Allahabad High Court
Virendra And Others vs State Of U.P. on 21 September, 2023
Bench: Manoj Kumar Gupta, Prashant Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2023:AHC:182602-DB
Reserved on : 8.8.2023
Delivered on : 21.9.2023
Court No. - 21
(1) Case :- CRIMINAL APPEAL No. - 3563 of 2004
Appellant :- Virendra and others
Respondent :- State of U.P.
Counsel for Appellant :- Amit Kumar Gaur
Counsel for Respondent :- Govt. Advocate, Kripa Kant Pandey
WITH
(2) Case :- CRIMINAL APPEAL No. - 2818 of 2004
Appellant :- Subhash And Others
Respondent :- State of U.P.
Counsel for Appellant :- Amit Kumar Gaur,Arvind Kumar Singh,Neeharika Singh
Counsel for Respondent :- Govt. Advocate,K.D.Tiwari
WITH
(3) Case :- CRIMINAL APPEAL No. - 3073 of 2004
Appellant :- Satya Veer
Respondent :- State of U.P.
Counsel for Appellant :- T.S. Dabas,Amit Kumar Gaur
Counsel for Respondent :- Govt. Advocate
AND
(4) Case :- GOVERNMENT APPEAL No. - 4457 of 2004
Appellant :- State Of U.P
Respondent :- Surendra And Others.
Counsel for Appellant :- Govt. Advocate,B.K.Singh Raghubanshi,Pradeep Kumar Bhargava
Counsel for Respondent :- Ajay Kumar Pathak,Murlidhar Mishra,P.K.Bhardwaj
Hon'ble Manoj Kumar Gupta,J.
Hon'ble Prashant Kumar,J.
(Delivered by Hon'ble Prashant Kumar, J)
1. All the aforesaid appeals have been filed against impugned judgment and order dated 20.5.2004, hence, the same are being heard together and decided by a common judgment.
2. Heard Sri Santosh Kumar Singh, Advocate holding brief of Sri Arvind Kumar Singh and Sri Amit Kumar Gaur, learned counsel for the appellants, Sri L.D. Rajbhar, learned Additional Government Advocate for the State and Sri Kripa Kant Pandey, learned counsel for the informant.
3. At the time of commencing the argument, Sri Amit Kumar Gaur, learned counsel for the appellants prayed for dismissal of Criminal Appeal No.3073 of 2004 as withdrawn as appeal on behalf of the sole appellant Satbir, is already before this Court being Criminal Appeal No.3563 of 2004, wherein he is appellant no.4.
4. The prayer so made is allowed and Criminal Appeal No.3073 of 2004 is dismissed as withdrawn, as Satbir is already an appellant in pending Criminal Appeal No.3563 of 2004.
5. These criminal appeals have been filed against a common judgment and order dated 20.05.2004 passed by the Sessions Court, Bulandshahr in Sessions Trial No. 1898 of 1999 (State Vs. Virendra and others) whereby the learned Sessions Court was pleased to convict Virendra, Kiranpal, Jugendra, Satbir, Subhash, Sheoraj, Vijaypal, Sheeshpal, Chandrapal and Prthivi under Section 148, 302/149 of Indian Penal Code, 1860 (hereinafter for the sake of brevity has been referred to as 'IPC'), Police Station Ahmadgarh, District Bulandshahr and awarded life imprisonment with one year rigorous imprisonment. The Government Appeal has been preferred by the State against acquittal of the few accused under the Arms Act.
6. The case of the prosecution is that two connected incidents happened at two different places, wherein three persons lost their lives. As per prosecution, the first incident took place on 23.08.1999, when one Satendra Singh alongwith Ranvir Singh was going to Debai from his village. When they reached the tubewell, they saw accused Virendra armed with double barrel gun, Kiranpal, Sheeshpal and Jugendra carrying tamancha (country made pistol), sitting together under the peepal tree with Sonu and Monu, sons of Rambhul. At that time, Rambhul and his brother Vimal, both sons of Ram Prasad, were coming from Debai on their bullet motorcycle. Vimal had .315 bore rifle in his hand, which belonged to his brother Munendra. When they saw Sonu and Monu, who were sitting under the peepal tree, they stopped. At that point of time, accused Kiranpal challenged and kicked his motorcycle down. At that point of time, accused Vijaypal, Sheoraj, Satbir, Prithvi, Subhash, Jagpal, Chandrapal came out from the adjoining maize field having country made pistol in their hands. Virendra, Jugendra, Kiranpal and Satbir in order to kill Rambhul and Vimal fired on them with their weapons. In the assault, both Rambhul and Vimal got injured and fell down. Rambhul died on the spot, and Vimal succumbed to the injuries later on.
7. The second incident, happened after few minutes, at a different place, where the accused after shooting Rambhul and Vimal, snatched rifle and the motorcycle of deceased Rambhul, and started firing indiscriminately to create atmosphere of fear and proceeded towards the village. When they entered the village, they kept on firing indiscriminately. When they reached the house of Vijaypal, they found Ram Prasad father of Rambhul. At that point of time, accused Virendra, Jugendra, Kiranpal and Satbir fired on him with intention to kill. Ram Prasad was shot and died on the spot. Because of the fear created due to firing, everybody in the village went hiding into their shelters. This second incident was witnessed by Rajkumar, Udaivir, Mahendra, Balbir and Dinesh very closely.
8. In the first incident, Rambhul died on the spot, whereas in the second incident Ram Prasad died on the spot and Vimal was taken to the hospital, where he succumbed to the injuries later on.
9. The written report of the incident was lodged by informant Satendra Singh, which was written by one Mahipal Singh in the Ahmedgarh Police Station on 23.08.1999 at 3.45 P.M.
10. On basis of this report, Case Crime No. 136 of 1999 was registered under Sections 147, 148, 149, 307, 302, 341, 404 IPC read with Section 25 of the Arms Act against the accused persons.
11. The Investigating Officer (in short 'I.O.'), who has been examined as PW-10, reached at the place of incident and took over the body of deceased Rambhul and Ram Prasad. They sealed the body and sent for panchnama and then sent it for post mortem. The I.O. visited the place of incident and after investigation made a map of the place of occurrence. He had recorded statement of witnesses under Section 161 Cr.P.C. The body of deceased Vimal was also taken into possession and sent for post mortem examination.
12. Post mortem examination of deceased Ram Prasad was conducted on 24.8.1999 at 3.40 P.M. by Dr. B.K. Gaur and following ante-mortem injuries were found on his dead body:-
(i) Gun shot wound of entry 2 cm x 2 cm x abdomen cavity deep, back of upper part of right hip at the junction of lower part of back 12 cm above hip perineum, margins inverted.
(ii) Gun shot wound of exit 2 cm x 2 cm x abdomen cavity deep front of right side abdomen 3 cm below costal margin a 3 cm piece of omentum coming out of the wound it is communicating with Injury no.(i).
(iii) Gun shot wound of entry 2 cm x 2 cm back and middle of right thigh muscle to bone deep, shaft of femur bone is fractured.
(iv) Gun short wound of exit 5 cm x 5 cm x bone to muscle deep, Right thigh upper part communicating with Injury no.(iii).
(v) Gun shot wound of entry 2 cm x 2 cm x brain (skull) cavity deep back of Lt. Side head 5 cm. behind left ear.
13. Post mortem examination of deceased Rambhul was conducted on 24.8.1999 at 4.15 P.M. by Dr. B.K. Gaur. He found the following ante-mortem injuries on his dead body:-
(i) Gun shot wound of entry 2 cm. x 2 cm. x muscle deep right side face, 1 cm. in front of right ear, margins inverted and communicating with Injury no.(ii).
(ii) Gun shot wound of exit 8 cm. x 6 cm. x muscle to bone deep, Left side face, fracture of underlying maxilla & mandible is seen.
(iii) Gun shot wound of entry 2 cm. x 2 cm. x muscle deep, 1 cm. Right to midline, margins inverted.
(iv) Gun shot wound of exit 3 cm. x 2.5 cm. x muscle deep lower part of right side of back of neck 8 cm. below hairline communicating with Injury no.(iii).
(v) Incised wound 5 cm x 2 cm, x muscle deep right side face over angle of mandible, placed horizontally.
(vi) Incised wound 4 cm x 2 cm. x muscle deep right side face 1 cm. below right eye.
(vii) Gun shot wound of entry 1.5 cm x 1.5 cm x muscle deep uppermost part of left thigh in middle, margin inverted and contused 5 cm all around.
(viii) Gun shot wound of exit 2.5 cm x 2.5 cm. x muscle deep middle of left thigh, communicating to Injury no.(vii).
14. Vimal was taken to the hospital and died later on during his treatment. His post mortem examination was conducted on 24.8.1999 at 5 P.M. by Dr. S.K. Gupta. According to him following ante mortem injuries were found on his dead body :
(i) A Gun shot wound 1.5 cm x 1 cm mid part of forehead 3 cm above root of nose. Blackening and burning present, edges everted clotted blood present. Wound of entry, On dissection one bullet recovered, from frontal part of skull, membrane lacerated, brain lacerated.
(ii) Wound of entry, a Gun shot wound, size 2 cm x 1 cm, left parietal region 8 cm. above left ear, Burning and blackening skin present, edges inverted. On dissection one bullet recovered. Skull bone fractured, brain cavity full of blood.
(iii) Lacerated wound 4 cm x 2.5 cm, bone deep left mastoid region.
(iv) Wound of entry size 2.5 cm x 1 cm medial aspect of left forearm 5 cm below left elbow communicating with wound of exit size 6 cm. x 3.5 cm. x outer dorsal aspect left forearm 3 cm. above back of left wrist, edges everted, six pellets (Chharra) recovered from wound.
(v) Multiple Gun shot wound size 0.2 cm x 0.2 cm in an area of 25cm x 8 cm outer aspect of right upper forearm Rt. (Chharra)."
15. On 25.8.1999 at around 1.10 P.M., the I.O. got information from an informer that accused of the aforesaid case were sitting with weapons near the temple of Satwara village. Upon this information, the police party reached there, the accused fired at them and the police personnel somehow managed to save their lives. Thereafter, they arrested accused Vijaypal, Kiranpal and one Devendra. One looted rifle (snatched from deceased) was recovered from accused Vijaypal whereas country made pistol with cartridge was recovered from accused Kiranpal. The recovered weapons were sealed in separate clothes and sent to the police station after preparing its recovery memo.
16. Thereafter, accused Jagpal took the police personnel to the house of Virendra. There on his identification, a country made pistol of .312 bore was recovered. This was also sealed and sent to the police station.
17. PW-10 submits that on 4.9.1999 accused Virendra and Sheeshpal were taken on remand. Accused took them to village-Chimavali. Accused Sheeshpal came to his house and a country made pistol of 315 bore was recovered from the hay stock from his house. The same was properly sealed and taken in custody.
18. The police personnel went with Virendra in search of weapon and Virendra took out a knife from the hay stock and confessed that he has used this knife for murder of deceased. This knife was also seized and sent to the police station.
19. PW-10 further submitted that on 28.9.1999 remand of accused Satbir was taken. When accused reached on the southern side of his hut after removing some mud a country made pistol of .315 bore was recovered and he confessed that the same was the weapon used for murder. The weapon so seized was sealed and sent to the police station.
20. On 2.9.1999, the I.O. claimed that he had gone looking for the accused. At around 1.20 P.M., Navbahar was taken into custody on the road from Muradpur to Cold Storage, Ahmedgarh. On being interrogated, a knife was recovered from Naubahar, which was used for murder of the deceased. This knife was recovered from the northern side of house of Virendra in the hay stock. The knife had mud and blood stains which was sealed and sent to police station.
21. On 3.9.1999, the I.O. claimed that he had got information from some of the informant that accused Surendra, Jugendra and Jagpal were sitting on liquor vend. Accordingly, he went there and at around 1.00 P.M., he took them into custody. On being interrogated, both Surendra and Jagpal agreed to surrender the weapons which they have used for the murder. Both of them took the I.O. to the house of Virendra where country made pistol of .312 bore was recovered buried under the ground. Both confessed that the weapon was used for commission of murder. These weapons were seized and sent to the police station.
22. The recoveries made by the I.O. from the accused persons are as under :-
S.No.
Name of accused
Age of accused at the time of incident
Weapon used
Recovery
Charge framed
1.
Virendra
41 years
Double barrel gun
knife
under Section 148/302/149, 394 IPC, in option under Section 404 and 302/149 IPC, under Section 4/25 Indian Arms Act
Kiranpal
50 years
Country made pistol 312 bore
Country made pistol
under Section 148/302/149, 394 IPC, in option under Section 404 and 302/149 IPC
Jugendra
38 years
Country made pistol 315 bore
under Section 148/302/149, 394 IPC, in option under Section 404 and 302/149 IPC, under Section 341 IPC, under Section 25 of Indian Arms Act
Satbir
58 years
Country made pistol 315 bore
under Section 148/302/149, 394 IPC, in option under Section 404 and 302/149 IPC, under Section 25 of Indian Arms Act
Vijaypal
68 years
Looted rifle 315 bore
under Section 148/302/149, 394 IPC, in option under Section 404 and 302/149 IPC
Chandrapal
63 years
No recovery
under Section 148/302/149, 394 IPC, in option under Section 404 and 302/149 IPC
Sheoraj
78 years
No recovery
under Section 148/302/149, 394 IPC, in option under Section 404 and 302/149 IPC
Surendra
28 years
1 tamancha, 2 live cartridges, 1 blocked cartridges
under Section 148/302/149,394 IPC in option under Section 404 and 302/149 IPC
Navbahar
32 years
knife
under Section 148/302/149, 394 IPC, in option under Section 404 and 302/149 IPC, under Section 4/25 Indian Arms Act
Sheeshpal
48 years
Country made pistol 303 bore
under Section 148/302/149, 394 IPC, in option under Section 404 and 302/149 IPC, under Section 341 IPC, under Section 25 of Indian Arms Act
Subhash
28 years
No recovery
under Section 148/302/149, 394 IPC, in option under Section 404 and 302/149 IPC
Prithvi
74 years
No recovery
under Section 148/302/149, 394 IPC, in option under Section 404 and 302/149 IPC
Jagpal
Recovery of 315 bore country made pistol
under Section 148/302/149, 394 IPC, in option under Section 404 and 302/149 IPC
23. The I.O., after completion of investigation, submitted separate charge-sheet against the accused persons, Virendra, Vijay Pal, Kiranpal, Sheeshpal, Jugendra, Jagpal, Satbir, Chandrapal, Subhash, Prithvi, Sheoraj, Navbahar and Surendra for the offences under Section 147, 148, 149, 302, 404, 341 IPC; against the accused Virendra, under Section 4/25 of the Indian Arms Act; against the accused Sheeshpal, under Section 25 of the Indian Arms Act; against the accused Navbahar, under Section 4/25 of the Indian Arms Act; against the accused Jugendra, under Section 25 of the Indian Arms Act; and has submitted the charge-sheet against the accused Satveer for the offence under Section 25 of the Indian Arms Act, along with map of the place and details of the weapons seized.
24. The accused denied the charges and said that they have wrongly been implicated because of enmity.
25. On 21.12.1999, the learned Chief Judicial Magistrate with regard to all the accused persons in relation to the Crime No. 136/99 under Section 147,148, 149, 307, 302, 404, 341 IPC, has found that this case is fit to be tried by a Sessions Court. So, he committed this case to this court, which has been registered as Sessions Trial No. 1898/99, State Vs Virendra Singh under Section 147, 148, 149, 302, 404, 341 IPC.
26. On 21.12.1999, the learned Chief Judicial Magistrate, Bulandshehar in relation to Crime No. 159/99, State Vs Navbahar has found that as the main case of crime, Crime No. 136/99, has been committed to the Sessions Court, so he committed this case to Sessions Court, which has been registered with the Police Station - Ahmadgarh as ST No. 1894/99, State Vs Navbahar under Section 4/25 of the Indian Arms Act.
27. The learned Chief Judicial Magistrate vide his order dated 21.121999 in relation to the Crime No. 166/99, State Vs Virendra under Section 4/25 of the Indian Arms Act, has determined that as the case of main crime, Crime No. 136/99, has been committed to the Sessions Court, so he handed over this case to the Sessions Court, which has been registered with Police Station - Ahmadgarh as ST No. 1894/99, State Vs Virendra under Section 4/25 of the Indian Arms Act.
28. The learned Chief Judicial Magistrate vide his order dated 21.121999 in relation to the Crime No. 160/99, has found that as the main case of crime, Crime No. 136/99, has been committed to the Sessions Court, so he committed this case to the Sessions Court, which has been registered with Police Station - Ahmadgarh as ST No. 1896/99, State Vs Jugendra Singh under Section 25 of the Indian Arms Act.
29. The learned Chief Judicial Magistrate has found in his order dated 21.12.1999 that the main Crime No. 136/99 has been committed to Sessions Court, that's why he also committed the Crime No. 183/1999 to Sessions Court, which got registered as Sessions Trial No. 1897/99, State Vs Satvir under Section 25 of the Indian Arms Act at PS- Ahmadgarh.
30. The learned Chief Judicial Magistrate, Bulandshahar has found in his order dated 12.01.2000 that the case of Crime No. 165/99 is related with Crime No. 136/99, which has been committed to Sessions Court. Thus, he committed this case to Sessions Court, which got registered as Sessions Trial No. 72/2000, State Vs Sheeshpal under Section 25 of the Indian Arms Act at PS- Ahmadgarh.
31. The Court below by order dated 23.02.2000 framed charges for the offence under Section 341 IPC in Sessions Trial No. 1898/99 against Sheeshpal and Jugendra and framed charges for the offences under Section 148/302/149, 394 IPC, in option under Section 404 and 302/149 IPC against the accused persons, Virendra, Kiranpal, Jugendra, Satbir, Subhash, Sheoraj, Navbahar, Vijaypal, Sheeshpal, Jagpal, Chandrapal, Prithvi and Suresh and the accused persons pleaded not guilty and sought trial.
32. In Sessions Trial No. 1894/99, vide order dated 23.2.2000, State Vs Navbahar, framed charges for offence under Section 4/25 of the Indian Arms Act against the accused Navbahar, which the accused Navbahar pleaded not guilty and sought trial.
33. By order dated 23.2.2000, in the Sessions Trial No. 1895/99, State Vs Virendra, framed charges for offence under Section 4/25 of the Indian Arms Act against the accused Virendra, which the accused Virendra pleaded not guilty and sought trial.
34. By order dated 23.02.2000, in the Sessions Trial No. 1896/99, State Vs Jugendra, framed charges for offence under Section 25 of the Indian Arms Act against the accused Jugendra, which the accused Jugendra pleaded not guilty and sought trial.
35. By order dated 23.02.2000, in the Sessions Trial No. 1897/99, State Vs Satvir, framed charges for the offence under Section 25 of the Indian Arms Act against the accused Satvir, which the accused Satvir pleaded not guilty and sought trial.
36. By order dated 23.02.2000, in the Sessions Trial No. 72/2000, State Vs Sheeshpal, framed charges for the offence under Section 25 of the Indian Arms Act against the accused Sheeshpal, which the accused Sheeshpal pleaded not guilty and sought trial.
37. The incident of murder of Rambhul and Vimal and Ram Prasad can be divided in two parts. Part-1 where Rambhul and Vimal were murdered near the temple and Part-2 murder of Ram Prasad in the village. As per F.I.R. version, in Part I the accused can be further segregated in two groups. In Group 'A', there were four people who stopped Rambhul and Vimal, pushed their bike, snatched rifle and shot at them. The accused in Group 'A' are as follows:-
S.
No.
Name
Age on the date of incident
Relationship
Weapon used as per FIR
Weapon seized
Role assigned in the FIR
1.
Virendra
41 years
son of Vijaypal
Double barrel gun
knife
shot Rambhul, Vimal and Ram Prasad
2.
Kiranpal
50 years
son of Sheoraj
Country made pistol .312 bore
Country made pistol
shot Rambhul, Vimal and Ram Prasad
3.
Sheeshpal
48 years
son of Sheoraj
Country made pistol
shot Rambhul, Vimal and Ram Prasad
4.
Jugendra
38 years
son of Shanker
Country made pistol .315 bore
shot Rambhul, Vimal and Ram Prasad
38. In this group Sheeshpal is not said to have fired on the deceased Rambhul and Vimal. However, in the F.I.R. it is stated that instead of Sheeshpal it was Satbir who had shot these people. No role has been assigned to accused Sheeshpal in the F.I.R.
39. Group 'B' are of these accused who as per the prosecution story, were hiding in the maize field close to the place of incident. These people classified in Group 'B' were:-
S.
No.
Name
Age on the date of incident
Relationship
Weapon used as per FIR
Weapon seized
Role assigned in the FIR
1.
Vijaypal
68 years
Father of Virendra
tamancha
rifle
Gone and shot Ram Prasad
2.
Sheoraj
78 years
Brother of Vijaypal
3.
Satbir
58 years
Co-brother-in-law of Vijaypal
Tamancha 315 bore
4.
Prithvi
74 years
Brother of Vijaypal
tamancha
5.
Subhash
28 years
Son of Prithvi
No recovery
6.
Jagpal
Cousin of Vijaypal
Tamancha 315 bore
7.
Chandrapal
Brother of Vijaypal
Tamancha
40. During the trial the prosecution in order to prove their case came out with the following prosecution witnesses:
PW-1 Satendra Singh
Eye witness
Grandson of deceased Ram Prasad
PW-2 Dinesh
Related witness
Brother of deceased Rambhula and Vimal and son of Ram Prasad
PW-3 Sonu
Eye witness
Son of deceased Rambhul
PW-4 Dr. B.K. Gaur
Formal witness
Conducted post mortem of deceased Rambhul and Ram Prasad
PW-5 Dr. S.K. Gupta
Formal witness
Conducted post mortem of deceased
PW-6 Nawab Singh
Chance witness
Witness of recovery of arms
PW-7 Kalyan Singh
Related witness
Witness of recovery of arms
PW-8 Rohtash Tyagi
Formal witness
Brother dead body of Rambhul and Ram Prasad to the morturary
PW-9 Dr. Vinod Kumar Payal
Formal witness
Prepared Panchnama of deceased Vimal
PW-10 Harishankar Singh
Formal witness
I.O.
PW-11 Hasmat Khan
Formal witness
Witness of recovery of arms of Sheeshpal and Virendra
PW-12 Jabar Singh
Formal witness
Witness of recovery of arms of Naubahar, Jagpal and Satbir
PW-13 Chandrapal Singh
Formal witness
Sent exhibits to the forensic laboratory
41. On behalf of defence following witnesses gave their evidence in the Court:
1. DW-1 Indrajeet Singh, S.O.
2. DW-2 Sonpal
3. DW-3 Suresh Kumar
4. DW-4 Smt. Gyanendri
5. DW-5 Om Prakash
6. DW-6 Ravindra Singh
42. Heard the counsel for the appellant and the counsel for the State and also perused the materials on record.
43. Counsel for the appellants argued that the FIR was ante timed. In support of his argument he submitted that inquest proceedings were completed prior to the registration of the FIR. It is alleged that the in said FIR the names of Surendra and Navbahar were mentioned while there were not named in the complaint. The scribe of the complaint was related and stays 3-4 km away. It was when he came, then the FIR was lodged. In fact, the inquest of Rambhul Exhibit Ka 20 and Exhibit Ka 27 there is no mention about the registration of the FIR. Counsel for the appellants then submitted that the prosecution witnesses are interested witnesses, hence, there trustworthiness and credibility is doubtful. The credibility of the witnesses should be tested in the light of collateral surrounding circumstances as well as probability with other facts which have been brought on record.
44. Counsel for the appellant argued that a broad day light incident is alleged by the prosecution in presence of the entire village and it is very hard to believe that no independent witness is available for evidence.
45. He further argued that there is improvement and ommission in PW-1's statement. He had initially stated for the second incident that the shot was fired by Virendra, Jugendra, Satbir, Sheeshpal and Vijay Pal, and Ram Prasad fell down and all of these five people hit him whereas in the FIR only name of four people Virendra, Jugendra, Satbir and Kiranpal has been given. He further submits that PW-1 in his statement further submits that FIR does not mention stabbing done by Virendra to Rambhul.
46. He further stated that there are substantial improvement in evidence of PW2 and PW3. The testimony of eye witness is not supported by the medical evidence. PW-1 stated that five people had fired at Ram Prasad by which he got injured but there were only three entry wounds. This statement is contrary to the medical record. He further states that as per PW-2 and PW-3 all 13 accused have fired at Ram Prasad from front side but there were only three injuries.
47. As per PW-3, accused had shot Vimal and Rambhul from a distance of about 4-5 feet but as per medical report, injury was from point blank distance as there was tattooing, this further goes to prove that the evidence of PW-3 cannot be relied upon.
48. As far as the recovery of arms is concerned, the entire prosecution story of recovery of arms is a concocted story. There were no actual recovery and the story made by the prosecution is absolutely baseless, untrustworthy and unreliable. In fact, during the trial the Court below has also found that the arms were planted and the accused Navbahar, Jugendra, Sheeshpal, Virendra and Satbir were acquitted. He submitted that the prosecution throughout had been trying to frame the case by planting weapons, which the Court below has already found to be incorrect and lack of proper evidence.
49. FIR is doubtful because the recovery memo has been prepared on the same day in which these words were mentioned "vs. Vijaypal and others" while the case is registered against "Virendra and others".
50. No motive has been shown in the FIR. The motive has been developed in the evidence as it has been alleged in the FIR, in the first incident four people Virendra, Jugendra, Satbir and Kiranpal said to have shot whereas as per the medical evidence, this story does not get corroborated. In the FIR, there is no mention about assault by knife and danda and they have also tried to improve story of the alleged incident.
51. The I.O. without properly investigating the incident had submitted charge-sheet cursorily. Chargesheet against Virendra and Sheeshpal was submitted on 14.9.1999 whereas site plan was prepared on 21.9.1999.
52. Per contra, learned Additional Government Advocate and learned counsel for the informant have submitted that the prosecution story is consistent and there is no material contradiction. There is no delay in lodging the FIR. It is not ante timed. Evidence of prosecution witnesses is reliable and trustworthy. Ocular evidence is fully supported by medical evidence. There is no illegality, infirmity or perversity in impugned judgment and order, hence, these appeals are liable to be dismissed.
53. We have considered rival submissions of learned counsel for parties and have gone through the entire record.
54. As per evidence of PW-1 (Satendra Singh) Vijaypal had fired at Ram Prasad with a rifle which was snatched from the deceased. In addition to it, Virendra, Jugendra, Kiranpal and Satbir have also fired on the deceased Ram Prasad with an intention to kill him. In this statement, he made it clear that five people have fired using firearm (rifle and country made pistols of 315 and 303 bore). The medical evidence shows that there were three gun shot wounds of 2 cm X 2 cm on the back of the right hip. At best it can be said that three people have fired. Assuming five persons have fired, the prosecution could not explain where were the cartridges. Since there is no recovery of the said cartridges, hence the prosecution story of five persons firing appears to be doubtful. Their names have illegally been dragged in with the sole intention of implicating the entire family.
55. PW-1, Satendra Singh submitted that around a year prior to the incident Harendra son of Vijay Pal was killed. In that incident, Har Kumar and Dharmendra were accused. Pradhan, Rambhul was doing pairvi and got both the accused Har Kumar and Dharmendra enlarged on bail and for this reason, the accused had enmity with Rambhul. In fact, the accused were under the impression that Rambhul had got Harendra killed. The evidence of PW-1 completely corroborates the story of prosecution. He submits that on 23.8.1999 around 2 O'Clock he was going to village Debai along with Ranbir. When he reached near tubewell of Hargyan, he found Sonu and Monu sons of Rambhul, sitting under a Peepal tree. Accused Virendra, Jugendra, Kiranpal and Shashipal were also sitting closeby. Virendra had double barrel gun, Jugendra, Kiranpal and Sheeshpal had country made pistols. At that point of time, Rambhul (Pradhan) along with his brother Vimal, who were coming on a motorcycle, stopped on seeing Sonu and Monu sitting there. Virendra kicked the bike and Kiranpal hit Vimal by stick. He further stated that at the same time, from the adjoining maize field, Chandrapal, Prithvi, Subhash, Sheoraj, Jagpal, Jugendra and Satyavir came out and they all had country made pistols. He further stated that accused Virendra, Jugendra, Kiranpal and Satbir fired upon Rambhul and Vimal to kill them. Accused Navbahar and Virendra attacked Rambhul with knife. Both Rambhul and Vimal fell down injured. Rambhul died on the spot and accused Vijay Pal took Rambul's rifle whereas accused Virendra took the bullet motorcycle. Thereafter, all the accused went away by firing. This incident was seen by PW1 Satendra Singh along with Ranvir, Sonu and Monu. Sonu and Monu ran away home when accused gang reached near Vijay Pal's house at around, 2.15-2.20 P.M. Rambhul's father Ram Prasad, who was informed about the first incident, came out of Rambhul's house and was about to go to the place of first incident, where his sons Rambhul and Vimal were shot. It was there the accused encountered him. At that point of time, accused Vijay Pal ordered to kill him. Accused Vijay Pal who had snatched rifle in his hand and accused Virendra, Jugendra, Kiranpal and Satbir used firearms and fired at Ram Prasad. Ram Prasad got injured because of gun shot and died on the spot. This incident was seen by Satendra Singh, Ranvir Singh, Udaiveer Singh, Dinesh, Ramkumar, Mahendra, Sonu and Monu. PW1 further stated that Dinesh took Vimal for treatment to Aligarh Hospital where he was declared dead. A written complaint of the incident was scribed by Mahipal, who lodged in the Police Station-Ahmadgarh. After registering of the case, police came to the village. The I.O. collected blood stained soil and prepared recovery memo. He also collected two used cartridges from the spot.
56. PW-1 further stated that the distance between Ram Prasad's house and Mahesh's house is 150m. It was in front of Mahesh's house that accused met Ram Prasad. When Ram Prasad was shot at that point of time he was 13 steps away.
57. In his cross-examination, he stated that after the first incident which was happened in front of temple he went behind the accused to the village and then he saw the second incident, which happened in the village. The I.O. had came to the village along with PW-1. The I.O. was there for an hour and thereafter he went to the place where Ram Prasad was killed where he stayed for hour and half. At both the places, the witnesses Ranvir, Rajkumar, Udaiveer, Mahendra, Balbir, Dinesh, Sonu and Monu were present. He further submitted that it took almost 20 minutes to write the report.
58. As per prosecution evidence of Dinesh, PW-2, he was sitting in drawing room of his house at around at 2:00 p.m. at 23.08.1999. When his nephew Sonu and Monu told that the accused Virendra, Vijaypal, Kiranpal, Sheeshpal, Sheoraj, Chandrapal, Prithvi, Subhash, Jugendra, Jagpal, Satyabir and 2-3 other people have killed Rambhul and Vimal. At that time my father Ram Prasad along with Mahendra, Balbir and himself got up and proceeded to the place of incident. While on the way going through the Village, my father was walking ahead of me and he saw accused Virendra, Vijaypal, Kiranpal, Sheeshpal, Sheoraj, Chandrapal, Prithvi, Subhash, Jugendra, Jagpal, Satyabir, Navbahar, Surendra were coming from the front. Vijaypal had a rifle and Virendra had 12 bore gun and rest of the people have armed with country made pistol. Thereafter, all the accused persons fired at my father using rifle, gun and country made pistols. He was shot and fell down. According to this witness, all the 13 accused have fired at deceased Ram Prasad whereas according to PW-1 only four people i.e. Virendra, Jugendra, Kiranpal and Satyabir have fired at Ram Prasad. There is clear contradiction in the statements of PW-1 and PW-2 as to how many people have fired on the deceased Ram Prasad.
59. Moreover, only three gun shot injuries were found on the person of deceased Ram Prasad. According to PW-1, the murder of Ram Prasad was seen by Raj Kumar, Udaivir, Mahendra, Balbir, Dinesh, Sonu and Monu. Out of which, evidence of PW-2 (Dinesh) and PW-3 (Sonu) were taken as eye witness and rest of the people for the best reasons known chose not to give evidence.
60. PW-2 in his examination-in-chief has further stated that when he reached the place to see his brother Rambhul and Vimal, he found Rambhul was dead and Vimal was lying injured, who was taken to Aligarh Hospital for treatment where the doctors declared him found dead.
61. PW-2 in his cross-examination further stated that prior to the incident there was no enmity between the parties. He had never gone to pursue the case. He further stated that when his father Ram Prasad was shot at that time the accused were on the northern side of house of Mahesh. All the accused had fired. His statement was recorded after one month of the incident by the I.O. He had showed the place of incident to the I.O. At the time of incident, PW-2 was student of IXth Class. After the incident he had to stop his studies.
62. PW-3 in his examination-in-chief stated that on 23.8.1999 he along with his brother was coming back from the school to the village and at around 2 O'clock when he reached near tubewell of Hargyan he saw accused. At that point of time, accused Virendra asked PW-3 to sit under the tree. He parked his cycle and sat under the tree. Thereafter, he saw his father and uncle coming on a motorcycle from Debai. The motorcycle was being driven by Rambul who was his father and his uncle Vimal was sitting as a pillion rider on the back side. He had rifle in his hand. When he saw PW-3 and his brother sitting, he stopped the bike. Accused Virendra kicked the motorcycle and Kiranpal hit Vimal with a rod on his head. The motorcycle fell down. According to PW-3 at that point of time, from the maize field around, accused Vijay Pal, Sheoraj, Prithvi, Chandra Pal, Subhash, Jagpal, Satbir, Surendra, Navbahar came out. All of them had country made pistols. Accused Virendra, Jugendra, Kiranpal and Satbir fired on Rambhul and Vimal. Other accused also fired. Accused Virendra and accused Navbahar stabbed the father of PW-3 and because of injuries both Rambhul and Vimal fell down. Virendra picked up the motorcycle and Vijaypal snatched rifle from Vimal. PW-3 and his brother Monu ran away from the place of incident. The brother of PW-3, Satyendra and Rajbir were sitting close to the tubewell near the temple and were watching the incident. He saw his uncle Udaiveer and Rajkumar also coming from Debai. Thereafter, PW-3 reached his house where Ram Prasad, Dinesh, Balbir and Mahendra were sitting. PW-3 narrated the incident to his grandfather. They immediately left for the place of incident. Along with him Dinesh, Balbir and Mahendra also followed PW-3 with his brother Monu. Right in front was his grandfather. When they reached in front of Vijay Pal's house they saw all the accused coming. At that point of time, Vijaypal was having rifle in his hand. Accused Virendra had gun and other accused had country made pistols. Accused Vijaypal said that he had shot the other two persons and now they will kill Ram Prasad. On this, Ram Prasad turned around to run away but Virendra, Kiranpal and Vijaypal shot Ram Prasad. Other accused also fired at him. His grandfather Ram Prasad was shot. Accused ran away from there. This incident was seen by PW-3 along with his brother Monu, Dinesh, Balbir, Mahendra, Udaiveer, Rajkumar, Satyendra and Ranvir. Thereafter, PW-3 went to see his father at the tubewell. His father had died by the time while his uncle Vimal was injured and crying. His uncle Dinesh took him to Aligarh Hospital for treatment. According to this witness, Ram Prasad had died at about 2.30 in the afternoon whereas his father and uncle had been killed at around 2 P.M.
63. PW-3 in his cross-examination stated that when he reached near the tubewell he saw accused Virendra, Jugendra and Shashipal with firearms and accused Kiranpal had danda. The witness in his cross-examination further stated that he and his brother were on cycle and he left the cycle under a tree on the eastern side of the temple. He does not know who is the owner of the maize field. He was made to sit under the peepal tree and then after few minutes his father and uncle came on a motorcycle.
64. PW-4 Dr. B.K. Gaur had conducted post mortem examination of deceased Ram Prasad on 24.8.1999 at around 3.40 P.M. and found the injuries (which have already been mentioned above and are not being reproduced for the sake of brevity). In his examination-in-chief he stated that on examination he found that injury no.(v) temporal bone on the left hand side was broken. Apart from the other injuries, the deceased had a head injury also. According to him death was because of shock and haemorrhage. The injuries caused to deceased were enough to cause his death. He had conduced the post mortem after almost 24 hours of the incident.
65. He had also conducted post mortem of deceased Rambhul on 24.8.1999 at 4.15 P.M. and found eight injuries(which have already been mentioned above and are not being reproduced for the sake of brevity). According to him all the injuries were responsible for his death. The time of injuries was between 2-2.15 PM on 23.8.1999. The reason of the death was shock and haemorrhage. In his cross-examination he stated that injuries (i) and (ii) are caused by one shot fired, as they are entry and exit wounds. Injury no.(iii) and (iv) is caused by another fire and both are entry and exit wounds and injury no.(v) is caused due to third fire. There were 500g semi digested food in the intestine, which shows that he had his food 2-3 hours prior to the incident. So, it can be deduced that the death of this deceased was due to three gun shots.
66. Dr. S.K. Gupta, stated that he had conducted post mortem of Vimal on 24.8.1999 at 5 P.M. and found five injuries (which have already been mentioned above and are not being reproduced for the sake of brevity). On further examination, he found that skull was broken and the reason for his death were the injuries. According to him, the timing of injuries could be around 2 O'clock on 23.8.1999. The injuries were sufficient for his death. Injury no.(iii) was because of lathi or danda and the rest were the gun shot wounds.
67. PW-8 Constable Rohtash Tyagi is a formal witness. On the instructions of the I.O. he sealed and carried the body of Ram Prasad for post mortem. The body was throughout under his possession. Nobody was allowed to touch the body. According to him, he had reached the spot on 23.8.1999 at 4.30 P.M.. He took both the bodies on a tractor and left at around 19.30 hours and reached Bulandshahr Mortuary at around 12 or 1 O'clock in the night. The prosecution witness had filed the document in the police lines in the early morning.
68. PW-9 Dr. Vinod Kumar Payal was posted at P.S.Civil Lines, District-Aligarh on 24.8.1999 where a memo report was filed at 6.30 A.M. of deceased Vimal. The report was received on R.T. Set and it was also lodged in General Diary as Report No.409. He went to Medical College and had all the relevant documents. He sealed the body of deceased Vimal and sent it through Constable Jubair Khan and Homeguard Rameshwar for post mortem. In his cross-examination he stated that when he received report on R.T. Set he was on mobile duty and thereafter he went to the police station.
69. PW-11 Hasmat Khan, Deputy Superintendent of Police is a formal witness. PW-12 Jabar Singh, again is a formal witness. PW-13 Chandrapal Singh is also a formal witness.
70. PW-10 Harishankar Singh is the I.O. In his examination-in-chief he stated that on 23.8.1999 he was posted as Station House Officer at Ahmedgarh Police Station. On the complaint registered by Satyendra he registered Case Crime No.136 of 1999 under Sections 147, 148, 149, 307, 302, 404 IPC against Virendra Singh and others. This was registered by Head Constable Padam Singh. His writing and signatures are recognized by PW-10. Thereafter, he went to the place of incident along with police force. Thereafter, he prepared inquest report of deceased Rambhul which has been proved as Exhibit Ka 20. He collected the blood stained soil, recovery memo of which was prepared by Suraj Singh. Near the body of Rambhul two empty cartridges were found which were taken into custody and recovery memo was prepared by Suraj Singh. Thereafter, the I.O. reached the village where he found the body of deceased Ram Prasad. Inquest was prepared by Suraj Singh, Sub Inspector. The body of the deceased after the inquest was handed over to constable Rohtash Tyagi and Sunil Kumar to be taken for post mortem. The blood stained soil near the body of Ram Prasad was collected and sealed in a box. He also took the slippers in his possession which could be of anybody while running away from the place of incident. He also took in possession the motorcycle from the place of incident bearing Registration no.DDW 5967 which was ten steps away. He recorded the statement of Satyendra on the same day. He also inspected the place where the body was found and prepared map of the place of incident.
71. On 24.8.1999, the statements of witnesses Udaiveer, Rajkumar were taken. He again tried to apprehend the accused in custody, but was in vain. All the evidences collected had been sent to Ahmedgarh and accordingly report of all the materials was lodged in roznamcha (Police Daily Diary).
72. PW-10 in his examination-in-chief has stated that on 25.8.1999 he along with In-Charge Inspector went in search of the accused. He had information from an informant that accused full armed were sitting near the temple of village Satwara. On this information, PW-10 along with In-Charge Inspector went to the spot and found that accused were sitting there with intention to kill. On looking at the police they fired at them but the Police officer had a narrow escape. After showing great courage, they apprehended Vijaypal, Kiranpal and Virendra along with one another person. Accused Vijaypal had 315 bore rifle which was looted from the deceased. Country made pistol with cartridges were also recovered, from the other accused. All of them were sealed in different clothes at the spot. The accused and the weapons seized were taken to the police station.
73. Chief Constable Padam Singh made inquest about the seized rifle, two live cartridges and other empty cartridges. From accused Kiranpal a gun of 12 bore was recovered along with four live cartridges. From accused Surendra one country made pistol of 315 bore and two live cartridges and one used cartridge were recovered. From accused Subhash one 303 bore live cartridge and one blank cartridge were recovered. Vijaypal had admitted that the rifle recovered from him was the same rifle which was looted from deceased Rambhul (Pradhan).
74. PW-10 further submitted that two blank cartridges of 315 bore which were recovered near the body of deceased Ram Prasad had been sent for examination to forensic laboratory.
75. On 2.9.1999 PW-10 along with Suraj Singh and other police personnel had gone to look for the accused. At around 1.20 P.M. on that day, accused Navbahar was taken into custody, on the Road from Muradpur to Cold Storage, Ahmedgarh, Debai Road. On being interrogated a knife was recovered from Navbahar which was used for murder of the deceased. This knife was recovered from the northern side of the house of Virendra in the hay stock. The knife had mud and blood stains. The knife was sealed there and was sent to the police station. The report of the same was also put in the fard.
76. Again on 3.9.1999, PW-10 along with other police personnel went looking for other accused. At that time, he got information from an informant, that accused Surendra, Jugendra and Jagpal are sitting at Viviana Taal liquor vend. Accordingly, at 13 O'clock Surendra and Jagpal were taken into custody and were sent to the police station. On being interrogated both Surendra and Jagpal agreed to surrender the weapons used for murder. Accordingly, at 2.20 P.M. the police team went to village Chimavali. They went to the house of Virendra where a country made pistol of 312 bore was recovered, which was buried under the ground. Surendra confessed that this was the weapon used for the murder. This country made pistol was seized and sent to the police station.
77. DW-2 Sonpal stated that on 24.8.1999 at around 6 P.M. he was at home and at that time police from Police Stations Pishawa and Ahmedgarh came and took Surendra on his motorcycle to Pishawa Police Station.
78. DW-1 Indrajeet Singh stated that on 27.8.1999 he has gone to Ahmedgarh Police Station and got the motorcycle released which was taken into custody along with accused Surendra.
79. DW-3 Suresh Kumar stated that Deshraj, Rajkumar and Navbahar are real brothers and they live together. All of them are farmers. All the brothers have together 100 bighas of land. His father was Pradhan in 1974. On 24.8.1999 at around 11 O'clock in the night police personnel came to his house and arrested his brother Navbahar. On being confronted, lot of villagers gathered. At that time, the police personnel said that they were taking Navbahar to Pishawa Police Station for enquiry and thereafter he will be set free but when he was not freed till 5 O'clock in the morning, on being asked, the police personnel said that he will be left by the evening. Thereafter he was told that Navbahar has been taken to Ahmedgarh Police Station. When he went to Ahmedgarh Police Station he was informed that Navbahar is not there. This information was sent to the Senior Superintendent of Police. In fact, an application was also filed before the Chief Judicial Magistrate to produce Navbahar. He further stated that PW-10 out of some previous enmity has wrongly implicated as an accused in this case.
80. DW-4 Smt. Gyanendri stated that she knows accused Navbahar. The police of Pishawa Police Station had come and taken him. Police personnel gave in writing that they have taken Navbahar to Pishawa Police Station and after initial enquiry they will let him go. When she went to Pishawa Police Station, Navbahar was not there. She was told that he has been taken to Ahmedgarh Police Station.
81. DW-5 Om Prakash said that Navbahar was taken to the police station at 1 P.M. There was lot of resistance by the villagers but the police personnel arrested and took him. He further stated that he had written all this on the instructions of S.O. Harishankar. He further admitted that there is previous enmity between Navbahar and PW-10 Harishankar. Everybody in the village knows that there is prior animosity of S.O. Harishankar with Navbahar. Before taking Navbahar, assurance was given by PW-10 that he will return Navbahar as he is taking him. They are only taking Navbahar for some enquiry. When Navbahar did not return they all went to the police station where they were informed that he had been taken to Ahmedgarh Police Station.
82. DW-6 Ravindra Singh stated that on 2.9.1999 at around 6 P.M. Jugendra, Jagpal, one of his relative Ravi and Om Prakash were sitting and talking. Jagpal and Jugendra were taken into custody from this place. When he asked in what case is he being arrested, police personnel told him to send telegram.
83. Now we will take up each appeal separately and deal with the accused separately.
Criminal Appeal No.3563 of 2004
84. There are four appellants in this appeal:-
(i) Virendra
(ii) Kiranpal
(iii) Jugendra &
(iv) Satbir
85. It is clear from the prosecution story and the evidence produced by them as well as medical and other documentary evidences that accused Virendra, Kiranpal, Jugendra and Satbir all the four accused, who are appellants in Criminal Appeal No.3563 of 2004, were the main persons who stopped deceased Rambhul and Vimal where Virendra had kicked the bike and Kiranpal attacked Vimal on his head by rod. Thereafter, deceased are said to be shot by Virendra, Jugendra and Satbir as well. Evidently, these four people were clearly involved in murder of Rambhul and Vimal. Post Mortem Report and ante mortem injuries on the bodies of deceased Rambhul and Vimal is completely corroborated with the evidences of PWs-1, 2 and 3. They are the eye witnesses. Here and there in the statements of PWs-1, 2 and 3 there are some minor contradictions, which are not substantial that would discredit the evidences of these witnesses. In fact, the second incident where Ram Prasad was murdered as per eye witnesses only these four accused namely, Virendra, Jugendra and Kiranpal were involved in shooting them. The ante mortem injuries and Post Mortem Report is completely corroborated with the evidences of the eye witnesses. There is no contradiction and there are no reaons to disbelieve the evidences of the prosecution witnesses.
Role of accused Virendra
86. As per prosecution version, Virendra had shot Rambhul and Vimal. Later on, he went on the snatched motorcycle to the village where he is said to have fired on Ram Prasad. As far as role of Virendra is concerned, the evidence of prosecution witnesses i.e. PWs 1, 2, 3 and 10, there is hardly any contradiction. In fact, the evidence of prosecution witnesses was further corroborated by the medical evidence. It was a broad day light murder and there are eye witnesses to the incident. In spite of best efforts, counsel for the accused/appellants herein could not make any dent on the evidences produced by the prosecution. Though the portion of the prosecution story of recovery of weapon is not matching but on all other evidence corroborates that Virendra was responsible in the murder of Rambhul, Vimal and Ram Prasad. Accordingly, we find that the Court below has rightly convicted him and we find no illegality in the impugned judgment and order qua appellant Virendra.
Role of accused Kiranpal
87. As per prosecution story when the deceased Rambhul and Vimal were coming back to the village they saw Sonu and Monu sitting under the tree and when they stopped the motorcycle, at that time Kiranpal along with other came forward and kicked the motorcycle. He was said to have been carrying a country made pistol. The role assigned to Kiranpal is that he had fired on Rambhul and Vimal. Thereafter, along with other accused it is alleged that he had gone to the village where he was among one of the assailant who had also shot Ram Prasad. As per PW-10, he had arrested Kiranpal on 25.8.1999 and during investigation a country made pistol along with four cartridges were recovered from accused Kiranpal. As per version of eye witness, he was also one of the person who was involved in shooting Rambhul, Vimal and Ram Prasad. The ocular statements of PW-1 and PW-3 were well corroborated with the medical evidence and the recovery of weapon. His role as described by the prosecution cannot be doubted.The trial court has rightly convicted accused Kiranpal under Section 148/302 read with Section 149 IPC. We find no illegality in the impugned judgment and order qua appellant Kiranpal.
Role of accused Jugendra
88. As per the prosecution story, Jugendra was also one of the four assailants, who had stopped deceased Rambhul and Vimal and shot at them. As per the prosecution story, Jugendra was carrying a coutnry made pistol. He was arrested on 3.9.1999. After his arrest .312 bore pistol was recovered. According to PW-10 it has been same pistol which was used in the incident. The statements of prosecution witnesses against accused Jugendra is also corroborated with the medical evidence. There is no contradiction between the statements of eye witnesses, who had seen the incident, his presence cannot be doubted. The trial court has rightly convicted accused Jugendra under Section 148, 302 read with Section 149 of IPC. After going through all the evidences against this accused, hearing the arguments and perusing the record, we find that the court below has convicted the accused Jugendra and we find no illegality in the impugned judgment and order qua appellant Jugendra.
Role of accused Satbir
89. As per the prosecution story Satbir was not among the four people who had stopped Rambhul and Vimal. As per FIR, those were Virendra, Kiranpal, Jugendra and Sheeshpal, who had stopped Rambhul and Vimal. Satbir was among the accused who were hiding in the adjoining maize field. Specific role of firing with intention to kill has been assigned to Satbir in the FIR and the FIR version has been fully corroborated by the prosecution witnesses. Accordingly, we find no illegality in the impugned judgment and order qua appellant Satbir.
90. Learned counsel appearing for the appellants in Criminal Appeal No.3563 of 2004 in spite of his best efforts could not place any evidence which could discredit the evidences of the eye witnesses for these four accused appellants namely, Virendra, Kiranpal, Jugendra and Satbir. The Court below has rightly convicted the accused and we find no illegality in the impugned judgment and order dated 20.5.2004 so far as it relates to conviction of appellants namely, Virendra, Kiranpal, Jugendra and Satbir under Sections 148, 302 read with Section 149 IPC. The conviction accorded by the trial court to these appellants is upheld. Accordingly, Criminal Appeal No.3563 of 2004 qua appellants Virendra, Kiranpal, Jugendra and Satbir is dismissed. The sentence awarded to the aforesaid appellants by the Court below is upheld.
91. However, on the last date of hearing i.e. 8.8.2023, learned counsel for the appellants informed that vide order dated 14.6.2023 giving benefit of Section 2 of U.P. Prisoners Release on Probation Act, 1938, the Hon'ble Governor of U.P has released of the appellants under Rule 8 of the U.P. Prisoners Release on Probation Rules. Since, they have already served sentence of more than 24 years, hence, this order will not come in way to the benefit already granted by the State to the aforesaid appellants.
Criminal Appeal No.2818 of 2004
92. This appeal has been preferred by appellants namely (1) Subhash (2) Sheoraj (3) Vijaypal (4) Sheeshpal (5) Chandrapal and (6) Prithvi. We hereby now take case of individual appellants separately.
93. The role assigned to accused Subhash is that he was one among the few people who were hiding in the adjoining maize field and come out to attack deceased Rambhul and Vimal. Even in the FIR, no direct role has been assigned against accused Subhash. Both PW-2 and PW-3 in their respective statements have took the name of accused Subhash as the persons who were hiding in the adjoining maize field and came out to attack deceased Rambhul and Vimal. However, both these witnesses of fact did not disclose about the crime committed by accused Subhash during the incidents. Another eye witness, PW-1 even did not took the name of this accused in his statement before the Court. In absence of specific role assigned to accused Subhash by the witnesses of fact, his presence at the place of incident on the relevant date and time of occurrence seems to be doubtful. Moreover, no recovery has been made from him. It seems, apparently, he has been falsely implicated in the case. In this case, this has also been seen that all the male family members of the accused have been implicated. During pendency of the case, he was enlarged on bail. The prosecution has failed to make out a specific case against appellant Subhash. Accordingly, his appeal is allowed and his conviction under Section 148, 302 read with Section 149 IPC is set aside.
94. Appellant no.2 Sheoraj, who was aged about 76 years at that point of time, was father of accused Kiranpal and Sheeshpal. However, during pendency of this appeal, he has passed away. This fact has been confirmed by the State and hence, the appeal filed on his behalf stands abated.
95. Appellant no.3 Vijaypal son of Mahipal, was aged about 68 years at the time of incident and he is father of accused Virendra. No specific role in the murder of the deceased has been assigned to him. As per the FIR, he was supposedly been hiding in the maize field with tamancha (country made pistol) and is alleged to be one of the assailant. He is the father of accused Virendra. However, the recovery made from him was that of rifle which was snatched. Even going by the version of FIR and prosecution witnesses, the rifle was snatched by people in Group 'A' and was used in the second incident. However, because of the recovery of rifle from him, a case under the Arms Act has been instituted against him, wherein ultimately he was acquitted. Even in the evidence of the prosecution witnesses, no specific role has been assigned to him. He also seems to have been falsely implicated as counter blast for the murder of the deceased. His presence at the place of incident is quite unlikely and his involvement in the crime is also quite unlikely.
96. Appellant no.4 Sheeshpal son of Sheoraj died during pendency of the appeal, hence, his appeal stands abated. This fact has been confirmed by the State and hence, the appeal filed on his behalf stands abated.
97. Appellant no.5 Chandrapal who was son of Mahipal died during pendency of the appeal. This fact has been corroborated by the State and hence, his appeal stands abated.
98. Appellant no.6 Prithvi son of Mahipal is stated to be aged about 71 years when the incident took place. He is son of Mahipal and father of Subhash. He died during pendency of the appeal and the same has been confirmed by the State, hence, the appeal filed on his behalf stands abated.
99. In this appeal out of six appellants, four appellants as noted above have already died and only appellant no.1 Subhash and appellant no.3 Vijaypal are alive. Looking into the facts, and after perusing the evidence, no case is made out against these two accused. Vijaypal seems to have been implicated in this case only because he is father of main accused Virendra and Subhash is also made an accused being their relative. However, no recovery was made from accused Subhash. Hence, the Criminal Appeal No.2818 of 2004 so far as it relates to appellants Subhash and Vijaypal is hereby allowed. Both the appellants are acquitted from the offences under Section 148, 302 read with Section 149 IPC.
Criminal Appeal No.3073 of 2004
100. At the time of commencing the argument, Sri Amit Kumar Gaur, learned counsel for the appellants prayed for dismissal of Criminal Appeal No.3073 of 2004 as withdrawn as appeal on behalf of the sole appellant Satbir, is already before this Court being Criminal Appeal No.3563 of 2004, wherein he is appellant no.4.
101. The prayer so made is allowed and Criminal Appeal No.3073 of 2004 is dismissed as withdrawn, as Satbir is already an appellant in pending Criminal Appeal No.3563 of 2004.
Government Appeal No.4457 of 2004
102. This appeal has been filed by the State against impugned judgment and order dated 20.5.2004 whereby opposite parties namely, Surendra, Navbahar, Virendra, Kiranpal, Jugendra, Satbir, Vijaypal, Sheeshpal, Chandrapal, Subhash, Prithvi and Sheoraj have been acquitted. Learned Sessions Court has acquitted these accused under the Arms Act on the ground that the recoveries of weapons are doubtful as no evidence of witness of public or nearby area was taken during the time of recoveries. Moreover, recoveries have been made from open places by the I.O. Accused Surendra and Navbahar were not found guilty under Section 148/302 read with Section 149, 394 IPC. Accused Virendra, Kiranpal, Sheeshpal and Jugendra were acquitted from the charges under Section 341 IPC. Accused Virendra, Kiranpal, Jugendra, Satbir, Subhash, Sheoraj, Vijaypal, Sheeshpal, Chatrapal and Prithvi were acquitted from the charges under Section 394, 404 IPC. Further, accused Navbahar was acquitted from the charges under Section 4/25 of the Arms Act. Accused Virendra was acquitted from the charges under Section 25 of the Arms Act. Accused Surendra was acquitted from the charges under Section 25 of the Arms Act. Accused Satbir has also been acquitted from the charges under Section 25 of the Arms Act. Accused Sheeshpal has been acquitted from the charges under Section 25 of the Arms Act.
103. Learned Additional Government Advocate has failed to produce any evidence or documents to prove that above acquittal of accused was incorrect or illegal. Hence, the instant Government Appeal filed by the State is hereby dismissed.
Order Date :- 21.9.2023
Manish Himwan
(Prashant Kumar, J.) (Manoj Kumar Gupta, J.)
