Makrand Singh And Others vs State Of U.P.
2022 Latest Caselaw 16 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

			                                                     
 
A.F.R.
 
Reserve Judgement
 
Court No. 40
 
Case :- CRIMINAL APPEAL No. - 4255 of 2006
 
Appellant :- Makrand Singh And Others
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Deshraj Garg,Rajiv Lochan Shukla,A/D0103
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Manoj Kumar Gupta, J.

Hon'ble Om Prakash Tripathi, J.

(Delivered by Om Prakash Tripathi, J.)

Heard Shri Rajiv Lochan Shukla, learned counsel for the appellants and Shri A.N. Mulla, learned A.G.A. for the State and perused the material on record.

The appellants have preferred this criminal appeal aggrieved by judgment and order dated 27.07.2006 passed by Additional Sessions Judge/ Fast Track Court IInd Court No. 7, Banda, in Session Trial No. 86/2004 arising out of Case Crime No. 198 of 2003 (under Section 302/34 I.P.C.), Session Trial No. 87 of 2004 arising out of Case Crime No. 210 of 2003 (under Section 25/27 Arms Act), Session Trial No. 88 of 2004 arising out of Case Crime No. 202 of 2003 (under Section 25 Arms Act), Session Trial No. 89 of 2004 arising out of Case Crime No. 203 of 2003 (under Section 25 Arms Act), Session Trial No. 90 of 2004 arising out of Case Crime No. 204 of 2003, (under Section 30 Arms Act) Police Station -Baberu, District- Banda convicting and sentencing the appellants to undergo imprisonment for life under Section 302/34 I.P.C. with a fine of Rs. 5000/- each and in default of payment of fine to undergo six months additional rigorous imprisonment, convicting and sentencing the appellant nos. 1, 2 & 4 under Section 25 of Arms Act to undergo two years rigorous imprisonment and fine of Rs. 1000/- each and in default of payment of fine to undergo two months additional rigorous imprisonment and appellant no. 3 Ramchandra under Section 30 of Arms Act to undergo three months imprisonment. All the sentences shall run concurrently.

The prosecution case is as follows:

Virendra Singh, the complainant lodged the first information report on 06.10.2003 at Police Station- Baberu, District- Banda alleging therein that on 06.10.2003 at 6:00 p.m. his son Suresh Singh, Sughar Singh S/o Chandan Singh R/o Vibhar Thok, Kasba Baberu and Other relatives were coming to their village. On the way (near to ''Puliya') accused Makrand Singh S/o Shiv Kumar, Ramjeet, Ramkaptan, Rishikesh S/o Chandrabali came with arms in their hands. Everyone fired with their own weapons, which hit Suresh, after being shot, Suresh fell in a pool of blood and died in agony. Then the accused fled away from the scene of occurrence.

On the basis of the written report (Exhibit Ka-1), the police registered Case Crime No. 198 of 2003, under Section 302 I.P.C. Investigation of the case was taken over by Inspector Jai Shankar Pandey (PW-10). He rushed to the spot and recorded the statements of the witnesses under Section 161 Cr.P.C. and prepared a map of the site. The postmortem of the dead body has been done after ''Panchayatnama'.

During investigation, recovery has been made from the possession of accused persons. On 09.10.2003 at 11:00 a.m. S.H.O. Jai Shankar Pandey (PW-10) along with his police personnel caught two person namely Ramjeet Singh and Rishikesh Singh both S/o Chandrabali Singh. One factory made Rifle AB01/4150 (315 bore) with three live cartridges have been recovered from the possession of Ramjeet Singh. One country made pistol and two live cartridges (315 bore) have been recovered from the possession of accused Rishikesh Singh. On the pointing of Ramjeet and Rishikesh Singh, one licensee rifle (315 bore) has been recovered from the possession of Ramchandra Singh.

On 22.10.2003, one S.B.B.L. Gun (12 bore), two live cartridges have been recovered from the possession of accused Makrand Singh.

On the basis of aforesaid recovery, Sections 25 & 25/27 of Arms Act have been made upon accused Ramjeet Singh, Rishikesh Singh and Makrand Singh respectively.

The postmortem examination of the dead body of the deceased Suresh Singh was conducted by Dr. S.P. Gupta (PW-5) on 07.10.2003. As per the post mortem report, the deceased was about 38 years old. On internal examination of the deceased, the doctor opined that the deceased died due to haemorrhage and shock as a result of Ante-Mortem Firearm Injury. Ante-mortem injuries are as follows:-

(i) The firearm wound of entry of 3cm x 3cm, bone deep on right side of neck. 05Cm away from lower part of right ear. Margin inverted. Blackening present.

(ii) The firearm wound of exit of 5cm x 3 cm, bone deep on left side of neck including 1cm of lobule of left ear. Connected to injury no. 1. Margin everted.

(iii) The firearm wound of entry 2cm x 2 cm, bone deep on left side of neck, 5cm away from injury no. 2. Margin inverted. Blackening present.

(iv) The firearm wound of exit of 4cm x 4cm bone deep right side of head just behind right ear. Margin inverted connected to injury no. 3. On section right temporal, right parietal and occipital bone fractured.

(v) The entry wound of fire arm size 2cm x 2cm, muscle deep on upper part of back of chest in right scapular region. Margin inverted. Blackening present.

(vi) Fire arm wound of entry 3cm x 3cm bone deep right shoulder, 01 cm away from end of right clavicle. Margin everted and connected to injury no. 5. On section right collar bone fractured.

(vii) Fire arm wound of entry 3cm x 3cm bone deep on left side of chest 13 cm away from left axilla & 12cm away from left nipple. Margin inverted. Direction from left to right. Rib fractured on section 6th and 7th .

After collecting evidence, Investigating Officer submitted charge sheet under Section 302 I.P.C. against all accused and accused Makrand Singh under Section 25/27 Arms Act, Ramjeet Singh under Section 25 Arms Act, Rishikesh under Section 25 Arms Act, Ramchandra under Section 30 Arms Act.

Thereafter committal proceeding took place and the case of four accused Makrand Singh, Ramjeet Singh, Ram Kaptan and Rishikesh were committed to court of session where they were registered as Sessions Trial Nos. 86/2004, 87/2004, 88/2004, 89/2004, 90/2004. After that all these connected sessions trials were made over to the court of Sessions Judge, Banda for trial and disposal of the cases. On 25.03.2004, the trial court was prima facie satisfied with the case against the accused therefore charges under Sections 302/34 I.P.C. were framed against all the accused namely Markand, Ramjeet Singh, Ram Kaptan and Shrikesh. Charge under Section 25 of Arms Act were framed against accused Makrand Singh, Ramjeet Singh, Shrikesh Singh and charge under Section 30 of Arms Act was framed against Ram Chandra Singh. The charges were read over and explained to the accused who pleaded not guilty and claimed to be tried.

In order to prove the guilt of the accused and substantiate charges against them the prosecution examined Virendra Singh (complainant) (PW-1), Head Constable Harprasad (PW-2), Jatrem (PW-3), Sughar Singh (PW-4), Dr. S.P. Gupta (PW-5), Rakesh Singh (PW-6), Sub-Inspector Rajdeo Singh (PW-7), Sub Inspector R. S. Gaur, (PW-8), Constable S.V. Dwivedi (PW-9), Inspector Jaishankar Pandey (PW-10).

Prosecution has relied on the documentary evidences as (i) Written Report Ex. Ka-1, (ii) F.I.R. Kayami G.D. Ex. Ka-2, (iii) Kayami G.D. Ex. Ka-3, (iv) F.I.R. Ex. Ka-4, (v) Kayami G.D. Ex. Ka-5, (vi) Postmortem Report Ex. Ka-6, (vii) Inquest Report Ex. Ka-7, (viii) Letter R.I. Ex. Ka-8, (ix) Letter of C.M.O. Ex. Ka-9, (x) Challan Lash Ex. Ka-10, (xi) Photo Lash Ex. Ka-11, (xii) Sample Seal Ex. Ka-12, (xiii) Blood stained & Plain Earth Ex. Ka-13,(xiv) Recovery memo of Blood Stained ''Angochha' & ''Chappal' Ex. Ka-14, (xv) Recovery memo of Blood Stained ''Angochha' & ''Chappal' Ex. Ka-15, (xvi) Recovery memo of Empty Cartridge Ex. Ka-16, (xvii) Recovery memo of one pair black colour ''Chappal' Ex. Ka-17, (xviii) Recovery memo of one pair white ''Chappal' Ex. Ka-18, (xix) Recovery memo of Rifle, Tamancha & Cartridge & Arrest of Accused Ex. Ka-19, (xx) Recovery memo of search of house of victim Ex. Ka-20, (xxi) Spot Map Ex. Ka-21, (xxii) Recovery memo of SBBL Gun, Cartridge & Arrest of Accused Ex. Ka-22, (xxiii) F.I.R. Ex. Ka-23, (xxiv) Kayami G.D. Ex. Ka-24, (xxv) Spot Map Ex. Ka-25, (xxvi) Charge Sheet Ex.a-26, (xxvii) Sanction Order of D.M. Ex. Ka-27, (xxviii) Charge Sheet Ex. Ka-28, (xxix) Sanction Order of D.M. Ex. Ka-29, (xxx) Charge Sheet Ex. Ka-30, (xxxi) Sanction Order of D.M. Ex. Ka-31, (xxxii) Charge Sheet Ex. Ka-32, (xxxiii) Spot Map Ex. Ka-33, (xxxiv) Spot Map Ex. Ka-34, (xxxv) Charge Sheet Ex. Ka-35, (xxxvi) Spot Map Ex. Ka-36, (xxxvii) Report of Vidhi Vigyan Prayogshala Ex. Ka-37, Ka-38, Ka-39.

After completion of evidence of the prosecution all incriminating facts and materials were put to the appellants under Section 313 Cr.P.C. They denied the fact and materials and stated that they have been falsely implicated. Virendra Singh (complainant) was forcibly ploughing the land of his brothers Vijay Bahadur Singh, Ghanshyam Singh and Surendra Singh, in which we had duly taken legal possession by buying land of Vijay Bahadur Singh and Surendra Singh long before the murder. Due to which Virender Singh (complainant) started to feel very jealous. For this reason they have been falsely implicated. We are innocent. The witnesses have given evidence falsely due to enmity. False recovery of incriminating materials have been shown but no witness has been examined in defence.

PW-1 Virendra Singh (Complainant) (eye witness of incident) had deposed on oath that the murder of my son Suresh Singh took place prior to one year and 20 days from today. Prior to the murder of Suresh Singh, murder of Chandrabali Singh took place three years ago. Accused began to make suspicion on my son Suresh Singh. Deceased Suresh Singh, I, Satyendra Singh, Sughar Singh S/o Chandan Singh, Jatrem Singh R/o Bamraula, P.S.-Marka were coming to their village at 6:00 p.m. When Suresh deceased came near ''Puliya', Makrand Singh S/o Shiv Kumar Singh, Ramjeet Singh S/oChandrabali Singh, Ram Kaptan Singh S/o Chandrabali and Rishikesh Singh S/o Chandrabali Singh appeared with weapons. Ramjeet has taken rifle of his brother Ramchandra, rest accused were armed with firearm. Seeing my son, accused Ramjeet exhorted that enemy found today, so kill him; then all the accused fired together on the body of Suresh Singh. The incident took place on 06.10.2003 at 6:00 p.m. My Son Suresh Singh got injured by the shot of the accused, he fell down and died on the spot. Accused fled away after hitting my son. Written report was written by Jagdish Singh on my dictation who met me in Baberu. After writing the report Jagdish read-over to me, then I put my signature on the report. I, Daljeet and Rakesh went to police station at about 8:30 or 8:45 p.m. in the night. Witness has identified his signature on the written report which has been exhibited as Exh. Ka-1. I do not remember that inquest report was prepared on the same day or next day. I also put my signature on the inquest report. Postmortem took place on the next date. Relevant evidence in cross examination will be discussed later on.

PW-2 Head Constable Harprasad, P.S.-Atarra, District-Banda, formal witness had proved the Chik F.I.R. as exhibit Ka-2 and Kayami G.D. Ka-3. It is also stated by the witness that on 06.10.2003 when he was Head Moharir at P.S.-Baberu at 9:45 p.m. Virendra Singh S/o Cheda Singh, his son Rakesh and Daljeet Singh came with written report and on the basis of written report, I lodged Case Crime No. 198/2003 under Section 302 I.P.C. Witness has also proved Chik F.I.R. 129/2003, Crime No. 202, 203 of 2003 under Section 25 Arms Act and Crime No. 204/03 under Section 30 Arms Act. On the basis of recovery memo prepared by S.I. Jai Shankar Pandey the witness proved the said Chik F.I.R. as exhibit Ka-4 and Kayami G.D. Exh. Ka-5. In the cross examination the witnesses stated that it is wrong to say that entire preparation of record was made by me as ante-dated and ante-timed, after lodging the report Kotwal forthwith proceeded towards the place of occurrence. Complainant also went with S.H.O. in his jeep. The complainant and his companions came to the police station by the vehicle. In the F.I.R. date 08.10.2003 has been shown under the signature of Circle Officer and dated 13.10.2003 is endorsed under the signature of first A.C.J.M.

PW-3 Jatrem stated in examination-in-chief that Virendra Singh is the father of the deceased Suresh Singh. Virender Singh is not alive. The incident took place about prior to 1½ years. Cheda Singh was the son of Virendra Singh. I was not on the spot and have not seen the murder of Suresh Singh. It is wrong to say that I have seen the incident that on 06.10.2003 at 6:00 p.m. near Puliya Ramjeet, Makrand, Rishikesh and Ram Kaptan had murdered my brother-in-law Suresh Singh by rifle and the witness was declared hostile by the prosecution and denied the statement made under Section 161 Cr.P.C.

PW-4 Sughar Singh (eye witness of the incident) had deposed on oath that deceased Suresh Singh was son of my brother-in-law Virendra Singh. The incident took place on 06.10.2003 at 6:00/6:15 p.m., I went at the house of Virendra Singh on the date of incident. Cheda Singh father of Virendra Singh, was going to "Gaya" so I reached at his house on 06.10.2003 about 6:00 p.m. I, Suresh Singh, Virendra Singh, Jatrem were coming back to Parsauli. We three were walking together and deceased Suresh Singh was in front of us when deceased Suresh Singh reached near ''Puliya' there was crop of ''Jwar' in the adjoining field and there was ''Babool' on the road. Four people came out from bush of ''Babool' namely Makarand Singh, Ramjeet, Ram Kaptan and Rishikesh Singh. Seeing Suresh Singh, Ramjeet shouted that enemy found today, so kill him, then all the accused fired together on the body of Suresh Singh. Suresh Singh injured by the shot of the accused fell down and died on the spot. Accused fled away after hitting Suresh Singh. Seeing this incident, we shouted loudly. When we shouted, the accused again fired towards us twice. While running away, two pairs of slippers of the accused were left on the spot. Jatrem is the brother-in-law of the deceased.

PW-5 Dr. S.P. Gupta stated that on 07.10.2003 I was working on the post of surgeon in District Hospital Banda. My duty was in postmortem that day. The dead body of Suresh Singh S/o Virendra Singh Thakur R/o Parsauli, P.S.- Baberu, District- Banda, was brought before me by Constable Saieuddin, P.S.- Baberu in a bundle of clothes with a seal. The age of deceased was about 38 years and the probable time after death was a day. The body structure of the deceased was normal. Eyes and mouth were closed. After death, the rigor mortis has passed away from the neck while it was present in the upper and lower limbs. Injuries on the body of the deceased has been mentioned previously.

Relevant portion of evidence in cross examination shall be mentioned during the discussion.

PW-6 Rakesh Singh S/o Virendra Singh has stated that the incident took place on 06.10.2003. Chandravali Singh was murdered three years ago. On the said date, my brother Suresh Singh was coming to his village from Purwahar at around 6:00 p.m. with my relative Jatrem, Sughar Singh. On the way near ''Puliya' my villager Makrand Singh, Ramjeet, Ram Kaptan and Rishikesh were carrying firearm in their hands. Ramjeet has taken rifle of brother Ramchandra and seeing my brother Suresh Singh, Ramjeet shouted that enemy found today, so kill him; then all the accused fired together on the body of Suresh Singh. My brother Suresh Singh, injured by the shot of the accused, fell down and died on the spot. Accused fled away after hitting my brother. Relevant portion of cross examined shall be discussed later on.

PW-7 witness Rajdeo Singh S.I., is formal witness. He prepared and proved Panchayatnama Ex.Ka-7, letter R.I. Ex. Ka-8, letter C.M.O. Ex. Ka-9, Challan Lash Ex. Ka-10, Photo Lash Ex. Ka-11 and sample seal Ex. Ka-12. The witness has also collected plain earth and blood stained earth from the spot proved as Ex. Ka-13, recovery memo of Angochha and Chappal has been prepared and proved as Ex. Ka-14, recovery memo of one cartridge 12 bore prepared on the spot on 07.10.2003 proved by the witness as Ex. Ka-15, recovery memo of three empty cartridges 315 bore prepared and proved as Ex. Ka-16 from the spot witness as prepared recovery memo of Chappal black colour and proved as Ex.Ka-17. Recovery memo of one pair white chappal plastic prepared and proved as Ex. Ka-18. Recovery memo of the search of the house of victim by S.H.O. Vijai Shankar Pandey was prepared and proved by the witness as Ex. Ka- 19 & 20. This was the witness of recovery of (Alakatal) and proved the recovery memo of the Alakatal as Ex. Ka-19. The witness also proved one pair white plastic chappal material Ex. Ka-1, one pair black colour chappal material Ex. Ka-2. The witness also proved one factory made Rifle 315 bore and 3 live cartridges as material Ex, Ka-3 to 6.

PW-8 S.I. R.S. Gaur was witness of recovery and had accompanied on 09.10.2003 at 8:45 a.m. Accused Ramjeet Singh was arrested with factory made rifle 315 bore AB01-4150 and 3 live cartridges 315 bore. Other accused Rishikesh was also arrested on the same day later on bearing with one Tamancha 315 bore having in the left side of his pant and two live cartridges 315 bore. Ramjeet stated that recovered rifle and cartridges belong to my brother Ramchandra who is retired military man. Recovery memo was prepared on the spot and proved by the witness as Ex. Ka-19. The site plan of recovery place has been prepared by Inspector Jai Shankar Pandey whose writing and signature is acquainted by the witness and he had proved the said map as Ex. Ka-21 and on the basis of said recovery Crime No. 202, 203, 204 of 2003 under Section 25 & 30 of Arms Act has been registered.

On 22.10.2003 witness was in the company of Inspector Jai Shankar Pandey and Constable Wahiuddin, Constable Dharmendr Singh and Driver Shiv Ram Singh.

On 23.10.2003 at 1:45 a.m. arrested Makrand Singh with one SBBL Gun and in the left pocket two live cartridges. The accused had also confessed that he used this gun in commission of the murder of Suresh Singh. Recovery memo of arrest and recovered articles were proved as Exh. Ka-22. F.I.R. of the said case has been also proved as Exh. Ka-23 and G.D. as Exh. Ka-24. Spot map as Exh. Ka-25, Charge sheet as Exh. Ka-26.

Prosecution sanction Exh. Ka-27, Charge sheet of Session Trial No. 88 of 04 proved as Exh. Ka-28, prosecution sanction as Exh. Ka-29, charge sheet Exh. Ka-30. Prosecution sanction Exh. Ka-31, charge sheet of Session Trial No. 90/04 proved as Exh. Ka-32, spot map relating to Session Trial No. 86/04 as Exh. Ka- 33, recovery memo of gun and spot map proved as Exh. Ka- 34 & 35.

Constable S.V. Dwivedi PW-9 deposed on oath and he has proved spot map of the recovery of Crime No. 207/2003 as Exh. Ka-36.

PW-10 Inspector J.S. Pandey Investigating Officer of Crime No. 198/2003 under Section 302 I.P.C. has collected evidence. Recovery memos were already proved as Exh. Ka- 13 to 18. Recovery memo of country made Tamancha was prepared on 09.10.2003 and exhibited as Exh. Ka-19, Spot map as Exh. Ka- 21. On 23.10.2003 Makrand Singh was arrested with SBBL Gun 12 Bore with two live cartridges. Recovery memo was proved as Exh. Ka- 22, Spot map of the recovery was also proved as Exh. Ka- 34, Evidence of witnesses Jagat Prem and Shiv Nagar were recorded. The recovered articles were sent to Vidhi Vigyan Prayogshala, Agra for examination and on the basis of evidence collected charge sheet was submitted to the court which was proved by the witnesses exhibited as Exh. Ka-35.

So far as the F.I.R. is concerned learned counsel for appellants submitted that F.I.R. was lodged ante dated & ante time and was lodged after due consultation.

Complainant PW-1 father of the deceased had deposed that this F.IR. was written by Jagdish Singh on my dictation in Kasba Baberu, Jagdish had read over the written ''Tehrir' to him and I endorsed my signature on it. Written report was exhibited Exh. Ka- 1. Written report was prepared on my dictation addressed to Kotwal Sahab, Baberu. I do not know the second designation of the Kotwal Sahab. On this point it is submitted that in the written report ''Prabhari Nirikshak' has been mentioned. This contradiction will come in the category of minor contradictions. Statement of the witness was recorded after one year from the date of incident. In the statement witness stated that when I endorsed on the written report, there were other member of the public and police personnel were present. In police station it is quite natural that members of the public and police personnel are always present. It is immaterial that where the signature was endorsed on the written report. PW-2 Head Constable Har Prasad has given in his statement that on 06.10.2003 no other cognizable case has been registered in Police Station- Baberu. On the basis of written report this witness prepared F.I.R. and proved as Exh. Ka-2 and this witness also proved Kayami G.D. as Exh. Ka-3. The statement of the witness that except this no other cognizable case has been registered in P.S.- Baberu on the said date, does not denote itself that F.I.R. has been lodged ante dated or ante time. Incident took place on 06.10.2003 at 6:00 p.m. report was lodged on the same day at 20:45 p.m. Distance of the police station is about 16 Kms. from the place of occurrence. PW-6 Rakesh Singh also stated in this statement that when he and his father went to lodge report to the police station, Kotwal Sahab was there and they discussed with him regarding F.I.R. After discussion with Kotwal Sahab my father dictated the written report to Jagdish and taking the Tehrir, Kotwal proceeded from Kotwali after taking him and his father in the Jeep. It is quite natural that after the incident complainant and their family members become fearful and after consolation they proceeded for lodging F.I.R. at the police station. The contention of learned counsel that complainant reached the police station very late i.e. at 8:30 or 8:45 p.m. has no force in the present case. Deceased was 38 years old and after the murder of younger son, father complainant consoled himself and lodged F.I.R. within 2:45 hrs. It shows that F.I.R. was lodged promptly without seeking legal advice. Natural facts were stated in the F.I.R., complainant was also eye witness of the case and it is evident from the written report that name of the assailants, type of the arms bearing and used by each and every accused has been categorically stated in the ''Tehrir'. There was no exaggeration. The submission of learned counsel that F.I.R. is ante time and ante dated has no force.

Learned counsel for appellants submitted that there was no motive to cause the incident. In the F.I.R. motive has been stated in brief that prior to this incident murder of Chandrabali Singh father of the accused took place and accused created suspicion about my son Suresh Singh with regard to his involvement in regard to the murder of Chandrabali Singh. 193 (Kha) certified copy of the F.I.R. by which it is apparent that on 26.12.2000 at about 6:00 p.m. some unknown person had committed the murder of my father Chandrabali Singh S/o Rambaksh when he was sitting before bonfire (Alava). Ramjeet Singh has lodged this F.I.R. and also stated that he and his brother Ramkaptan and Rishikesh Singh were irrigating their field. 194 (Kha) shows that in the said case final report has been submitted by the police. In the statement under Section 313 Cr.P.C. accused had stated that complainant had cultivated the land of his brother Vijay Bahadur Singh, Ghanshyam and Surendra Singh by force which has been purchased by the accused from Ran Vijay Bahadur Singh and Surendra Singh much prior from the date of incident due to this complainant was enemical with the accused and falsely implicated. Photostat copy of ''Bainama' has been filed as Paper No. 188(Kha) to 192 (Kha). The papers are not admissible in evidence due to photostat copy but from the said papers it is evident that on 02.01.1992, 22.10.1998, 16.09.1997, 17.09.1997 & 27.02.2002 sale deeds were executed in favour of the accused persons except Makrand Singh by Indrajeet Singh, Surendra Singh and Ranvijay Singh. Brothers of complainant had not filed any complaint before the competent authority that his brother Virendra Singh had forcibly cultivated their lands. Complainant had also not filed any civil suit for any relief before civil court. No criminal complaint has been filed by the complainant against the accused. It shows that complainant had no grievance due to execution of sale deed by brothers in favour of the accused and the submission of the accused that due to these sale deeds complainant became enemical and falsely implicated them in this case has no force. Complainant had lodged F.I.R. against the persons who had actually caused the murder of his son, Makrand Singh S/o Shiv Kumar. He had no sale deed in his favour, from the brothers of complainant. Ramjeet, Rishikesh, Ramchandra, Ramkaptan had taken sale deeds from the brothers of the complainant. He had also opportunity to falsely implicate Ramchandra whose rifle was used in committing the crime by his brother Ramjeet but the name of Ramchandra had not been shown in the name of assailants. With regard to motive trial court also arrived at the conclusion that accused persons had suspicion on Suresh Singh for the murder of Chandrabali and in this connection CID Officers has called complainant at Allahabad and stated that you and your son are going to be implicated in the murder of Chandrabali Singh. From the evidence on record it is proved by the cogent reliable evidence of the eye witness that incident took place at 6:00 p.m. There was ample light on the spot to recognize the accused by witnesses. It is a case of direct evidence. In case of direct evidence the motive becomes insignificant. It is coincident that death of Chandrabali took place at 6:00 p.m. Death of Suresh also took place at 6:00 p.m. In support of his contention learned A.G.A. has placed reliance on following rulings:-

In Pratap Singh and others vs. State of UP 2021, SCC Online All 686, the Court held that :

"motive is not very relevant in a case of direct evidence, where it dependable ocular version is available. Once, there is evidence forthcoming on the basis of an eye witness account that is consistently narrated by multiple witnesses motive is hardly relevant. "

In Abu Thaker Vs. State of Tamil Nadu, (2010) 5 SCC 91, the Court held that :

"It is settled legal proposition that even if the absence of motive and if allowed is accepted that is of no consequence and pales into insignificance when direct evidence establishes the crime, therefore, in case, there is direct, trustworthy evidence of witnesses as to commission of an offence, the motive part uses its significance. Therefore, if the genesis of motive of occurrence is not proved, the ocular testimony of the witnesses as to the occurrence could not be discarded only by reason of absence of motive, if otherwise the evidence is worthy of reliance."

In Bipin Kumar Mondal Vs. State of West Bengal, (2010) 12 SCC 91, the Court held that :

"motive is of no consequence and pales into insignificance when direct evidence establishes the crime. Motive is a thing which is primarily known to the accused himself and it may not be possible for the prosecution to explain it. Ocular testimony of the witnesses if reliable cannot be discarded only by the reason of the absence of motive."

From the evidence of the PW-1 Virendra Singh, PW-4 Sughar Singh, it is evident that they were present at the time of occurrence. Murder of Suresh Singh has been committed by the accused before them. They have witnessed the occurrence. Thus in the presence of direct and reliable evidence motive losses its importance. In the cross examination of PW-6 he stated that it is wrong to say that for wife of Suresh, Ashok and his companions had committed murder of Suresh Singh at any time in the night. It has also been stated in the statement that the wife of Suresh Singh had fled away from the house. I do not know that Ashok had married her. Suresh had two sons, they are left at my house. I do not know that how many sons begotten by her from Ashok. This defence has also not been stated during the statement under Section 313 Cr.P.C. So this defence will not help the accused. It is also proved that complainant has no reason to implicate the accused falsely in this case. He would have opportunity to falsely implicate Ramchandra in the list of assailant but he had not mentioned the name of Ramchandra whose licensee rifle has been used in the crime. Only actual facts has been stated in F.I.R. Motive to commit this crime is proved. Thus the submission of learned counsel that they have been falsely implicated in the case and had no motive to kill deceased is not tenable.

The postmortem report examination was conducted on the body of the deceased Suresh aged 38 years by Dr. S.P. Gupta, Motilal Nehru Zila Chikitsalaya, District Hospital, Allahabad on 07.10.2003. Ante mortem injuries were as follows:-

i) The firearm wound of entry of 3cm x 3cm, bone deep on right side of neck. 05Cm away from lower part of right ear. Margin inverted. Blackening present.

(ii) The firearm wound of exit of 5cm x 3 cm, bone deep on left side of neck including 1cm of lobule of left ear. Connected to injury no. 1. Margin everted.

(iii) The firearm wound of entry 2cm x 2 cm, bone deep on left side of neck, 5cm away from injury no. 2. Margin inverted. Blackening present.

(iv) The firearm wound of exit of 4cm x 4cm bone deep right side of head just behind right ear. Margin inverted connected to injury no. 3. On section right temporal, right parietal and occibital bone present.

(v) The entry wound of fire arm size 2cm x 2cm, muscle deep on upper part of back of chest in right scapular region. Margin inverted. Blackening present.

(vi) Fire arm wound of entry 3cm x 3cm bone deep right shoulder, 01 cm away from end of right clavicle. Margin everted and connected to injury no. 5. On seclon right collar bone fractured.

(vii) Fire arm wound of entry 3cm x 3cm bone deep on left side of chest 13 cm away from left axilla & 12cm away from left nipple. Margin inverted. Direction from left to right. Rib fractured on section 6th and 7th .

The cause of death was excess bleeding and shock due to antemortem firearm injuries. It is wrong to say that there is no possibility of death of the deceased on 06.10.2003 at 6:00 p.m. There was no mud on the clothes of the dead body of the deceased. On the basis of blackening it can be said that firearm injury has been inflicted from a distance of three feet.

From the perusal of report from Vidhi Vigyan Prayogshala exhibit Ka-37 it has been mentioned that both blood stained soil and plain soil are same in their physical merits. It has been mentioned in exhibit Ka-38 there is report that on blood stained soil and plain soil, Angochha, Chappal, Kurta, Baniyan, Underwear, Kalawa, Chaddi, blood stains were found on major parts. On kurta, Tahmad, Baniyan, Underwear blood stains were found in large area. On Kurta, Tahmad, Baniyan, Underwear, Kalawa human blood was found. It has been mentioned in exhibit Ka-39 that there is sign of firing pin on the cartridges recovered and examined. There is comparative lack of sign of firing pin on the cartridges recovered with SBBL Gun. There is also lack of merits on the recovered cartridges TC-4, TC-5. Recovered cartridges EC-2 and EC-3 have been fired by rifle and cartridges EC-4 has been fired by country made pistol. Thus, on the said report, it is apparent that human blood was found on the clothes of the deceased and it is also clear that rifle and country made pistol has been used in commission of the crime. In injury no. 1, 3 and 5 margin inverted and blackening present shows that cartridges fired from very short distance from the accused. These facts also support the prosecution case.

The main question before us is that whether accused Makrand Singh, Ramjeet Singh, Ramkaptan, Rishikesh had committed the murder of Suresh in furtherence of common intention by firearm.

PW-1 complainant (eye witness) father of the deceased had deposed that murder of my son Suresh Singh took place prior one year and 20 days from today. Deceased Suresh Singh, I, Satyendra Singh, Sughar Singh and Jatrem P.S.-Marka R/o Bamraula were coming to their village at 6:00 p.m. when Suresh Singh came near ''Puliya' then Makrand Singh, Ramjeet Singh, Ramkaptan and Rishikesh appeared with firearm, Ramjeet had taken rifle of his brother Ramchandra; rest accused were armed with firearm. Seeing my son, Ramjeet exhorted that enemy found today, so kill him, then all the accused fired on the body of the Suresh Singh. The incident took place on 06.10.2003 at 6:00 p.m. My son Suresh Singh was injured by the shot of accused persons. He fell down and died on the spot. Accused fled away after hitting my son.

PW-4 Sughar Singh eye witness of the incident had deposed that Suresh was son of my brother-in-law Virendra Singh. He went to the house of Virendera Singh on the date of incident. Virendra Singh had returned from ''Gaya' so I went to his house. On 06.10.2003 about 6:00 p.m. I, Suresh Singh, Virendra Singh, Jatrem were coming back to Parsauli. We all three were walking together and deceased Suresh Singh in front of us when deceased Suresh reached near ''Puliya' there was crop of Jwar in the adjoining field and there was a Babool tree on the road. Four people came out from the bush of the Babool, namely Makrand Singh, Ramjeet, Ramkaptan and Rishikesh. Ramjeet exhorted that enemy found today, so kill him, then all the accused fired on the body of Suresh Singh. Suresh Singh injured by the shot of the accused fell down and died on the spot. Accused fled away after hitting Suresh Singh. Seeing this incident we shouted loudly. When we shouted, accused again fired twice while running away. Two pairs of slippers of the accused were left on the spot. Jatrem is the brother-in-law of the deceased.

PW-6 Rakesh Singh has also stated that the incident took place on 06.10.2003. On the said date my brother Suresh Singh was coming to his village from Purvahar at around 6:00 p.m. with Jatrem, Sughar Singh. When they reached near ''Puliya', Makrand Singh, Ramjeet Singh, Ramkaptan, Rishikesh were carrying fire arm in their hands. Ramjeet had taken rifle of brother Ramcandra and seeing my brother Suresh Singh, Ramjeet shouted that enemy found today, so kill him, then all the accused fired on the body of the Suresh Singh. My brother was injured by shot of the accused. He fell down and died on the spot. Accused fled away after hitting my brother.

Relevant portion from the evidence of cross examination of PW-1-my son Suresh Singh had no goods with him. After the murder of Suresh, I remained on the spot for about 15 minutes. Villagers came on the spot within five minutes after firing, name is not remembered. Villagers did not saw the incident but saw the dead body of the deceased. Before exhortation and killing how many fires were shot was not remembered. Accused had given abuses which has not been mentioned in the report. I saw that accused fired on the deceased from distance about 3-4 Gatha. Accused hide themselves about 3-4 Gatha from the road, one Gatha is about four hands. My son Suresh Singh did not receive gun shot injury over the ''Puliya' but in the West of the ''Puliya' I, and Sughar Singh were moving along each other and Jatrem was behind us. All the accused fired from the place where they have hidden themselves in the field. Prior to the murder of Suresh Singh, my younger brother was also murdered. I have not seen the wound on the body of the Suresh. When Suresh Singh received firearm injury, his leg was in the water and mud and rest of the body was in dry area. After receiving firearm injury Suresh Singh fell on the ground and his stomach was on the earth. I have not seen the number of the rifle. Makrand belongs to different family. There is no dispute and enmity with the family of Makrand Singh.

In the cross examination of PW-4 he stated that I am ''Samadhi' of Virendra Singh complainant. My son Janak Singh is married with Vandana, younger sister of Suresh five years ago. Virendra Singh had gone to ''Gaya' for performing post death rituals of his father, prior one month from murder, and returned to the village after 26-27 days. Prior to one day from the murder, Maikoo told him that Virendra Singh returned to Parsauli from Gaya. Next day he visited Parsauli and on the same day murder of Suresh Singh took place. Rakesh Singh also told him that Virendra Singh returned from ''Gaya' in addition to Maikoo. I reached Parsauli on the residence of my Samdhi. I visited Purva from Parsauli on foot which is about six ''farlang' from Parsauli. After the death of Virendra Singh, Rakesh Singh is doing ''Pairvi' of the litigation. After the murder of Suresh Singh his wife went with Ashok Singh with one son. When I, Suresh and Virendra Singh were going, assailants came from my left side and they fired on the Suresh from field of ''Jwar'. I heard eight fire in one time and two fire later on. Assailants hide themselves in the field of ''Jwar'. Deceased fell in the water. Mud and water covered his whole body. I have seen the injuries of the deceased. One entry wound in right ear and exit wound in left parital. Second fire was in the left side of the abdomen and back. After incident I, Jatrem and Virendra Singh went to the house of Virendra Singh Parsauli. None was present near the dead body. Rakesh Singh has made phone to the police station at about 8:00 p.m. and about 9:00 p.m. police came to Parsauli. It is wrong to say that Ramjeet, Makrand and Rishikesh had not committed the murder of Suresh Singh on the said place and time. It is wrong to say that I have not seen the occurrence.

It is submitted by defence that witness PW-4 was a chance witness. It is true that witness PW-4 is Samdhi of PW-1 but the occasion for coming of the witness at the home of the complainant is natural as after visiting ''Gaya', relatives generally come to meet the person who visited ''Gaya'. In this connection presence of the witness on the place of occurrence is quite natural. Witness has given very natural evidence and he has seen the place of occurrence. He has no enemity with the accused. He had no reason to give false evidence against the accused. He is neither interested nor chance witness. His presence on the place of occurrence is proved by cogent evidence. In the long cross examination there is nothing aganst the witness by which his evidence could not be relied upon.

PW-1 is father of the deceased and complainant. His presence on the spot is also proved by cogent evidence. Presence of PW-4 is also proved on spot at the time of occurrence.

Learned A.G.A. placed reliance on the following decision in the case of related witness:-

In Mohd. Rojali Ali and others vs. State of Assam (2019) 19 SCC 567, the Court held that :

"A related witness cannot be said to be an interested witness merely by virtue of being a relative of the victim, a witness may be called interested only when he or she drags some benefit from result of litigation which is in the context of a criminal case would mean that witness has a direct or indirect interest in seeing accused punished due to prior enmity or other reasons and thus has a motive to falsely implicate the accused."

In Laltu Ghosh Vs. State of West Bengal (2019) 15 Supreme Court Cases 344, the Court held that :

"Related witness cannot be said to be an interested witness merely by virtue of being the relative of the victim. The scrutiny of evidence of related witness should be more caution."

Both witnesses were present on the spot. There is no evidence to disbelieve the evidence of PW-1 & PW-4 eye witnesses. Their evidence are supported by medical evidence. There is no other injury on the body of the deceased except firearm injuries. Thus ocular evidence is supported by medical evidence. PW-1 & PW-4 are fully reliable and credible witnesses. They have no enmity with the accused and there is no ground to implicate them falsely. The submission of defence that witnesses are related one is not tenable.

Injuries were inflicted by the accused on vital part of the deceased in furtherence of common intention of all the accused. After committing the gruesome incident, accused fled away from the seen of occurrence. In furtherence of common intention they hide themselves in the crop of ''Jwar' with firearm and committed joint attack on the deceased and fled away from the scene of occurrence. It proves the common intention of the accused. In furtherence of common intention accused inflicted firearm injuries on the deceased jointly which is the cause of death of Suresh.

It is also submitted by learned counsel for defence that dead body of the deceased was carried from the place of occurrence to Ramleela ground, Baberu and thereafter it was taken to police station Baberu and thereafter to Banda for postmortem. This fact was told by PW-4 in this cross examination that dead body was brought to Ramleela ground Baberu, on a tractor. Sister of Suresh came there and began weeping after seeing the dead body at about 10:30 to 11:00 p.m. Later on, police carried the dead body to police station and in the morning at 7:00 a.m. dead body was carried to Banda by the same tractor.

In the cross examination of PW-1, there is no such evidence or suggestion made by the defence. There is also no question put forth to PW-6 in cross examination. Inquest report was made by PW-7 S.I. Raj Deo Singh who had prepared ''Panchnama' from 7:00 a.m. to 9:00 a.m. in which the position of the dead body, position of clothes and injuries on the body have been stated. Suggestion was made before this witness that dead body was carried to Baberu and thereafter to police station which was denied by the witness. PW-10 S.I. Jai Shankar Pandey has also stated in the cross examination that there was disturbance at the place of occurrence and force was deployed. He did not come back to the police station on the same day as force was deployed on the spot and near the dead body. I have not picked up the dead body from the place of occurrence ''Panchayatnama' was prepared on the spot and proved by the PW-7.

In the light of the said evidence on record, the contention of learned counsel for appellant that dead body was carried to police station Baberu, Ramleela Maidan at 10:30 -11:00 p.m. and thereafter carried to police station and dead body was kept in the police station through out the night and in the morning at 7:00 a.m. dead body was carried to Banda is not believable and this will not affect the case of prosecution

Learned counsel for the appellants challenged the place of occurrence. Spot map of the case has been prepared by the I.O. PW-10 who has proved this paper and stated that on 07.10.2003 on the pointing of complainant, he visited the spot and prepared the site plan exhibited as Ka-33. On the spot inquest report was also prepared and plain soil and blood stained soil, blood stained ''Chappal' & ''Angochha', three cartridges 315 bore were taken/recovered. Recovery memo were also prepared from the spot. In the cross examination witness has described the location of the dead body and stated that there is public pathway near canal which is in the North & West. I had shown the place from where the accused had fired as word ''A' word ''B' and ''C'. At place ''B' all the accused has fired on the deceased. Distance from ''A' to ''B' is ten steps and ''A' to ''C' six steps. Witnesses from where they saw the incident is shown by word ''E'. ''Puliya' is near to place ''A'. The witnesses have given correct topography of the place of occurrence. Witnesses of fact had also corroborated the evidence of I.O. on the point of site plan. On the basis of credible evidence the submission of defence that site plan is concocted or prepared as an after thought, has no force.

Learned counsel for defence had submitted some contradictions and omissions in statement of the witness PW-1. He has stated in his cross examination that fact of abusing by the accused has not been written in F.I.R. but was told to I.O.; that accused were hidden in the field of Jwar and Arhar is not stated in the F.I.R.; Suresh had received injuries on which place of the body is not told by the witness. At the time of ''Panchaytnama' the cloth of the deceased was wet but at the time of postmortem report it was dry. Accused had fired twice. These contradictions are of minor nature and will not affect the case of prosecution.

The defence taken by the accused is that one Ashok had illicit relationship with the wife of deceased Suresh. She left the house of Suresh after the death of Suresh and went in the company of Ashok. Ashok has enmity with Suresh so Ashok and his companions killed Suresh and threw the body of the deceased on the spot. There is no evidence on record that Ashok had committed murder of the Suresh in presence of eye witnesses. This defence is based on assumption.

Next defence is that accused had purchased the land of uncle of the deceased which was in possession of the deceased and deceased was taking the benefit of the land and due to this enmity complainant has falsely implicated them in this crime. This fact was previously discussed but there is no evidence on record that brother of the complainant had ever made any complaint against the complainant regarding forceful dispossession of land of their shares. Their brother and complainant had not filed any civil suit or complaint against the accused regarding the sale deed which has been executed in 1992, 1997, 1998 & 2002. Complainant has full opportunity to implicate falsely other family members of the accused but has not done so. He named only those persons who are actually involved in the crime. Thus this defence is not reliable and has no force. From the evidence on record it is not shown that eye witnesses had not intervened at the time of incident. This does not create any doubt on the presence of the witnesses on the spot. Every person has its own reactions when the witnesses are seeing the murder of their son and relative by the accused through use of firearm. No prudent man will intervene in such situation. Statement of the witnesses PW-1 & PW-4 completely find support from the medical evidence on record. Witnesses had no previous enmity with the accused persons so as to falsely implicate them in the present case. Nothing has been brought to our notice by which it can be said that these witnesses were not present at the time of the alleged occurrence and they have deposed against the accused persons due to some particular reason. From their corroborated evidence their statements is fully reliable and we hold that the presence of the witnesses at the time of alleged occurrence is proved. It is also proved that the occurrence was committed by all the accused persons at the time, place and in the manner as alleged by these witnesses.

In the present case complainant PW-1 and PW-4 Sughar Singh are the natural witnesses. In long cross examination nothing adverse came out against the prosecution. Both the witnesses who were present on the spot witnessed the occurrence and promptly lodge the F.I.R. There is no ground to discard the evidence of PW-1 & PW-4 eye witnesses. The witnesses are not interested and their testimony is fully reliable.

So far as Section 34 I.P.C. is concerned the act of accused persons were done in furtherence of common intention to kill the deceased Suresh. It is very difficult to note the mental status of a person. Common intention should be gathered by the act and conduct of the accused persons. All the accused persons Makrand Singh, Ramjeet Singh, Ramkaptan and Rishikesh hide themselves in the field of ''Jwar' & ''Arhar' armed with deadly weapons, Tamancha, Rifle and Gun. They jointly began to fire on the deceased, consequently he died on the spot and all the accused persons fled away from the scene of the occurrence after committing the gruesome crime. The act and conduct of the accused persons shows their common intention to kill Suresh Singh. It is a coincidence that the murder of Suresh Singh took place at 6:00 p.m. and the murder of Chandrabali Singh also took place at 6:00 p.m. Thus on the basis of the said act and conduct of the accused persons it is clear that they succeeded in their common intention to kill the deceased Suresh Singh. Every accused participated actively in committing the murder. The shortcoming in the investigation shown by the defence will not affect the case of the prosecution.

Thus in view of the above discussion we come to the conclusion that from the fully reliable evidence of PW-1 Virendra Singh and PW-4 Sughar Singh the prosecution has been able to prove its case beyond all reasonable doubts. The accused Makrand Singh, Ramjeet Singh, Ramkaptan and Rishikesh had committed the murder of Suresh Singh at the time, place and in the manner as alleged by the prosecution and the charge under Section 302/34 of the Indian Penal Code is very well proved beyond all reasonable doubts against all of them.

So far as the crime under Section 25/27 Arms Act against Makrand Singh, Section 25 Arms Act against Ramjeet Singh and Rishikesh is concerned, it is submitted by the defence that recovery made by the prosecution is false and fabricated. From the evidence on record it is apparent that on 09.10.2003 a factory made rifle 315 bore with three live cartridges 315 bore were recovered from the possession of Ramjeet and one Tamancha 315 bore and two live cartridges 315 bore has been recovered from the possession of Rishikesh. The recovery memo has been prepared by PW-7. There was no public witness at the time of recovery. All witnesses were police personnal. On 23.10.2003 one SBBL Gun, two live cartridges were recovered from Makrand Singh, 12 Kms. away from Parsauli. Recovery memo was prepared in the light of torch and jeep. At the time of recovery no public witness was present; all the witnesses were police personnel. The reason shown in the recovery memo is that due to terror and fear of the accused and it being a lonely area no body was ready/available to witness the recovery. There is no weapon recovered from the custody of Ramkaptan. It is also alleged that recovery weapons were not send for ballistic expert. Generally it is natural conduct of criminal that after committing, he hides or throws the weapon of crime to finish the evidence against him. It is not expected that he will carry the weapon of crime which was a factory made rifle and tamancha along with live cartridges after two days of the occurrence. Makrand Singh was arrested on 23.10.2003 that is about 15 days after the incident with SBBL Gun alleged to be used in the crime, which is again not practically possible and believable. In such recoveries independent witnesses are required. In absence of public witness recovery of the weapons and cartridges from the accused is not believable. After arrest accused told that these weapons were used in the murder of Suresh Singh. Such sort of disclosure statements are not admissible in evidence. Trial courts reasoning for believing the evidence of witnesses that police personnel are not interested witnesses; they had no enmity with the accused, is not tenable in the present circumstances.

During trial, from the evidence of PW-7 it is evident that only factory made rife, three cartridges have been produced before the court which was recovered from Ramjeet on 09.10.2003. Country made tamancha and two live cartridges recovered from Rishikesh has not been produced before court. SBBL Gun, two cartridges alleged to be recovered from Makrand Singh were also not produced before the trial court by the prosecution. PW-8 is also the police personnel witness of recovery, he also stated in his statement that alleged rifle, tamancha, cartridges has not been produced before the court. Gun and cartridges recovered from Makrand Singh has also not produced before the witness in the court. So the fact that Tamancha and two cartridges were recovered from the Rishikesh and SBBL Gun and two cartridges recovered from Makrand could not be believed. These weapons of the murder have also not been produced by the I.O. PW-10 in court. Thus it cannot be said that the said weapons were in working condition. I.O. of the crime under Section 25 Arms Act is junior to the I.O. of the main case. In such situation fair investigation of Section 25 Arms Act is not possible by junior officer of the same police station. Independent witness has also not been produced regarding search and recovery. Section 100(4) Cr.P.C. lays down that:-

"Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do."

The provision under Section 100(4) Cr.P.C. is not complied with in this case by the recovery officer. Conviction on the basis of statements of two police officials alone is not sustainable, as held in Sans Pal Singh Vs. Delhi reported in 1998 SCC Criminal 641. Charge under Section 25/27, 25Arms Act is not proved beyond reasonable doubt.

On the basis of above discussion we are of the view that the conviction under Sections 25/27 Arms Act and 25 Arms Act is manifestly erroneous and illegal. So the conviction of Makrand Singh under Section 25/27 Arms Act, Rishikesh under Section 25 Arms Act, Ramjeet under Section 25 Arms Act is set aside.

On page 15 and 21 of the impugned judgment, month of June has been typed inadvertently which should be read as month of October because the incident took place on 06.10.2003.

Conviction and sentence of accused Makrand Singh, Ramjeet Singh, Rishikesh under Section 25 Arms Act, two year rigorous imprisonment and Rs. 1000/- fine each, in default thereof to undergo two months additional rigorous imprisonment is hereby set aside. The appeal under Section 25 Arms Act is accordingly allowed.

On the basis of above discussion, we are of the view that judgment and order of the trial court dated 27.07.2006 passed by Additional Sessions Judge/F.T.C. 2nd Court No. 7, Banda in Session Trial No. 86/2004 arising out of Case Crime No. 198/2003, Police Station- Baberu, District- Banda convicting and sentencing the appellant to go rigorous life imprisonment under Section 302/34 I.P.C. with a fine of Rs. 5000/- each in default thereof to undergo six month additional rigorous imprisonment by each is hereby confirmed.

During appeal appellants Makrand Singh, Ramjeet Singh, Ramkaptan and Rishikesh remained in judicial custody, accused are directed to serve out the remaining period of sentence.

The appeal under Section 302/34 I.P.C. is devoid of merits and dismissed accordingly.

(Om Prakash Tripathi,J.) (Manoj Kumar Gupta,J.)

Order Date :- 07.01.2022

Sharad/-