record which is Ext. Ka-3 and he has further stated that these injuries were possible to have been caused by fire arm to this injured on 26.1.1997 at 7:30 pm.

26. On the same day at 10:00 pm, he inspected the injuries of Ravi Kant and had found following injuries on his person:-

(i)Firearm entry wound present over left, front of, leg 2.5 cm. below to tibial tuberosity left margins are inverted, not probed, size 0.5 cm. x 0.5 cm. x not known.

27. He further stated that he had prepared the injuries memo of this injured, original of which is placed on connected S.T. and a copy of he same after being compared with the original is placed on the present file which is Ext. Ka-4 and he has also stated that the said injury was possible to have been received to him by fire arm on 26.1.1997 at 7:30 pm.

28. The same day at 10:15 pm, he had medically examined Vipul and found following injuries on his person.

(i)Firearm entry wound 0.5 cm. x 0.3 cm., not probed, present over post aspect of right upper arm, 5 cm. above to lateral epicondite of humerus. Margins inverted.

29. The injury memo was prepared by him, the original of which was kept on the file of connected S.T. and photo copy of the same is placed in the file of the present case after being compared with the original which is Ext. Ka-5 and he has also stated that it was possible that the said injuries were caused to this witness on 26.1.1997.

30. On the same night at 10:30 pm, he medically examined injured Chandan and found following injuries.

(i)Firearm entry wounds present over right shoulder at posterior aspect, 5 cm. posterior x below to tip of shoulder, sizes 0.3 cm. x 0.3 cm. x depth not probed, margins are inverted.

(ii)Firearm entry wound (0.2 cm. x 0.2 cm. x not known) present over right upper arm at outer aspect, 9 cm. below to tip of right shoulder.

31. Both the injuries were fresh caused by fire arm and could have been received on 26.1.1997 at 7:30 pm. He had prepared his medical report in his hand writing, the original of which is placed on file of connected S.T. and photo copy of the same is being placed on the present file after being compared with the original, which is Ext. Ka-6.

32. On the same day, he had written a letter to the In-charge Kotwali, Hamirpur in respect of the five deceased and two plus one injured in his hand writing, the original of which is kept on connected S.T. file, photo copies of two letters after being compared with the original, are being placed in the present file, which are Ext. Ka-7 and 8 respectively.

33. In cross-examination, this witness has stated that his statement has been recorded in connected S.T. earlier and the copies of his statements in the said S.T in original are in front of him, photo copies of which are being filed by him today in court as Ext. Kha-2.

34. He further stated that he had proved Ext. Ka-13 to Ext. Ka-19 in connected S.T., photocopies of which after being compared, were being presented in the present case as Ext. Ka-2 to Ext. Ka 8. Further he has stated that in the connected S.T., he has made correct statements and he stands by it even today.

35. From the statement of this witness, it is apparent that he has proved the injuries to have been caused to the above injured namely, Rajiv Shukla, Hardayal Verma, Ravi Kant and Vipul and Chandan and has clearly proved that the said injuries were possible to have been received by fire arm on the date of occurrence i.e. on 26.1.1997 at about 7:30 pm, which is the time being alleged by the prosecution, when this occurrence took place.

36. Dr. S.R. Gupta has been examined as PW-4, who is radiologist has stated that on 26.1.1997 he had conducted X-ray of injured Rajiv Shukla and Hardayal Verma in District Hospital and on 28.1.1997 and had conducted X-ray of injured Ravi Kant, Vipul and Chandan.

37. Upon conducting X-ray of Rajiv Shukla, he found one small metallic substance of round shape on the left and right thigh and also in leg and left knee.

38. He conducted X-ray of Hardayal Verma of right thigh, left leg and right leg and in his x-ray a small road radio opaque shadow of metal was found. X-ray report of this injured was prepared on the order dated 29.5.2000 of Special Judge, Hamirpur in his hand writing.

39. X-ray of left leg of Ravi Kant son of Gaya Prasad, resident of Khodi was conducted by him and and a small radio paque metallic shadow was found.

40. He conducted X-ray of injured Vipul and plate radio opaque shadow of small metal piece was found.

41. He conducted X-ray report of injured Chandan of left shoulder and three radio opaque shadow were found.

42. Reports of all these injured namely Rajiv Shukla, Hardayal Verma, Ravi Kant and Vipul and Chandan as well as X-ray plates were prepared at the instruction of court. However, the original X-ray reports of Rajiv Shukla, Hardayal Verma, Ravi Kant and Vipul and Chandan are annexed in the connected file of S.T. No. 145 of 2000 and photocopies of the same after being compared with them, were being placed in the present file which are Ext. Ka-9, Ka-10, Ka-11, Ka-12 and Ka-13 respectively.

43. In cross-examination this witness has stated that he was examined earlier in the connected S.T. as PW-7 and in the said file he has given the same statement which he has given today, in the present case and he is still firm of his said statement, copy of which is being filed today, which is Ext. Kha-13.

44. From the above statement of this witness it is apparent that he had conducted X-ray of Rajiv Shukla, Hardayal Verma, Ravi Kant and Vipul and Chandan and had found the radio opaque shadow which appeared to be of fire arm and no cross-examination at length has been made independently in this case to dislodge the truthfulness of statement given in examination-in-chief.

45. The defence side has totally tried to rely upon cross-examination made of this witness in connected S.T. earlier which is improper and illegal as the said statement was given during the earlier trial, it cannot be read in the present case. Therefore, we find that this witness has absolutely proved the above injured persons to have sustained said injuries.

56. Dr. P.N. Parya, has been examined as PW-5 who has stated in examination-in-chief that on 27.1.1997, at 10:00 am, he conducted post mortem of the deceased Rakesh Shukla, S/o Bhishma Prasad Shukla, Rajesh Shukla S/o Sri Bhishma Prasad Shukla and Sri Kant Pandey S/o Gaya Prasad.

47. He conducted post-mortem report of Rakesh Shukla S/o Bhishma Prasad Shukla at 10:00 pm and had found following injuries on his person:-

(i) Fire-arm wound of entry over left supraclavicular fossa placed 6 cm. above and lateral to left sternoclavicular joint in the area of 3 cm. X ½ cm. X depth penetrating to neck, direction inward, outward towards the right supraclavicular fossa, margins of wound is inverted. No blackening and tattooing is present.

(ii) Fire arm wound of exit over the right neck and right supraclavicular fossa in the area of 15 cm.x 8 cm.x muscle deep extending from lower margin of angle mandible to tip of right shoulder, margins are everted. Exit is related to injury no.1.

(iii) Fire arm wound of entry of size 2 cm. X 1 cm. X penetrating to the left arm placed over the medial aspect of left arm and situated 5 cm. below to the tip of left shoulder. Margins are inverted. Wound are directed inward and outward. No tattooing and blackening is present.

(iv) Fire arm wound of exit over the lateral aspect of left arm in the area of 9 cm. X 4 cm. X muscle deep placed 10 cm. below to top of left shoulder, margins are everted. This exit is related to injury no.3.

(v) Fire arm wound of entry of size 1.5 cm. x 1 cm. x penetrating to right elbow over the anterior aspect of right elbow joint, margins are inverted, no tattooing and blackening is seen, direction of wound is inward and posterior and outward.

(vi) Fire arm wound of exit of size 8 cm. x 4 cm. over the posterior aspect of right lower arm placed 3 cm. above to the olecranon process of right elbow, margins are everted.

(vii) Multiple fire arm wound of entry of size about .5 cm. x .5 cm x skin deep over the fore-head, nose, left-eye orbit and left side of cheek in the area of 20.2 cm. x 11 cm x nasal bone is fractured.

(viii) Multiple fire arm wound of entry placed in the area of 11 cm. x 6 cm. over the anterior aspect of left shoulder and upper left chest, size of wounds are about .5 cm. x .5 cm. x skin deep.

(ix) Fire arm wound of entry of size 1 cm x .5 cm x muscle deep over the proximal phalynx of right ring finger at the lateral aspect.

(x) Multiple fire arm wound of entry over the right lower back and right hip in the area of 21.0 cm x 9.0 cm., size of wounds are about .5 cm x .5 cm. x skin to muscle deep. No tattooing and blackening is seen.

(xi) Fire arm wound of entry four in number of size .5 cm. x .5 cm. x skin deep over the lateral aspect of right thigh placed in the area of 5 cm. x 2 cm, no tattooing and blackening is seen.

48. Cause of death was found to be shock and hemorrhage as a result of ante-mortem injuries and has opined that these injuries might have been received by him within 12-18 hours of conducting the post-mortem, original of which is placed in the file of connected S.T. and photocopy of the same is being placed in the present file after being compared with the original which is Ext. Ka-14.

49. On the same day at 11:30 pm, he conducted post-mortem of Rajesh Shukla S/o Sri Bhishma Prasad Shukla and found following injuries on his person:-

(i) Fire arm wound of entry over the left side of chest in third inter-coastal space in the area of .5 cm. x .5 cm x chest cavity deep placed 8 cm. medial and upward to left nipple direction of wound is inward and posteriorly. Margin inverted. No tattooing is seen.

(ii) Fire arm wound of entry of size .5 cm x .5 cm. x muscle deep over the      anterior aspect of left shoulder placed 7 cm. below to top of left shoulder; margin inverted. No tattooing is seen. 
 
(iii) Multiple fire arm wound of entry over the posterior aspect of right hip, right thigh and right upper 2/3 of leg in the area of 65 cm. x 12 cm. Size of wound is .5 cm. x .5 cm. x skin to muscle deep. No tattooing and blackening is seen. 
 
 (iv) Fire arm wound of entry two in number over the anterior aspect of the left knee joint in the area of 5 cm. x 5 cm. x skin deep. No tattooing is seen. 
 
(v) Multiple fire arm wound of entry of size .5 cm. x .5 cm. x skin to muscle deep in the area of 10 cm. x 3 cm. over the left umbilical and left hypo-drondrian region.
 
(vi) Abrasion of size 1 cm. x 1 cm. over the left parietal region of skull placed 5 cm. above to left eye-brow. 
 
(vii) Contusion of size 13 cm. x 11 cm. over the right umbilical right iliac fossa of abdomen. 
 
50.	Original post mortem report is placed in the file of connected S.T. and photo copy of the same is placed in the present file after being compared with the original which is Ext. Ka-15.
 
51.	On the same day, at 12:30 pm, he had conducted the post mortem of Sri Kant Pandey S/o Gaya Prasad and found following injuries on his person:-
 
(i) Fire arm wound of entry over the right side of face placed 2.5 cm. lateral to right ala of nose in the area of 2 cm. x 2 cm. x brain deep direction  of wound is inward, posterior and outward towards the nape of  neck. Margin of wound is inverted. No tattooing and blackening is seen. 
 
(ii) Fire arm wound of exit over the nape of neck and right occipital region of   skull in the area of 8 cm. x 4 cm., brain matter is coming out though the wound. Margin of wound is everted.
 
52. 	The original post-mortem report is placed in the connected S.T. and photo copy of the same is placed in the present file after being compared with the original, which is Ext. Ka-16.
 
53. 	In cross-examination, this witness has stated that in connected S.T. his statement was recorded in respect of the post-mortem of the dead bodies, the said statement was also read out to him and the same replies would stand today also, certified copy of his earlier statement is Ext. Kha-4 and he denied that he did not make post mortem of the deceased in accordance with law.
 
54. 	Statement of this witness proves that he had found above mentioned injuries on the persons of three deceased named above i.e. Rakesh Shukla, Rajesh Shukla and Sri Kant Pandey and no in depth cross-examination has been made so as to elicit any such doubt on the basis of cross-examination to make his testimony dis-believable.
 
55.	We are of the opinion that no benefit can be given to the accused side only on the ground of filing certified copy of earlier statement made by this witness in connected S.T. because we already have mentioned that it is a settled law that the evidence recorded in earlier S.T. would not be readable in the present S.T.
 
56.	Dr. R.S. Gupta (PW-6) has stated in examination-in-chief that on 27.1.1997, he conducted post-mortem of the deceased Ambuz @ Gudda S/o Rakesh and Ved Prakash. 
 
57.	He had conducted post-mortem of the deceased Ambuz @ Gudda and had found following ante mortem injuries on his person:-
 
(i) Firearm wound in area of 19 cm x 8 cm. on the left side and the right side of skull extending  from eyebrow to occipital region. All the bones of the skull crushed, brain matter comes out.
 

 
(ii) Firearm wound of entry 1.5 cm. x 1.5 cm. x cavity deep, on the right side of the chest 8 cm. below and medial to right nipple. No blackening and tattooing. Margins were inverted.
 

 
(iii) Firearm wound of entry 1 cm. x 1 cm. x cavity deep on the midline 6 cm. below supra sternal notch.
 

 
(iv) Firearm wound of entry on the left side of Epigastrium, 0.5 cms x 0.5 x  skin deep.
 

 
                   (v)Abraded contusion 3 cm. x 2 cm. on the front of right knee.
 
58. 	Cause of death has been found to be shock and haemorrhage as well as of ante-mortem injuries and during post-mortem the bullets were found, out of which one was found in chest cavity and other in abdominal cavity and he prepared the post-mortem report in his hand writing, original of which was placed in the file of connected S.T. and the photo copy of the same is placed in the present file after comparing it with the original, which is Ext. Ka-17.
 
59. 	On the same day, he conducted post-mortem of the deceased Ved Prakash and found following ante-mortem injuries on his person:-
 
(i) firearm wound of entry 2.5 cm. x 2 cm. x penetrating to cheek bones, direction of wound - upwards and outward. Margins were inverted. No blackening and tattooing, on the left mandibular.
 

 
(ii )Firearm wound of exit 10 cm. x 8 cm. on the left side of face, 2 cm. away from the outer angle of left eye, maxillae and mandible bone fractured. Loss of tissue, margin everted.
 

 
(iii) Abraded contusion 4 cm. x 2 cm. on the right side of neck, 8 cm. below ear lobule. maxillae and mandible left side fractured.
 

 
60. 	The cause of death was found shock and hemorrhage and has prepared post-mortem report in his hand writing, original of which was kept in file of connected S.T. and photo copy of the same is placed in the present file after comparing it with the original, which is Ext. Ka-18.
 
61.	In cross-examination, this witness has stated that earlier his statement was recorded in connected S.T. and he stands by the same statement even today and certified copy of his earlier statement is placed on record as Ext. 5 in this S.T. 
 

 
62.	From the statement of this witness, it is clearly established that the above two deceased Ambuz @ Gudda and Ved Prakash have died by fire arm injuries on 26.1.1997 at about 7:30 pm. Nothing has been asked in cross-examination, therefore, statement made by this witness in the examination-in-chief is absolutely un-impeached and is therefore taken to be correct.
 

63. Saraswati Sharan, P.W.7 has stated in examination-in-chief that the occurrence took place on 26.01.1997 when he was at bus-stand, Hamirpur. He had come from Sumerpur at about 8:30 p.m.. After hearing about the occurrence, he straight away went to the Sadar Hospital, Hamirpur where he found Rajiv Shukla on bed of the hospital who asked him to write down a written report in respect of occurrence; whatever he had stated was written by him and after the same was read out to him, he put his signature thereon, the original of which is available in the file of connected S.T. no. 145 of 2001 and photo-copy of the same after being compared with the original is placed on record in the present file which is Exhibit Ka-1.

64. This witness in cross-examination has stated that in connected S.T., his statement was recorded as P.W.3, certified copy of which is Exhibit Kha-6. Whatever was stated by him in the earlier S.T., he stands by his statement.

65. Since nothing has been cross-examined in respect of merits of the F.I.R., we find that this witness has proved the written report which is Exhibit Ka-1.

66. P.W.8, S.I. Malkhan Singh has stated in examination-in-chief that on 30.1.1997, he was posted as Head Moharrir in the Civil Lines, Hamirpur and at that date, the technical inspection of vehicle no. UMF 5394 was done by him. The condition of engine and chasis was alright; condition of body of the vehicle was also alright except one hole which was found in its body on the left side; steering was also found in proper condition; condition of break was also proper; condition of transmission was also absolutely perfect; nothing abnormal was found; it has been mentioned by him that front-screen was having hole on the right side; on the right side of window as well as on the right side of driver seat on the back, there were holes; on the left side on the body of the vehicle above the rear wheel and on window on both the sides, screens were having holes; mirror of driver was broken. Because of key not being available, the engine could not be started and checked. The oil tank could also not be checked because of the same reason. The technical inspection report which was prepared, is available on the file of the connected S.T. in front of him and certified copy of the same has been filed in the present case after comparing the same with the original which is Exhibit Ka-18.

67. In cross-examination this witness has stated that he was examined in connected S.T. as P.W.4 on 12.04.2002 and whatever was stated by him, he stands by his earlier statements. He could not start the engine and check it because of lack of ignition key. The earlier statement made by him is Exhibit Kha-1 which is taken on record in the present case.

68. From the statement of this witness, it is apparent that though overall running condition of the vehicle above was good but according to the prosecution, indiscriminate fire was made from the side of accused but if the holes were found on the chasis of the said vehicle as has been stated above and also in the window-screen, therefore it cannot be ruled out that the said vehicle was actually fired upon from the side of the accused.

69. P.W.9, Constable Mahesh Singh in cross-examination has stated that on the basis of written report, he had prepared chick of this case; text 'tatha mere pair me goliyan lagi' was omitted by mistake from being mentioned in chik report. In the chik report in place of 'tatha' & 'pair aur' has been written which is inadvertent mistake. He has further stated that in connected S.T. whatever replies were given by him, he stands by those replies and the earlier statement which is Exhibit Kha-1 is taken on record in the present case.

70. This witness has proved the chik F.I.R. as well as G.D. and in cross-examination, he has clearly stated that some mistakes were left which was due to inadvertence which was not found to be very material by us. The statement that copy of his statement given in earlier S.T. is taken on record as Exhibit Kha-7 is of no consequence because it is well established position of law that the present S.T. would be decided on the basis of statement of witnesses which have been presented from the side of prosecution to prove this case; whatever cross-examination is made from the side of defence in respect of the statement made in the examination-in-chief to elicit truthfulness of the statement would be only material and not what was stated by him earlier in connected S.T. We find on the basis of statement of this witness that he has proved the G.D. as well as chik F.I.R.

71. P.W. 10 S.I. Sri K.D. Pal has stated in cross-examination that no proceedings under Section 82 and 83 Cr.P.C. have been conducted in his knowledge nor does he have the file related to that proceedings in front of him today. He also does not know whether co-accused Ashok Singh Chandel had got his arrest stayed from the High Court nor does he have any knowledge that at the time of proceedings being drawn under Section 299 Cr.P.C. against accused, Ashok Chandel, he had already been granted bail, nor does he know that before completion of said proceedings under Section 299 Cr.P.C., the bail had been granted to present accused appellant, Rukku. Further he has stated that earlier his statement was recorded in connected S.T. and the copy of his statement recorded therein, is present before him today, certified copy of which is Exhibit Kha-9 which is placed on record in the present case and that whatever statements were made by him earlier in the said S.T., he stands by those statement even now and denied that the false proceedings were conducted against the accused.

72. From the statement of this witness, it is apparent that he was partly assigned the investigation of this case and has stated to have moved the application before the trial court for proceeding against the present accused as well as the co-accused, Ashok Singh Chandel for recording the statement of witness under Section 299 Cr.P.C.

73. P.W.11, Chandan Shukla S/o Rakesh Kumar Shukla R/o Rameri Hamirpur in examination-in-chief has stated that he knows accused appellant, Rukku who is present in court, who is resident of Khalepura, Hamirpur. On the date of this occurrence, with him there were Ashok Singh Chandel, Sahab Singh, Jhandu, Bhan Singh, Raghuvir Singh, Dabbu Singh, Pradeep Singh, Uttam Singh, Naseem and Shyam Singh Gunner. The deceased Rajesh was his tau, deceased Rakesh was his father, deceased, Gudda was his younger brother, Sri Kant @ Rajan was his uncle and deceased, Ved was his brother. Injured, Rajiv Shukla was his uncle, injured, Vipul is his cousin, injured Ravi Kant is known to him. Further he stated that about 11 years ago i.e. on 26.01.1997, he along with his father, Rakesh Kumar, Gudda, Vipul, uncle Rajan and Ved Bhaiya had gone to Sunhari Gali in Hamirpur where his bua used to live and from there, they were returning and when they reached near gun-shop of Naseem, at about 7:30 p.m., his uncle, Rajiv and his servant, Lallan met him in front of the shop of Naseem on the road. His father stopped the vehicle on the road. His uncle Rajiv and servant Lallan came near his father, right then, from Chabutra, Naseem, Ashok Chandel by D.B.B.L. gun, Sahab Singh by rifle, Shyam Singh by S.B.B.L. gun, Jhandu by D.B.B.L. gun, Naseem by D.B.B.L. gun, Rukku (present appellant) by D.B.B.L. gun, official gunner by his official weapon, in prosecution of their common object made fire with an intention to kill and right then, from the side of market, Raghuvir Singh armed with rifle Pradeep Singh armed with S.B.B.L. gun, Dabbu Singh with D.B.B.L. gun, Man Singh with D.B.B.L. gun, Uttam Singh with D.B.B.L. gun, also came there and started making fires upon P.W.11 and all his companions who were sitting in vehicle along with his father i.e. Gudda, Vipul, Rajan and Ved got injured due to firing in which his father, Gudda, Rajan and Ved fell down inside the vehicle, thereafter, all these accused fled towards the market; blood was oozing out from the hands of Ashok Chandel, Sahab Singh and Naseem. He had seen the occurrence in the light of bulbs on the street and also in the light which was emitting out from the shops and houses. Due to this occurrence, stampede followed in the market and the market was closed; at that very moment from mohalla, his tau, Rajesh Kumar, grand-father, Bheeshma Prasad Shukla armed with rifle, uncle Puttan, Anil Kumar, Bhagwati Sharan, Sri Prakash and some other persons also came there and Puttan also called Ravi Kant. After this occurrence, his uncle, Rajiv had taken him and Vipul out of the vehicle and sent them home. His injuries were examined in the government hospital in the same night. He was also x-rayed and the pallets which were found embedded in his body got exited after formation of abscess. Further he has stated that the jonga vehicle in which he along with above-mentioned persons were sitting its registration number is U.M.F. 5394. His uncle Rajiv Shukla had not received any injuries in front of his eyes; his statement was recorded by I.O.

74. In cross-examination this witness has stated that his statement was recorded by I.O. three to four days after the incident. He does not recollect whether his statement was recorded in some small diary nor does he know whether the same was a loose-paper. At the time when I.O. recorded his statement, prior to that, he used to live in his house only.

75. Further this witness has stated that after the occurrence, he remained in Hamirpur till the time of recording of his statement. Initially his statement was recorded by I.O. and thereafter by C.B.C.I.D. which was recorded after one and half year.

76. In para 9 of the statement of this witness, some criminal history was tried to be traced from the side of defence by suggesting number of criminal cases decided against complainant side, knowledge of which has been denied by this witness.

77. He has further stated that he has seen Shubhash market and also the place where the gun-shop of Naseem was located. The said road on which it is located goes east-west and to the east of it, lies Ramedi. He also has seen the house of Parma Pandit, by the side of whose house, there goes one lane north-south, which is about 25-30 paces away from the shop of Naseem and the same would be around 6-7 feet in width. To the west of this lane is the house of Parma Pandit. Road which goes from Ramedi to Shubhash market is about 12-15 feet wide. Shubhash market as well as shop of Naseem is located in densely populated area but jonga jeep type of vehicle could pass through that passage. There is 'chabutra' on the shop of Naseem which is about 3-4 feet wide and 10-12 feet in length and the length of the shop would be around 10-12 feet. In the shop, guns are kept, the number of which would be around 100/ 200/ 500 but he cannot tell exact number.

78. He has further stated that on the date of incident, he had gone to the place where his bua resides. In Mutth Manzhoopur, all the people who were sitting in the vehicle also went there who belonged to his family except two persons who were his friends. They had gone to give invitation to his bua and after having taken meals had departed from her house for home. About half an hour would have taken in reaching the place of incident from the house of Bua. Distance of his house from the house of his bua would be 2-3 kms. and at the house of bua, he had stayed for about 10-15 minutes.

79. He has further stated that he had told I.O. that on the date of incident, his uncle Rajiv had sent him and Vipul home after being taken out from the vehicle but if the same is not found written, he cannot tell its reason. He along with Vipul were sent home about 8-10 minutes after the occurrence. One Ajay Saxena of his mohalla had taken him home. He along with Ravi Kant (uncle) had gone to hospital. His house would be about 800-850 paces away from the place of incident. For some distance, they had gone on foot with Ajay, thereafter, rikshaw was engaged. The incident was reported at his house even before his reaching home but who had given information, he does not know. His tau, Rajesh Shukla had reached at the place of incident soon after getting the information.

80. After the occurrence, he reached home immediately, thereafter he was not taken to hospital rather he continued to stay at home. His medical examination was conducted 40-45 minutes after reaching the hospital. His uncle Rajiv Shukla would not meet him at the time of his medical examination nor there was any family members present there. Till the time he stayed in hospital, no one from his family was found there. He had reached home about 1.45 hours prior to reaching hospital and in the meantime no one had come from the place of incident except uncle, Puttan. On the said date, he did not meet Rajiv Shukla. From the place of incident, in reaching home, he would have taken 15-20 minutes. He would have taken hardly 10 minutes in reaching the hospital from home. He had sustained only one injury on his shoulder and also on 'pakhaura'. He denied that he did not receive any injury in the occurrence. At the time of occurrence, he was 11 years old and knew about gun and rifles although he did not know about 315 bore/12 bore and 9mm.

81. When he met Rajiv and Lallan, he could not talk with them. After seeing Lallan and Rajiv, his father had stopped the vehicle. Prior to that he (P.W.11) could not see the accused rather when firing started, he could see the accused. Within few seconds of starting of firing, he saw the accused. At that time, all the accused were at chabutra. He did not state before the I.O. that they were returning home by the passage where Lallan (servant) and Rajiv Kumar met them in-front of the gun-shop of Naseem and vehicle was stopped by his father and they started talking to each other. Out of it, only this had not been stated that they started talking. He had told the I.O. as to when firing started. If the same is not recorded by I.O., he could not tell its reason. By the side of driver, Vipul was sitting in the vehicle, thereafter Gudda, thereafter he himself and his father was driving the same. When he saw the accused for the first time, they would have been 17-20 paces away from the house of Parma Pandit. The jonga was towards east of house of Parma Pandit. Soon after starting of firing, Raghuvir etc. also came from behind and also started making fire. When Ashok and others have started firing soon thereafter Raghuvir and others reached. He had seen them standing upon Jonga and was taking round turn to see as to which accused was having which weapon. Those who had come from behind had come with Raghuvir Singh but he does not recollect whether he received gun shot wound after or prior to his turning around nor does he recollect as to whether he received injury after Raghuvir etc. had come. Further he has stated that the accused who were on the chabutra, they were making fires after changing their places. He could not notice as to how many fires were made because of being in fear although all were making equal firing which would have continued for about two to three minutes and it was indiscriminate firing made from the side of chabutra as well as from the side where Raghuvir was there.

82. He has further stated that it was middle of the road. Two unknown persons were also standing at the time of occurrence near his vehicle but were not making fires nor had he seen any weapons on their hands. The I.O. has written in his statement that some other persons were also making fires along with accused, on them with an intention to kill, if I.O. has written that in his statement then he could not tell its reason how it was recorded. He has stated to I.O. that the accused whose name he has taken, he had recognized them in the light of electricity but if the same is not written by I.O., he cannot tell its reason. He had also stated to I.O. that he had recognized the accused in the light which was emitting out of the shops and houses and if the same is not written, he could not tell it reason. I.O. had not asked him whether his Tau, Rajesh had come taking along rifle of Bhishma Prasad Shukla. From the hands of Naseem, Ashok and Sahab Singh, blood was oozing out but not from their entire body. He had seen the blood dripping but about this, I.O. had not inquired from him although he did not say about it to C.B.C.I.D. He denied the suggestion that he had not seen the occurrence and was not present at the place of incident at the time of occurrence.

83. This witness was an 11 year old child at the time of incident who was travelling in Jonga in which his father along with other family members and two friends were travelling which when he reached near the place of incident (near the shop of Naseem, first incident), he has stated to have seen the accused including the present appellant having fired upon Jonga in which all the occupants of the Jonga had received injuries and, thereafter, he was taken out of Jonga by his uncle, Rajiv along with Vipul who was also injured and they were sent home with the help of one Ajay Saxena resident of same mohalla and subsequently he was taken along with Vipul by his uncle Ravi Kant for being medically examined. His testimony is found to be credible and his presence cannot be ruled out rather is found proved because of his being an injured witness who has sustained fire arm injury on his shoulder. Although, there are some exaggeration found, made by him (P.W.11) in his statement when he stated that he saw the accused after standing on Jonga as to what weapons they were wielding in their hands which appears to be such a statement which cannot be believed but the entire testimony cannot be thrown out only on the ground of such exaggeration which appears to have been made in over-enthusiasm, therefore, his testimony is found to be believable only to the extent that the present accused along with other co-accused had formed an unlawful assembly with common object of eliminating his father and other family members who were travelling in Jonga and in prosecution of that intention, all of them had fired upon him.

84. P.W.12, Lalman Verma who is I.O. of this case has stated in cross-examination that on 27.01.1997, four accused who were arrested along with fard recovery were brought at the P.S. where their statements were recorded and they were lodged in police lock-up and case was registered. The injured accused in this occurrence i.e. Sahab Singh and Naseem were given mazroobi chitthi for their treatment in Government Hospital, Hamirpur. On 28.01.1997, search was made for absconding accused; against accused, Ashok Singh Chandel, Raghuvir Singh, Dabbu @ Asutosh, Pradeep, Rukku, Jhandu, Arakh and Uttam Singh, a report was submitted in court for initiating proceedings under Sections 82 and 83 Cr.P.C. On the said date, an information was received from an informer that the looted rifle could be available in the house of Ashok Singh Chandel in Hamirpur, believing which he reached along with force Viveknagar and no public witness could be persuaded to be a witness. Raid was made in the house of Ashok Singh Chandel whose servant Gauri Shankar started fleeing seeing the police who was caught and personally searched, from the pocket of his trouser, one country made pistol of 12 bore was recovered and two live cartridges of 12 bore were also recovered from the pocket of his kurta. For keeping these weapons, he did not have licence, hence, was arrested at 13:30 hours. When he was interrogated about looted rifle from him, he gave information and house of accused, Ashok Singh Chandel was searched., thereafter, a double barrel gun was recovered from the house of Ashok Singh Chandel. From beneath the bed, a D.B.B.L. gun of 12 bore no. being 4351 B/2 was recovered regarding which, Gauri Shankar could not reveal anything. From the pocket of Gauri Shankar, an amount of Rs. 29,200/- was also recovered. The Fard recovery of this weapon was made and their D.B.B.L. gun was sealed on the spot.

85. Further he stated that on 28.01.1997, he received information from informer that the looted rifle could be recovered from Anand Purwar who lives in Kasba, Hamirpur believing which raid was made at his house and one D.B.B.L. gun of 12 bore, four live cartridges, one mouser and eight cartridges were recovered; regarding mouser, Anand Purwar revealed that the said rifle was a licensed weapon and regarding 12 bore D.B.B.L. and four cartridges, he revealed that the same belonged to Shiv Baran Singh of Allahapur, P.S. Gajner, District Kanpur. Believing that both these weapons might have used in committing murder in this case, they were separately sealed and were taken in possession. Their fard was prepared and copy of the same was given to Anand Purwar and against him, a case was lodged at P.S.

86. On 29.01.1997, he recorded statement of witnesses of inquest i.e. Ajay Kumar Awasthi, Raj Kumar Dwivedi which were copied in case diary and also copied the inquest report of the deceased, Rajesh Kumar, deceased, Sri Kant Pandey, deceased, Gudda @ Ambuj and deceased, Ved Prakash.

87. He further has stated that on 30.01.1997, he collected blood stained and ordinary soil and prepared its fard and its witnesses' i.e. Shubhash Chandra Dwivedi and Kailash Narayan, statements were recorded. The statements of witnesses of recovery of Manarth Card, live cartridges and Jonga i.e. Shubhash Chandra, Kailash Narayan Mishra were recorded. On the same day, he recorded statement of eye-witness of the occurrence i.e. Bhagwati Sharan Nayak and also of injured witnesses Chandan and Vipul and obtained orders from court regarding attachment of property of accused, Ashok Singh Chandel and others and made its entry in the G.D. He executed attachment warrant against accused, Ashok Singh Chandel, Raghuvir Singh, Dabbu @ Asutosh Singh, Pradeep Singh, Rukku, Jhandu, Uttam Singh. He has further stated that on 31.01.1997, he deposited the papers related to attachment of accused, Jhandu at P.S. Sumerpur and on the same date, the medical report of injured, Rajiv Shukla, Hardayal, Ravi Kant, Vipul and Chandan were entered in C.D. and also entered the technical inspection report of Jonga and recorded statement of Anil Kumar. Further he has stated that on 1.02.1997, he went to the house of accused, Ashok Singh Chandel with S.H.O. along with force at his second house in mohalla Kidwai Nagar whereon, he could not found and even on the same day, he was also searched at his village, Terajor, Bilhaur but he could not be found there too and thereafter on the same day when he returned Hamirpur, he got information from informer that near city forest, the accused of this case i.e. Raghuvir Singh, Asutosh, Uttam Singh and Pradeep Singh were about to come in vehicle, therefore, he reached there with force on 1.02.1997 and after halting the vehicle at 19:50 p.m., all the accused were arrested. Accused Raghuvir and Asutosh disclosed that their weapons were deposited in Sengar Gun House situated in Katghar, Kasba in district Moradabad and the accused were lodged at P.S.

88. He has further stated that on 6.02.1997, he recorded statement of witnesses of inquest i.e. Dinesh Tripathi, Rajendra Kumar, Shiv Kumar Pandey. On 11.02.1997, S.I. O.P. Bharti had arrested the named accused, Jhandu near Kutchecha trisection at about 15:35 hours and his statement was recorded in C.D. on 14.02.1997, and S.I. Ram Surat Mishra was sent to Moradabad for recovering the licensed weapon of accused, Raghuvir and Asutosh in Sengar Gun house, Katghar, Moradabad. On 15.02.1997, he entered the medical report of accused, Sahab Singh and Naseem and criminal history of accused Ashok Singh Chandel, Shyam Singh, Sahab Singh, Jhandu, Arakh, Rukku, Raghuvir Singh, Dabbu Singh, Bhan Singh, Pradeep Singh on the same date, the statement of accused Raghuvir Singh and Dabbu Singh were recorded in jail after seeking permission of Court in respect of weapons. On the same date, he also recorded statement of Nilu, Kallu, Anil Kumar and Dharma Kumar in C.D. and on 16.02.1997, he recorded statement of witness, Hardayal. He has further stated that on 18.02.1997, he recorded in C.D. about the x-ray report and x-ray plates of Rajiv Shukla, Ravi Kant, Vipul and Chandan and also recorded statement of Dr. P.N. Parya. On the same date, he took statement of accused Bhan Singh inside jail in respect of his gun and also received x-ray report and x-ray plates of accused, Sahab Singh and Naseem from jail with permission from court and made its entry in C.D.

89. He has further stated that on 19.02.1997, he made search for gun on accused, Bhan Singh and made search of his gun in Sumerpur and also made search of accused, Rukku and Ashok Singh Chandel. On 20.02.1991, he directed S.I. Ram Surat Mishra in respect of finding out about the weapons of accused, Raghuvir Singh, Dabbu by sending him to Katghar, Moradabad. He has further stated that on 21.02.1997, he took statement of witness, Sri Prakash and H.C., Ram Babu and on the same date, an application was moved in court regarding providing weapons of accused, Raghuvir, Asutosh and Bhan Snigh and made its entry in C.D.

90. He has further stated that on 22.02.1997 after having collected entire evidence and finding sufficient evidence, filed charge-sheet against accused, Raghuvir Singh, Dabbu Singh, Pradeep Singh, Shyam Singh, Sahab Singh, Jhandu, Uttam Singh, Bhan Singh and Naseem which were sent to court and charge-sheet was sent against Ashok Singh Chandel and Rukku in abscondance. He has further stated that the original charge-sheet was submitted in connected S.T. by him, certified copy is which is filed in the present case after being compared with the original which was Exhibit Ka-56. He has further stated that the blood stained clothes, blood stained soil, ordinary soil, blood stained foot-rest collected from Jonga, empty cartridge, broken pieces of glasses, rifle of Ashok Singh Chandel and other recovered weapons were sent to the F.S.L. for being tested relating to all the five deceased persons. He has further stated that the containers of plain soil, blood stained soil, the piece of foot-rest, 12 empty cartridges which are in front of him were marked as material Exhibit Nos. 64 to 80 in the connected S.T. Further he has stated that his statement was recorded in connected S.T. in which he had taken name of present accused, Rukku. In the said S.T., he had stated about the involvement of the accused in the same manner in which he has stated in the present case. Whatever statement was recorded in the said case was the same which he has stated in the present case except that there is difference in Exhibits and their numbers. He was cross-examined in that case by the defence side and whatever replies were given when cross-examined, he stands by those replies even today. Certified copy of his statements given in earlier S.T. is being filed which is Exhibit Kha-10. He has recorded the statement of Chandan Shukla on 30.01.1997 who had told him in his statement that after the occurrence, his uncle, Rajiv had sent him and Vipul after taking them out from vehicle. This witness had not stated to him that the official gunner was present at the scene of occurrence and his official weapon was taken. This witness had not stated to him that when they were returning from passage, on way, servant, Lallan and Rajiv Kumar met him in front of the gun shop of Naseem where his father stopped the vehicle and started talking. Witness Chandan had stated to him that with accused, there were some other persons also making fire upon him and his companions with an intention to kill. This witness has also stated to him that he had recognized the murderers very well in the light of the electricity but had not stated that he had recognized them in the light which was emitting out from the shops and houses. This witness has not stated to him that his tau, Rajesh had come taking with him the rifle of Bhishma Prasad Shukla. He has further stated that he had not taken in possession the clothes of Chandan and Vipul. He also stated that he does not have knowledge that in S.T. No. 145 of 2000, accused have been acquitted but its appeal is pending. He has stated it to be wrong that he has made false investigation.

91. From the statement of this witness it is apparent that he has proved the charge-sheet against the present accused which had to be submitted by him against present accused appellant abscondance along with other accused. He has proved all the challani documents including the inquest report and other documents pertaining to sending bodies for the post-mortem and after having found the sufficient evidence, he had filed the charge-sheet. Whatever cross-examination has been made from the side of defence does not throw out the evidence which has been given by him in examination-in-chief and the same is found to be credible. In cross-examination, though, the statement made by him in earlier connected S.T. has also been filed but that is of no consequence as the same was made by him while the said trial was being conducted, the statement recorded in that trial cannot be held admissible in the present case as per law.

92. S.I. Munna Lal Mishra has stated as PW 13 in examination in chief that while he was posted as Head Moharrir at Kotwali Hamirpur on 27.1.2009, he had prepared Majroobi Chhitti for accused Naseem son of Abdul Hamid and accused Sahab Singh son of Dalganjan Singh in his handwriting the original of which is available on the file of connected S.T. and photo copy of the same after being compared with the original, is being filed in the present which are Exhibits Ka-57 and Ka-58.

93. In cross examination this witness has stated that in both the Majroobi Chhitti crime no. is not endorsed nor has it been written as to by which weapon the said injuries were caused nor date has been endorsed. Thereafter, he stated that in one Majroobi Chhitti date is endorsed but not in other. He denied the suggestion that these were forged papers and that date was subsequently inserted and that he was not posted at the relevant time in Hamirpur.

94. S.I. Kailash Chandra who is one of the Investigating Officers of this case has stated in cross-examination as PW14 that he does not know as to whether prior to initiating proceedings under section 299 Cr.P.C. the writ petitions were pending before the High Court or not, nor could be tell as to whether High Court had restrained arrest of the accused nor does he know that the accused Rukku and Ashok Singh Chandel had been bailed out and subsequently their bails were rejected by High Court or not. He has stated it to be wrong that Rukku was not absconding and that he was not making effort to avoid his arrest.

95. S.I. Uma Shankar Singh who is also one the Investigating Officers of this case has stated in cross examination as PW5 that about two and quarter hours after departure from the police station, Mukhbir had met him and thereafter, after 50 minutes, he came back to the police station. He did not make effort to take public witness. Time of arrest was 5.30 A.M. and there was no public witness. The place where Mukhbir had given information was about one furlong away from the place of arrest. When informant had pointed out the accused and at that time he along with his police team was about 10-15 paces away from him, which place was on the Kanpur road by the side of the road. The accused was to the north of him. He wanted to flee from there but could not run away. He does not recollect whether Fard of arrest was prepared at the place of occurrence or not and whether the signatures of companion police officials and that of accused were taken or not. He had not sent information of arrest of the accused to his home folks and has denied that he did not follow the procedure of arrest.

96. Constable Vijay Shankar Tiwari has been examined as PW16 and has stated that on 5.9.1989 he was posted with Dy. S.P. Sukhram Sonkar in CB CID Khand, Kanpur whose writing he recognizes. The Exhibit Ka-64 on the file of connected S.T. was signed by Dy. S.P. Sukhram Sonkar, photocopy of the same after being attested was being filed by him comparing it with the original, in the present file which is Exhibit Ka-60. Similarly paper no. 264 Ka/2 of the summoned file, photo copy of that was being filed after being compared, in the present file, as Exhibit Ka-61. In cross-examination he denied that he did not recognize the writing of the deceased Dy. S.P.

97. Constable Krishna Pal Singh has been examined as CW1 who has stated in examination in chief that he was posted on 16.12.2009 in Kanpur CB CID Branch, Kanpur Nagar, a clerk posted there had apprised him that Sukhram Sonkar had retired on 31.7.1999. After having gone to the office and house of Sri Sukh Ram Sonkar, he was told by his son Digvijay Singh that his father died on 11.6.2006.

98. On the basis of entire evidence dealt with above, the trial court has convicted the accused-appellant under above-mentioned sections and has awarded punishment which is cited above. It has to be seen in the light of the arguments made by the learned counsel for the appellant as to whether the impugned judgment requires any interference.

99. It was argued by the learned counsel for the appellant that the accused was a driver of the main accused Ashok Singh Chandel but the Investigating Officer has neither taken registration no. of the vehicle nor his driving license during investigation. Further it was argued that PW1 (informant) was already admitted in hospital how the FIR could be lodged against the accused by him. He being simply a driver had no motive to commit offence as the sole motive existed only to Ashok Singh Chandel and Shyam Singh. Only general allegations are made in the FIR against him (appellant) as this accused was also accompanying other co-accused when incident happened. Rukku had DBBL gun by which he made fire was subsequently added. The eye witnesses could not have seen the occurrence in the evening as it was dark when it is stated first occurrence took place near gun shop of Naseem. Two persons from the side of injured have also sustained injury but no explanation has been given thereof. The trial court has convicted the accused under section 302 IPC simplicitor although there was no such evidence on record. Under section 313 Cr.P.C. no such question was put to him that he remained absconding, hence his abscondance could not be one of the grounds of holding him guilty in the present incident and the accused is lying in jail for the last about 16 years.

100. In rebuttal from the side of the learned A.G.A. it was argued that all the witnesses who were examined in the connected Sessions Trial, in which other co-accused had faced trial, have been re-examined in the present trial and all of them have taken the name of this accused to be amongst those who had made fires upon the complainant's side in which five persons have died and five persons have received injuries. As regards proving the FIR, the same has been proved by PW1, informant of this case by filing certified copy of the original written report which was placed on the file of connected S.T. No. 145 of 2000 after comparing it with the same, which is Exhibit Ka-1. He has further stated that apart from other witnesses who were examined in the connected S.T., one additional witness has been examined in this case who is PW11 Chandan Shukla who also has supported the prosecution version as given in the FIR. The attention was drawn by him to paragraph 14 of the statement of this witness wherein he had stated that after the occurrence his uncle Rajiv Shukla had taken out him (PW11) and Vipul from the Jonga and they were sent home where he was taken by Ajai Saxena of his Mohalla. He also drew the attention towards paragraph no. 19 of his statement wherein he has stated that accused were on Chabutra and were making fires changing their places and because of indiscriminate firing he could not know as to how many fires were made. This witness has given the same statement which have been given by PW1 and PW2 in respect of manner of assault and place of occurrence. He also pointed out that the certified copies of the statement of witnesses have been filed from the side of defence in this case which were recorded in the connected S.T. which would not be treated to be the statement given by the witness in the present case and the judgment cannot be based on the said certified copies of the statement of witnesses in the connected case. In the present case all the documents from the prosecution side have been got proved by summoning original file and after comparing of the photo copies which are filed in the present case with the original of the same which are kept on the connected file and therefore they shall be taken to be well proved. The trial of this accused had to be separated as he had surrendered subsequently. The attention was also drawn from the side of the respondent towards page-18 of the judgment in which it is mentioned that no cross-examination was made of any witness who were examined in the present trial and hence the entire prosecution evidence would be treated as unrebutted, which was sufficient to hold the accused guilty and that the copies of the statement of the said witnesses which were given in connected S.T. and filed in the present case would not be of any significance and the trial court cannot base its judgment of those documents. The only new witness who has been examined by the prosecution side is Chandan Shukla (PW11) who himself was an injured, as he had received injury in first occurrence of this case. He being an injured witness, who had seen the occurrence, no other proper witness could have been provided from the side of prosecution. He also pointed out that in respect of abscondance of the present accused, question no.31 was framed in his statement under section 313 Cr.P.C. to which accused had replied. Therefore, he argued that the judgment should be upheld and appeal should be dismissed.

101. We have gone through the entire evidence as well as other documentary proof given from the side of prosecution. It is the case of prosecution that on 26.1.1997 when PW1, Rajiv Shukla had gone to market in the evening at about 7.30 P.M. along with his servant Lallan, his elder brother Rakesh Kumar Shukla (deceased) and deceased's two sons Gudda and Chandan and son of PW1 Vipul, Shrikant and Ved Prakash were returning from the house of brother-in-law of deceased Rakesh Shukla and when they reached near the gun shop of Naseem, Rakesh Shukla (deceased) had stopped his jonga there to talk to PW1 Rajiv Shukla and it was then that the accused came out from the house of Naseem namely, Ashok Singh Chandel, Shyam Singh, Sahab Singh, Jhandu Arakh, driver of Ashok Singh Chandel i.e. Rukku, (present accused-appellant), gunner with rifle and guns in their hands and in prosecution of their common object started making fires upon the jonga and hearing sound of fire at that very moment, from the side of market other accused Raghuvir, his son Dabbu Singh, Pradeep Singh, Uttam and Bhan Singh, Advocate also came in a vehicle, got down from it and started making fires with guns and rifle in their hands by which Sri Kant and Ved received injuries who were sitting in the rear side and also injuries were caused to Rakesh Kumar Shukla, Gudda, Chandan and Vipul who were sitting in the front, by which they also fell down in the vehicle. Due to firing there was stampede and the market was closed down. After getting information of this incident, elder brother of PW1 namely Rajesh Kumar Shukla, Ravi Kant Pandey, Bhagwati Saran Nayak, Sri Prakash, Anil and various other people of Mohalla came there and they all together had taken out Chandan and Vipul from jonga who had sustained minor injuries and these injured were sent home, while rest of the persons were being taken in the same vehicle towards hospital and as soon as the vehicle reached in front of house of Parma Pandit, from the front, again Raghuvir Singh along with accused persons named above as well as Ashok Singh Chandel came there and Ashok Singh Chandel exhorted that no one of this family should be left alive and all the accused started indiscriminate firing in which his brother Rajesh Shukla fell down after getting fire arm injuries. Ravi Kant Pandey also received fire arm injury. The licensed gun of his father which Rajesh Shukla was carrying was also taken away by the accused who fled away after giving effect to this occurrence, towards Chauraha. After the accused having left, it was found that PW1's brother Rakesh Kumar Shukla, Gudda and Rajesh Kumar Shukla had died on the spot and Sri Kant Pandey and Ved Prakash, they were considered to be still alive, therefore, they were taken to hospital where doctor declared them dead.

102. PW1 has fully supported this prosecution version in examination in chief stating that he had seen the occurrence in the light of street light as well as light which was emitting from the house and shops located there. He has clearly stated that the first incident occurred in front of shop of Naseem when Jonga was stopped by his brother Rakesh Shukla, to talk to him and soon thereafter from the shop of Naseem all the accused i.e. Ashok Singh Chandel, Naseem, Sahab Singh, Rukku, Jhandu, Shyam Singh and government gunner came out and out of them Ashok Singh Chandel was armed with DBBL gun, Sahab Singh armed with rifle, Shayam Singh armed with SBBL gun, Rukku (present appellant) armed with DBBL gun, Jhandu armed with DBBL gun, Naseem armed with DBBL gun and government gunner armed with official gun, and in prosecution of their common object started firing on Jonga in which his brother Rakesh along with his relatives were sitting and soon thereafter hearing the fire other co-accused Raghuvir Singh armed with rifle, Man Singh armed with DBBL gun, Uttam Singh armed with DBBL gun, Pradeep Singh armed with SBBL gun and Dabbu Singh armed with DBBL gun also reached there and started firing upon jonga and in this occurrence, his brother Rakesh Shukla, Sri Kant Pandey, Ved Nayak, Chandan, Vipul and Gudda received injuries and soon thereafter his elder brother Rajesh Shukla, Ravi Kant Pandey, Bhagwati Saran Nayak, Sri Prakash Nayak, Anil Dwivedi and other peoples of Mohalla reached there and Chandan and Vipul were sent home because they had got minor injuries. Thereafter, when complainant started proceeding towards hospital along with injured persons, as soon as they reached near the house of Parma Pandit again the accused came there in vehicle and at the exhortation of Ashok Singh Chandel that none should be left alive and all of them made fires with their respective weapon indiscriminately in which injuries were received by Rajesh Bhaiya, he himself, Ravi Kant Pandey and Hardayal Verma.

103. Believing that Rajesh Bhaiya, Rakesh Bhaiya, nephew Gudda @ Ambuj, Sri Kant Pandey and Ved Prakash might be alive and their lives could be saved, they were taken to District Hospital where they were declared dead. Other injured persons were also taken to hospital for their medical examination. This witness has not been cross-examined at length and merely his statement which was recorded in the connected S.T. was supported in the present case which is Exhibit Kha-11. In the cross-examination, we find that nothing has been asked which could point out his testimony given in the examination in chief to be doubtful as he is an injured witness and his presence on the spot cannot be disbelieved.

104. PW2 Ravi Kant Pandey has also supported the prosecution case has narrated above. He has repeated the same version which has been given by PW1 and in cross-examination, his statement which was recorded in connected S.T. has been filed as Exhibit Kha-11 but nothing else has been asked from him which would assail his testimony in the examination in chief and therefore, his testimony in the examination in chief in respect of having seen the occurrence cannot be disbelieved.

105. Besides these two eye witnesses, one important eye witness has been examined in this case who is the injured witness namely, Chandan Shukla who was in the Jonga when this occurrence had happened. He was just 11 years old at the time of occurrence. He has clearly stated the names of the co-accused including the present accused-appellant who had participated in the occurrence and has stated that he had seen them in the light of bulb and also light which was emitting from the houses situated there. We have already expressed our opinion with respect to statement of this witness being believable despite the fact that he has made little exaggeration by saying that he had seen the accused after standing on Jonga and had taken turn to see as to which weapon was being carried by which accused. Such kind of exaggeration may be over looked but in sum and substance, his testimony has also corroborated the version of occurrence given by PW1 and PW2. We find that all the three witnesses i.e. PW1, PW2 as well as PW11 who are examined in the present case are injured witnesses and therefore, their testimonies are found to be trustworthy in respect to participation of the accused-appellant who has been named by them to fire upon the deceased as well as the injured in prosecution of their common object to kill the deceased persons and also causing serious injuries to others.

106. Dr. N.K. Gupta (PW3) has found injuries of fire arms upon the persons of Rajiv Shukla, Hardayal Verma, Ravi Kant, Vipul and Chandan. All these injuries are found to have been caused to these persons by fire arm.

107. Dr. S.R. Gupta (PW4) had conducted X-Ray of the injured namely Rajiv Shukla, Hardayal Verma, Ravi Kant, Vipul and Chandan and has proved the X-Ray reports in which he has found radio opague shadow which is indicative of the fact that all had sustained fire arm injuries.

108. Dr. P.N. Parya (PW5) had conducted the post-mortem of deceased Rakesh Shukla and had found as many as 11 fire arms wounds on his person. He also conducted the post-mortem of Rajesh Shukla and found on his person as many as five injuries of fire arm, one abrasion and one contusion. He also conducted post-mortem of deceased Sri Kant Pandey and found on his person two injuries one of entry and other of exit and all the three deceased were stated to have died due to the said injuries.

109. Dr. R.S. Gupta (PW6) has conducted post-mortem of deceased Ambuj @ Gudda and found four fire arm injuries on his person and one abrasion. He also conducted the post-mortem of deceased Ved Prakash and found on his person two fire arm wounds one of entry and other exit and a contusion.

110. All the above-mentioned doctors have clearly proved that five deceased named-above have died due to fire arm injuries and five injured who have been named-above also received fire arm injuries which according to prosecution, have been caused by the present accused appellant along with other co-accused in prosecution of their common object to kill the entire family members of the informant and this occurrence has been proved by injured eye witnesses which happened at two places. First occurrence happened in front of shop of Naseem and thereafter when complainant side proceeded to hospital and reached near the house of Parma Pandit, the second time they were assaulted by making indiscriminate firing upon the Jonga in which five persons have died who have been named-above and other five injured received injuries who have also been named-above. No detailed cross-examination has been made of above doctors from the defence side except that copies of their statements have been placed on record in the present case after comparing it with original which were kept on the file of the connected S.T. in which trial was held of other co-accused persons. Therefore, we find that ocular testimony is fully found corroborated by the medical evidence. As the injuries which are found to have been sustained by the deceased as well as injured, were of fire arm and the accused were also wielding fire arms.

111. As regards, no explanation having been given regarding the accused side having sustained injuries, by the prosecution side, it may be mentioned that injuries found on the side of accused were not serious and therefore, non-explanation of them would not prove fatal for the prosecution case.

112. It would be appropriate to rely upon the law laid-down in Rajan Rai vs. State of Bihar, AIR 2006 SC 433 in which it has been held that the judgment of acquittal of a co-accused rendered in earlier trial arising out of the same transaction was totally irrelevant in case of the present accused who was tried separately. The said judgment was not admissible under Section 40 to 44 of the Evidence Act. It is a case of acquittal of co-accused which was decided on the basis of the evidence led therein while the case of the present accused has to be decided on the basis of the evidence adduced during the course of the present trial.

113. In view of above proposition of law, it could be said safely that the present case is squarely covered under the above proposition of law and looking to the fact that from the side of accused no detailed cross-examination has been made of any witness other than the witness PW11 who was, for the first time, examined in the present trial, while rest of the witnesses who had deposed in the connected S.T. relating to other co-accused, true copies of their statement, after comparing it with original, have been placed in the file of present case, but we cannot take those statement into consideration because they were recorded in earlier trial while the present trial is different one and the present trial has to be decided only on the basis of evidence which has been adduced in the present case, from both the sides.

114. In view of the above, we find that apart from testimony of PW11, rest of the prosecution witnesses are unrebutted which clearly proves the case against the accused-appellant being driver of the main accused Ashok Singh Chandel, his participation is absolutely proved from the prosecution side and we find that he was also involved in forming unlawful assembly with common object to eliminate the entire family of the informant which was coming in Jonga and in prosecution of the same, the present accused-appellant had participated by making indiscriminate firing upon the said Jonga which was occupied by the deceased and other injured persons. It is also apparent that the main accused Ashok Singh Chandel was having political rivalry with the complaint side because of which this occurrence has taken place. Therefore, we do not find any infirmity in the impugned judgement and order of the trial court, the same is hereby upheld and appeal lacks merit, is accordingly dismissed. The accused is in jail. He shall serve out the sentence awarded by the trial court.

115. Let a copy of this judgement be transmitted to the trial court along with record of the trial court for necessary information and follow up action and its compliance forthwith.

(Dinesh Kumar Singh-I, J.)    (Ramesh Sinha, J.)

Dated: 24.5.2019

A.Mandhani/AP Pandey/AU