Allahabad High Court
Ram Narayan @ Lal vs State Of U.P. on 2 August, 2019
Equivalent citations: AIRONLINE 2019 ALL 1922
Bench: Sudhir Agarwal, Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on: 23.05.2019 Delivered on: 2.8.2019 Court No. - 34 1. Case :- CRIMINAL APPEAL No. - 5708 of 2017 Appellant :- Ram Narayan @ Lal Respondent :- State Of U.P. Counsel for Appellant :- Kameshwar Singh Counsel for Respondent :- G.A.,Sudhir Bharti 2. Case :- CRIMINAL APPEAL No. - 5947 of 2017 Appellant :- Ram Sewak Respondent :- State Of U.P. Counsel for Appellant :- Mangla Prasad Rai Counsel for Respondent :- G.A.,Sudhir Bharti 3. Case :- CRIMINAL APPEAL No. - 5752 of 2017 Appellant :- Dalpat Respondent :- State Of U.P. Counsel for Appellant :- Kameshwar Singh Counsel for Respondent :- G.A.,Sudhir Bharti 4. Case :- CRIMINAL APPEAL No. - 5950 of 2017 Appellant :- Ashish And Another Respondent :- State Of U.P. Counsel for Appellant :- Mangla Prasad Rai Counsel for Respondent :- G.A.,Sudhir Bharti 5. Case :- CRIMINAL APPEAL No. - 5986 of 2017 Appellant :- Jagmohan @ Munna Nishad And Another Respondent :- State Of U.P. Counsel for Appellant :- Ajai Kumar,Phool Singh Yadav Counsel for Respondent :- G.A.,Sudhir Bharti 6. Case :- CRIMINAL APPEAL No. - 6068 of 2017 Appellant :- Rameshwar Respondent :- State Of U.P. Counsel for Appellant :- Phool Singh Yadav,Phool Singh Yadav Counsel for Respondent :- G.A.,Sudhir Bharti 7. Case :- CRIMINAL APPEAL No. - 6116 of 2017 Appellant :- Badri Vishal Pal Respondent :- The State Of U.P. Counsel for Appellant :- Akhilesh Kumar,Rajesh Mishra,Urmila Shukla Counsel for Respondent :- G.A.,Sudhir Bharti 8. Case :- CRIMINAL APPEAL No. - 7192 of 2017 Appellant :- Munna Alias Surendra Pal Kewat Respondent :- State Of U.P. Counsel for Appellant :- Purushottam Dixit Counsel for Respondent :- G.A. Hon'ble Sudhir Agarwal, J.
Hon'ble Virendra Kumar Srivastava, J.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. All these eight criminal appeals have been preferred against a common judgment dated 29.8.2017 and order dated 5.9.2017 passed by Richa Joshi, Additional Sessions Judge, F.T.C., (Court no. 2), Fatehpur. By the impugned judgment and order, accused appellants Ram Narayan @ Lala (Crl. Appeal No. 5708 of 2017), Dalpat (Crl. Appeal no. 5752 of 2017), Ashish and Ramsewak (Crl. Appeal No. 5950 of 2017), Jagmohan @ Munna and Sukhpal (Crl. Appeal No. 5986 of 2017), Rameshwar Kewat (Crl. Appeal No. 6068 of 2017), Badri Vishal Pal (Crl. Appeal No. 6116 of 2017) and Munna @ Surendra Pal (Crl. Appeal No. 7192 of 2017) have been convicted under Section 302/149 IPC and sentenced to undergo Rigorous Imprisonment (hereinafter referred to as 'R.I.') for life along with fine of Rs. 20,000/- each. It is also provided that in case of default in payment of fine, each of the accused appellants shall further undergo 6 months additional simple imprisonment. All the aforesaid accused appellants have also been convicted and sentenced under Section 147 IPC to undergo 2 years R.I. and a fine of Rs. 5000/- each. In the event of default in payment of fine they have to suffer 3 months additional simple imprisonment. All the accused appellants have further been convicted and sentenced under Section 148 IPC to serve out 3 years R.I. and a fine of Rs. 5000/- each. In case of default in payment of fine, provision of 3 months additional simple imprisonment was made. Accused appellant Munna @ Surendra Pal has further been convicted and sentenced under Section 30 Arms Act 1959 (hereinafter referred to as "Act, 1959") to undergo 6 months imprisonment with a fine of Rs. 1000/-. In case of default in payment of fine, he is required to undergo one month additional simple imprisonment. Accused appellants Rameshwar, Sukhpal Kewat, Dalpat Kewat, Ram Sewak, Badri Vishal Pal and Ram Narayan have been convicted and sentenced under Section 25 of Act, 1959 to undergo one year Simple Imprisonment and fine of Rs. 1000/- each. In the event of default in payment of fine, each has to undergo additional Simple Imprisonment for one month. All the sentences imposed on appellants are directed to run concurrently.
2. Crl. Appeal No. 5947 of 2017 has been filed separately by Ram Sewak against the conviction and sentence u/s 25 of Act, 1959.
3. Factual matrix of the case, surfacing from the First Information Report (hereinafter referred to as 'F.I.R.'), as also the evidence available on record, may be stated as under.
4. A written report, Ex.Ka-1 was presented by PW-1 Rajesh Kumar at P.S. Gazipur, District Fatehpur, on 21.5.2011 at 6:30 a.m. stating that he is the son of deceased Jagannath Nishad, resident of Village Nidhwapur Majre Parsetha, P.S. Gazipur, District Fatehpur. In the preceding night of 20.5.2011, Informant, PW-1, along with his father, deceased Jagannath, aged about 50 years, and Babu, aged about 40 years, after taking meals, had gone to field, situated near Government Tubewell, in order to look after and protect the crops of moong and ladyfinger. Informant was sleeping on the roof of Tubewell whereas his father and Babu were sleeping on the ground over a katheri (cushion made of old sarees/dhoti). In the night, at about 11 p.m., accused appellants Jagmohan @ Munna s/o Shiv Balak, Munna s/o Seeta Ram, both armed with their licensed DBBL gun, Rameshwar s/o Shiv Balak, Sukhpal s/o Ram Kripal, Ashish s/o Ram Sewak, Dalpat s/o Ram Ratan, Ram Narayan @ Lala s/o Ram Pal and Ram Sewak s/o Shri Pal armed with illegal weapons, all residents of village of Informant, and Badri Vishal Pal s/o Hardayal Pal, resident of Village Parsetha, armed with illegal weapon came over there and tried to awake father of Informant as well as Babu, sleeping by his side, on account of election enmity and scuffle taken place at the time of Holi. Seeing accused appellants, aforesaid two persons being scared, tried to flee away but accused appellants caught hold both of them and felled them down. They resorted to indiscriminate firing by their respective weapons and murdered both of them. Informant on account of fear remained lying silently on the roof of Tubewell and witnessed entire incident in the moon light. In the meantime, from the side of village, Ram Bihari s/o Kedar Nath, Jai Karan s/o Ram Swaroop, Lal ji s/o Sandala, Ram Sajivan s/o Ram Khelawan and several others, armed with lathis, holding torches reached the road passing near Tubewell and therefrom they witnessed the incident. When they exhorted accused appellants, they were threatened by accused who shouted and warned villagers to go back otherwise they would also meet the same treatment. Accused appellants also opened several fires in air towards left side of the road as a result whereof villagers on the road, being frightened, went back to village and concealed themselves in their houses after closing doors. Accused appellants had surrounded the village throughout night and at about 4:00 a.m. in the morning, went towards jungle, hurling threats that whosoever would inform police, of the incident or appear as witness, he too would be met with similar consequence. All accused appellants, F.I.R. states, have formed an organized gang for their own benefit, committing offences and incidents. Prior to this incident they have also murdered one Shamsher s/o Chandrapal Nishad and in that case, sentence of life imprisonment has been inflicted. These accused have created an atmosphere of terror and for that reason, nobody dares to make complaint or lodge a case or appear as witness against them. After accused appellants had gone away, Informant, PW-1, came down from the roof. In the meantime, family members and several villagers had also reached the place of occurrence. It is stated in F.I.R. that Informant had gone secretly, concealing him, to the Police Station for lodging report.
5. On the basis of written report, Ex.Ka-1, PW- 5 Abdul Aziz, the then Head Moharrir at Police Station registered a case under Section 147, 148, 149, 302 IPC at Case Crime No. 92 of 2011. He also prepared a Chik report, Ex.Ka-23. Simultaneously, he made an entry of the incident in general diary at Report No. 12, a copy of which has been filed in court as Ex.24. He also registered a case under Section 30 of Act, 1959 against accused appellant Munna @ Surendra Pal Kewat and under Section 25 of Act, 1959 against accused appellants Rameshwar, Dalpat, Ram Narayan, Sukhpal at Case Crime No. 98 of 2011, 99 of 2011, 100 of 2011, 101 of 2011 and 102 of 2011 and also prepared Chik F.I.R., Ex.Ka-25. Corresponding entries were made by him at Report no. 2 at 1:45 p.m. in General Diary on 31.5.2011. A copy of general diary, Ex.Ka-26 is on record.
6. Immediately after registration of F.I.R., investigation was undertaken by PW-4, S.I. Rakesh Kumar Saroj, who rushed to the place of occurrence and took in possession three empty cartridges, one bullet of 315 bore and prepared recovery memo in respect thereof. He also took sample of simple and blood stained soil from near the dead bodies of Babu and Jagannath, sealed them in separate phials and prepared recovery memos, Ex.Ka-5 and Ex.Ka-6, respectively. Investigating Officer (hereinafter referred to as 'I.O.') PW-4, Rakesh Kumar Saroj got prepared inquest report, Ex.Ka-7, in respect of deceased Babu and Ex.Ka-12, in respect of deceased Jagannath by S.I. R.C. Yadav. S.I. R.C. Yadav, also prepared necessary documents, Ex.Ka-8 to Ka-11 i.e. letter to C.M.O., specimen seal, Challan Nash, Photo Nash in respect of deceased Babu and Ex.Ka-13 to Ka-16 in respect of deceased Jagannath. Thereafter, he sent both dead bodies to District Hospital for post mortem. On pointing of the Informant, PW-1, he had prepared site plan, Ex.Ka-17.
7. On 21.5.2011 PW-3, Dr. K.V. Chaudhary of District Women Hospital, Fatehpur conducted post mortem over dead body of Babu at 5:40 p.m. According to him, about half day had passed since his death. The deceased was of average body built, his eyes and mouth were partially open. PW-3 found following ante mortem injuries on the person of deceased:-
1. firearm entry wound on left side face temporal region skull size (2 cm x 2 cm) 4 cm anterior to left ear; blackening and tattooing present around the wound.
2. firearm entry wound on left side face one cm. lateral to left angle of mouth, size (1cm x 1cm); blackening and tattooing present around the wound; size (7 cm x 6 cm) on left side of face.
3. firearm entry wound on right side of chest 3 cm above right nipple, X cavity deep; blackening and tattooing present; size of wound (2 cm x 1cm).
4. firearm entry wound on left side below mid clavicle; size (2 cm x 2 cm); blackening and tattooing present around wound.
5. firearm exit wound on back side left posterior part of axilla size (1cm x 1cm).
6. firearm entry wound on left side abdomen size (2 cm x 2 cm); cavity deep, 15 cm below the left nipple; blackening and tattooing present around the wound; size (4 cm x 4 cm).
7. firearm exit wound on right side back of thoracic region 3 cm lateral on 12 (thoracic vertebrae) region.
(emphasis added)
8. On internal examination fracture of III rib left side was found; pleura left lacerated; left lung pale; right lung lacerated; heart was empty; about one and half litre blood clot present in thoracic cavity; peritoneum lacerated; one litre blood clot present in cavity; teeth 16/16, stomach contained about 300 ml pasty like food material; small intestine half filled with gases; large intestine half filled with faecal matter; liver- pale; gallbladder half filled; spleen- pale; both kidneys were pale and urinary bladder half filled. In the opinion of Doctor death had occurred due to shock and haemorrhage, as a result of ante mortem firearm injuries. Three metallic cylindrical type bullets recovered from body. The doctor prepared post mortem report, Ex.Ka-3.
9. On the same day at 4:40 p.m. the same Doctor i.e. PW-3 conducted autopsy on the dead body of Jagannath. He was 50 years old and of average body built. Rigor mortis present in upper and lower extremities. Eyes and mouth were closed. Following ante mortem injuries on the person of the deceased were found:-
1. firearm entry wound on left side tempo parietal region of scull; size (2 cm x 2 cm); 5 cm above left area; brain deep underlying bone fractured, blackening and tattooing present around the wound (4 cm x 4 cm).
2. firearm wound on left eyebrow, size (2 cm x 2 cm), muscle deep; blackening and tattooing present size (10 cm x 9 cm) on the face left side.
3. firearm wound on the abdomen wound of entry present size (1cm x 1cm), blackening and tattooing present around the wound, size (15 cm x 3 cm) just above the umbilicus, wound of entry 3 cm above the umbilicus .
4. firearm wound on abdomen right side above iliac crest area, 12 cm lateral to umbilicus; blackening and tattooing present around the wound; size (20 cm x 12 cm).
5. firearm entry wound on the back side of right shoulder above right scapula; blackening and tattooing present around the wound; size (4 cmx4 cm) underlying bone fracture.
10. The Doctor, PW-3 found three metallic cylindrical type of bullets from body and sent the same to S.P., Fatehpur. On internal examination the membrane of head and neck was found lacerated. Brain was lacerated and about 200 ml blood and clot present. Pleura- pale; right and left lungs- pale; heart was empty; wall of abdomen-lacerated; peritoneum- lacerated; abdominal cavity contained about 2 litre blood and clot; teeth 16/15; stomach contained about 200 ml pasty like food material; small intestine half filled with gases; large intestine half filled with faecal matter; liver lacerated; gallbladder half filled; both kidneys half pale and urinary bladder half filled. According to doctor cause of death was shock and haemorrhage as a result of ante mortem injuries. The doctor has prepared post mortem report, Ex.Ka-2.
11. On 24.5.2011 I.O., PW-4, after receiving information from an Informer, arrested accused appellant Badri Vishal Pal of village Parsetha and accused appellant Ram Sewak of village Parsetha. On search, one country made pistol of 315 bore in working condition was recovered from the right phent of Badri Vishal Pal. A live cartridge of 315 bore was loaded into barrel of pistol. On search of the accused Ram Sewak, one country made pistol of 315 bore in working condition was recovered from his right phent with a live cartridge of 315 bore loaded inside. On query, both the aforesaid accused admitted their involvement in the crime of committing murder of Babu and Jagannath using aforesaid weapons. I.O. sealed country made pistols and cartridges in separate packets and got prepared recovery memo Ex.Ka-18 by S.I. Daya Shanker Tiwari. Thereafter, on 25.5.2011 a case under Section 25 of Act, 1959 was registered. On 30.5.2011, PW-4 arrested five accused appellants namely Munna @ Surendra Pal Kewat, Rameshwar Kewat, Dalapat, Ram Narayan and Sukhpal.
12. One DBBL gun, two live cartridges and one licence No. 888 issued by District Magistrate, Fatehpur had been recovered from the possession of Munna @ Surendra. One country made SBBL gun of 12 bore with 4 live cartridges of 12 bore kept in the cartridge belt had been recovered from the person of Rameshwar Kewat. One country made pistol of 315 bore, one live cartridge and one empty cartridge were recovered from the possession of Dalpat. One country made pistol of 315 bore and one live cartridge of 315 bore had been recovered from the possession of Ram Narayan @ Lala. One country made pistol of 315 bore, one live cartridge and one empty cartridge were recovered from the possession of accused appellant Sukhpal Kewat. All the five accused appellants admitted their involvement and use of respective weapons in the murder of Babu and Jagannath. He got prepared recovery memos Paper Nos. 3A/5 to 3A/7 through S.I. Ramesh Chandra. Later, accused appellant Ashish was arrested and in respect of accused Jagmohan @ Munna non-bailable warrant and orders for proceeding under Section 82, 83 Cr.P.C. were obtained from the Court on 25.7.2011.
13. After collecting evidence and concluding investigation, PW- 4 submitted charge sheet, Ex.Ka-19 against accused appellants Munna, Rameshwar Kewat, Sukhpal (wrongly mentioned as Shiv Pal in the statement of PW-3), Ashish, Dalpat, Ram Narayan @ Lala, Ram Sewak and Badri Vishal Pal under Section 147, 148, 149, 302 IPC.
14. Consequent upon Court's order dated 25.7.2011 directing for proceeding under Section 82 and 83 Cr.P.C. accused appellant Jagmohan surrendered in the Court on 2.8.2011. On investigation, he told that his licensed gun was in the shop of Ajay Arms Store, Fatehpur. After obtaining permission from District Magistrate, I.O. took in possession DBBL gun no. 6555 as per Rules and prepared recovery memo, Ex.Ka-20 in respect thereof. A separate charge sheet, Ex.Ka-22 was submitted before the Court by the investigating officer on 17.8.2011.
15. PW-8, S.I. Dayashankar Tiwari had conducted investigation with regard to offences under Sections 25 and 30 of Act, 1959 against the accused appellants. He prepared site plan, Ex.Ka-34 in respect of place wherefrom five accused namely Munna, Rameshwar Kewat, Dalpat Kewat, Ram Narayan and Sukhpal were arrested by police. Charge sheets Ex.Ka-35 and Ex.Ka-36 were filed against accused appellants Munna @ Surendra Pal under Section 30 of Act, 1959 and against Rameshwar Kewat under under Section 25 of Act, 1959, respectively. Requisite sanction for prosecution against accused appellant Rameshwar Kewat as Ex.Ka-37 is on record. Ex.Ka-38 is charge sheet and Ex.Ka-39 is sanction against Dalpat. Ex.Ka-40 is charge sheet under Section 25 of Act, 1959 and Ex.Ka-41 is sanction for prosecution against Ram Narayan. Similarly, Ex.Ka-42 and Ex.Ka-43 are charge sheet and sanction in respect of accused Sukhpal Kewat.
16. After filing charge sheet, Ex.Ka-19 under Section 147, 148, 149, 302 IPC by the police, C.J.M. Fatehpur took cognizance of the offence on 8.8.2011 against accused appellants Munna, Rameshwar, Sukhpal, Ashish, Dalpat, Ram Sewak, Ram Narayan and Badri Vishal Pal. Cognizance of the offence against accused appellant Jagmohan on the charge sheet, Ex.Ka-22 was also taken by C.J.M., Fatehpur on 1.10.2011. On charge sheets Ex.Ka-28, Ka-30, Ka-36, Ka-38, Ka-40 and Ka-42 cognizance of the offence under Section 25 of Act, 1959 was taken by C.J.M. on 8.7.2011, 25.7.2011, 23.8.2011, 23.8.2011, 23.8.2011 and 23.8.2011, against accused appellants Badri Vishal Pal, Ram Sewak, Rameshwar Kewat, Dalpat, Ram Narayan and Sukhpal Kewat, respectively. Against accused appellant Munna @ Surendra Pal cognizance of the offence under Section 30 of Act, 1959 was taken by C.J.M. Fatehpur on 14.7.2011 on charge sheet Ex.Ka-35. All the charge sheets under Section 25 of Act, 1959 were filed after obtaining requisite sanction from District Magistrate.
17. Offences under Section 147, 148, 149, 302/34 IPC (Crime No. 92/11) being exclusively triable by Court of Sessions Judge, cases were committed to the Court of Sessions Judge by C.J.M. Fatehpur on 15.10.2011 which was registered as Session Trial No. 440 of 2011. Likewise cases under Section 25 and 30 of Act, 1959 against accused appellants were also sent to Sessions Court which were registered as S.T. No. 447 of 2011 against Badri Vishal Pal under Section 25 of Act, 1959; S.T. No. 448 of 2011 against Ram Sewak under Section 25 of Act, 1959; S.T. No. 449 of 2011 against Munna @ Surendra under Section 30 of Act, 1959; S.T. No. 451 of 2011 against Dalpat; S.T. No. 452 of 2011 against Ram Narayan under Section 25 of Act, 1959 and S.T. No. 453 of 2011 against Sukhpal under Section 25 of Act, 1959. Session Trial was ultimately transferred to Ist Addl. District and Sessions judge (Ex Cadre -I, Fatehpur) who framed charges against accused appellants on 13.7.2012 under Section 302 read with 149, 147, 148 IPC the charge reads as under:-
"eS jes'k flag] vij ftyk ,oa l= U;k;k/kh'k ¼,Dl dSMj½ izFke] Qrsgiqj vki vfHk;qDrx.k 1& eqUuk iq= lhrkjke dsoV 2& jkes'oj iq= f'kockyd dsoV 3& lq[kiky iq= jked`iky dsoV 4& vk'kh"k iq= jke lsod 5& nyir iq= jkejru 6& jkeujk;u mQZ yky iq= jkeiky 7& jkelsod iq= Jhiky 8& cnzh fo'kky iq= gjn;ky iky 9& txeksgu mQZ eqUuk fu"kkn] dks fuEu vkjksi ls vkjksfir djrk gwW %& 1& ;g fd fnuakd 20-05-2011 dks djhc 11%00 cts jkf= LFkku ljdkjh V;wcosy ikl fLFkr xzke fu/kokiqj etjs ijlsBk Fkkuk xkthiqj tuin Qrsgiqj esa vki yksxksa us ,d jk; gksdj lkekU; mn~ns'; dh iwfrZ esa eqdnek oknh jkts'k dqekj ds firk txUukFk ,oa ckcw dh rkcM+rksM+ Qk;fjaax dj gR;k dj nhA bl izdkj vki yksxks us /kkjk&302@149 Hkk0na0la0 ds v/khu n.Muh; vijk/k dkfjr fd;k tks bl U;k;k;y ds izlaKku esa gSA 2& ;gfd mijksDr fnukad] le; o LFkku ij vki vfHk;qDrx.k us ,d uktk;t etek dk;e dj cyok fd;kA bl izdkj vki yksxks us ,slk d`R; fd;k tks /kkjk&147 Hkk0na0la0 ds v/khu n.Muh; vijk/k gS tks bl U;k;ky; ds izlaKku esa gSA 3& ;gfd mijksDr fnuakd] le; o LFkku ij vki vfHk;qDrx.k us ,d uktk;t etek dk;e dj ?kkrd vk;q/kksa ls lfTtr gksdj cyok fd;kA bl izdkj vki yksxks us ,slk d`R; fd;k tks /kkjk&148 Hkk0na0la0 ds v/khu n.Muh; vijk/k gS] tks bl U;k;ky; ds izlaKku esa gSA eS ,rn~}kjk funsZf'kr djrk gwa fd mDr vkjksi ds fy, vki yksxks dk fopkj.k bl U;k;ky; }kjk fd;k tk;sxkA "
(i) that on 20.5.2011 at about 11:00 pm in village- Nidhwapur Majre Parsetha, near Government Tubewell under police circle Gazipur District Fatehpur, in furtherance of your common intention you killed informant's father Jagannath by resorting to indiscriminate firing. Thus you have committed an offence punishable under Section 302/149 IPC which is within cognizance of this Court.
(ii) that on aforesaid date, time and place you accused formed an unlawful assembly and committed rioting. Thus you have committed such an act which is punishable under Section 147 IPC and is within the cognizance of this Court.
(iii) That on the aforesaid date, time and place you all the accused forming an unlawful assembly committed rioting armed with deadly weapons. Thus you have committed such an act which is punishable under Section 148 IPC and within the cognizance of this Court.
18. Likewise charges under Section 25 of Act, 1959 were framed by learned Additional Sessions Judge-I Fatehpur, on 13.7.2012 against accused appellants Badri Vishal Pal, Ram Sewak, Rameshwar, Dalpat, Ram Narayan, Sukhpal, which reads as under:
Charge against Badri Vishal Pal:
^^eSa jes'k flag] vij ftyk ,oa l= U;k;k/kh'k ¼,Dl dSMj½ izFke] Qrsgiqj vki vfHk;qDr cnzhfo'kky iky] dks fuEu vkjksi ls vkjksfir djrk gwaA ;g fd fnukad 24-5-2011 le; 11%30 ih0,e0 LFkku ijlsBk jksM ij cuh iqfy;k ogn xzke ijlsBk Fkkuk xkthiqj tuin Qrsgiqj esa vkids dCts ls ,d vnn reapk nslh 315 cksj o ,d ftank dkjrwl Fkkuk/;{k jkds'k dqekj ljkst o vU; iqfyl dfEkZ;ksa us cjken fd;k ftldks j[kus dk vkids ikl dksbZ ykblsUl ugha FkkA bl izdkj vkius /kkjk&25 vk;q/k vf/kfu;e ds v/khu n.Muh; vijk/k dkfjr fd;k tks bl U;k;ky; ds izlaKku esa gSA eSa ,rn~}kjk funsZf'kr djrk gWw fd mDr vkjksi ds fy, vki yksxksa dk fopkj.k bl U;k;ky; }kjk fd;k tk;sxkA^^ "I, Ramesh Singh, Additional District and Sessions Judge (Ex. Cadre) First, Fatehpur, charge you accused, Badri Vishal Pal, as under with the following charge:
That on 24.5.2011 at 11:30 p.m., Rakesh Kumar Saroj, Station House Officer & other police personnel recovered one country made pistol 315 bore & one live cartridge from your possession at the culvert on Parsetha Road within Village-Parsetha, P.S.- Ghazipur, District- Fatehpur, regarding possession of which you had no licence. Accordingly, you have committed offence punishable u/s.25 Arms Act, which is in the cognizance of this Court.
I, hereby, direct that you all will be tried by this Court for the above charge."
Charge against Ram Sewak:
^^eSa jes'k flag] vij ftyk ,oa l= U;k;k/kh'k ¼,Dl dSMj½ izFke] Qrsgiqj vki vfHk;qDr jkelsod] dks fuEu vkjksi ls vkjksfir djrk gwaA ;g fd fnukad 24-5-2011 le; 11%30 ih0,e0 LFkku ijlsBk jksM ij cuh iqfy;k ogn xzke ijlsBk Fkkuk xkthiqj tuin Qrsgiqj esa vkids dCts ls ,d vnn ns'kh reapk ,duyh 315 cksj o ,d ftank dkjrwl 315 cksj dk Fkkuk/;{k jkds'k dqekj ljkst o vU; iqfyl dfEkZ;ksa us cjken fd;k ftldks j[kus dk vkids ikl dksbZ ykblsUl ugha FkkA bl izdkj vkius /kkjk&25 vk;q/k vf/kfu;e ds v/khu n.Muh; vijk/k dkfjr fd;k tks bl U;k;ky; ds izlaKku esa gSA eSa ,rn~}kjk funsZf'kr djrk gWw fd mDr vkjksi ds fy, vki yksxksa dk fopkj.k bl U;k;ky; }kjk fd;k tk;sxkA^^ "I, Ramesh Singh, Additional District and Sessions Judge (Ex. Cadre) First, Fatehpur, charge you accused, Ram Sewak, as under with the following charge:
That on 24.5.2011 at 11:30 p.m., Rakesh Kumar Saroj, Station House Officer & other police personnel recovered one country made pistol single barrel 315 bore & one live cartridge 315 bore from your possession at the culvert on Parsetha Road within Village- Parsetha, P.S.- Ghazipur, District-Fatehpur, regarding possession of which you had no licence. Accordingly, you have committed offence punishable u/s.25 Arms Act, which is in the cognizance of this Court.
I, hereby, direct that you all will be tried by this Court for the above charge."
Charge against Rameshwar:
^^eSa jes'k flag] vij ftyk ,oa l= U;k;k/kh'k ¼,Dl dSMj½ izFke] Qrsgiqj vki vfHk;qDr jkes'oj dsoV] dks fuEu vkjksi ls vkjksfir djrk gwaA ;g fd fnukad 30-5-2011 le; 22%20 cts jkf= LFkku cxhpk jke'kadj o jkelsod dsoV ogn xzke fu/kokiqj etjs ijlsBk Fkkuk xkthiqj tuin Qrsgiqj esa vkids dCts ls ,d vnn ,l0ch0ch0,y0 xu nslh 12 cksj o pkj vnn ftank dkjrwl 12 cksj dk Fkkuk/;{k jkds'k dqekj ljkst o vU; iqfyl dfeZ;ksa us cjken fd;k ftldks j[kus dk vkids ikl dksbZ ykblsUl ugha FkkA bl izdkj vkius /kkjk&25 vk;q/k vf/kfu;e ds v/khu n.Muh; vijk/k dkfjr fd;k tks bl U;k;ky; ds izlaKku esa gSA eSa ,rn~}kjk funsZf'kr djrk gWw fd mDr vkjksi ds fy, vki yksxksa dk fopkj.k bl U;k;ky; }kjk fd;k tk;sxkA^^ "I, Ramesh Singh, Additional District and Sessions Judge (Ex. Cadre) First, Fatehpur, charge you accused, Rameshwar Kewat, as under with the following charge:
That on 30.5.2011 at 22:20 p.m., Rakesh Kumar Saroj, Station House Officer & other police personnel recovered one country made S.B.B.L. Gun 12 bore & four live cartridges 12 bore from your possession in the grove of Ram Shankar & Ram Sewak Kewat within Village-Nidhwapur Majre Parsetha, P.S.-Ghazipur, District-Fatehpur, regarding possession of which you had no licence. Accordingly, you have committed offence punishable u/s.25 Arms Act, which is in the cognizance of this Court.
I, hereby, direct that you all will be tried by this Court for the above charge."
Charge against Dalpat:
^^eSa jes'k flag] vij ftyk ,oa l= U;k;k/kh'k ¼,Dl dSMj½ izFke] Qrsgiqj vki vfHk;qDr nyir dsoV] dks fuEu vkjksi ls vkjksfir djrk gwaA ;g fd fnukad 30-5-2011 le; 22%20 cts jkf= LFkku cxhpk jke'kadj o jkelsod dsoV ogn xzke fu/kokiqj etjs ijlsBk Fkkuk xkthiqj tuin Qrsgiqj esa vkids dCts ls ,d vnn reapk nslh 315] ,d vnn ftank dkjrwl 315 cksj ,oa ,d vnn [kks[kk dkjrwl 315 cksj ds Fkkuk/;{k jkds'k dqekj ljkst o vU; iqfyl dfeZ;ksa us cjken fd;k ftldks j[kus dk vkids ikl dksbZ ykblsUl ugha FkkA bl izdkj vkius /kkjk&25 vk;q/k vf/kfu;e ds v/khu n.Muh; vijk/k dkfjr fd;k tks bl U;k;ky; ds izlaKku esa gSA eSa ,rn~}kjk funsZf'kr djrk gWw fd mDr vkjksi ds fy, vki yksxksa dk fopkj.k bl U;k;ky; }kjk fd;k tk;sxkA "I, Ramesh Singh, Additional District and Sessions Judge (Ex. Cadre) First, Fatehpur, charge you accused, Dalpat Kewat, as under with the following charge:
That on 30.5.2011 at 22:20 p.m., Rakesh Kumar Saroj, Station House Officer & other police personnel recovered one country made pistol 315, one live cartridge 315 bore & one cartridge shell 315 bore from your possession in the grove of Ram Shankar & Ram Sewak Kewat within Village-Nidhwapur Majre Parsetha, P.S.-Ghazipur, District-Fatehpur, regarding possession of which you had no licence. Accordingly, you have committed offence punishable u/s.25 Arms Act, which is in the cognizance of this Court.
I, hereby, direct that you all will be tried by this Court for the above charge."
Charge against Ram Narain:
^^eSa jes'k flag] vij ftyk ,oa l= U;k;k/kh'k ¼,Dl dSMj½ izFke] Qrsgiqj vki vfHk;qDr jkeujk;u dsoV] dks fuEu vkjksi ls vkjksfir djrk gwaA ;g fd fnukad 30-5-2011 le; 22%20 cts jkf= LFkku cxhpk jke'kadj o jkelsod dsoV ogn xzke fu/kokiqj etjs ijlsBk Fkkuk xkthiqj tuin Qrsgiqj esa vkids dCts ls ,d vnn reapk nslh 315 cksj] o ,d vnn ftank dkjrwl 315 cksj dk Fkkuk/;{k jkds'k dqekj ljkst o vU; iqfyl dfeZ;ksa us cjken fd;k ftldks j[kus dk vkids ikl dksbZ ykblsUl ugha FkkA bl izdkj vkius /kkjk&25 vk;q/k vf/kfu;e ds v/khu n.Muh; vijk/k dkfjr fd;k tks bl U;k;ky; ds izlaKku esa gSA eSa ,rn~}kjk funsZf'kr djrk gWw fd mDr vkjksi ds fy, vki yksxksa dk fopkj.k bl U;k;ky; }kjk fd;k tk;sxkA^^ "I, Ramesh Singh, Additional District and Sessions Judge (Ex. Cadre) First, Fatehpur, charge you accused, Ram Narain Kewat, as under with the following charge:
That on 30.5.2011 at 22:20 p.m., Rakesh Kumar Saroj, Station House Officer & other police personnel recovered one country made pistol 315 bore & one live cartridge 315 bore from your possession in the grove of Ram Shankar & Ram Sewak Kewat within Village-Nidhwapur Majre Parsetha, P.S.- Ghazipur, District- Fatehpur, regarding possession of which you had no licence. Accordingly, you have committed offence punishable u/s.25 Arms Act, which is in the cognizance of this Court.
I, hereby, direct that you all will be tried by this Court for the above charge."
Charge against Sukh Pal:
^^eSa jes'k flag] vij ftyk ,oa l= U;k;k/kh'k ¼,Dl dSMj½ izFke] Qrsgiqj vki vfHk;qDr lq[kiky dsoV] dks fuEu vkjksi ls vkjksfir djrk gwaA ;g fd fnukad 30-5-2011 le; 22%20 cts jkf= LFkku cxhpk jke'kadj o jkelsod dsoV ogn xzke fu/kokiqj etjs ijlsBk Fkkuk xkthiqj tuin Qrsgiqj esa vkids dCts ls ,d vnn reapk nslh 315 cksj] ,d vnn ftank dkjrwl 315 cksj o ,d vnn [kks[kk dkjrwl 315 cksj dk Fkkuk/;{k jkds'k dqekj ljkst o vU; iqfyl dfeZ;ksa us cjken fd;k ftldks j[kus dk vkids ikl dksbZ ykblsUl ugha FkkA bl izdkj vkius /kkjk&25 vk;q/k vf/kfu;e ds v/khu n.Muh; vijk/k dkfjr fd;k tks bl U;k;ky; ds izlaKku esa gSA eSa ,rn~}kjk funsZf'kr djrk gWw fd mDr vkjksi ds fy, vki yksxksa dk fopkj.k bl U;k;ky; }kjk fd;k tk;sxkA^^ "I, Ramesh Singh, Additional District and Sessions Judge (Ex. Cadre) First, Fatehpur, charge you accused, Sukh Pal Kewat, as under with the following charge:
That on 30.5.2011 at 22:20 p.m., Rakesh Kumar Saroj, Station House Officer & other police personnel recovered one country made pistol 315 bore, one live cartridge 315 bore & one cartridge shell 315 bore from your possession in the grove of Ram Shankar & Ram Sewak Kewat within Village-Nidhwapur Majre Parsetha, P.S.-Ghazipur, District-Fatehpur, regarding possession of which you had no licence. Accordingly, you have committed offence punishable u/s.25 Arms Act, which is in the cognizance of this Court.
I, hereby, direct that you all will be tried by this Court for the above charge."
19. Similarly, against accused appellant Munna @ Surendra Pal charge under Section 30 of Act, 1959 was framed, which reads as under:
^^eSa jes'k flag] vij ftyk ,oa l= U;k;k/kh'k ¼,Dl dSMj½ izFke] Qrsgiqj vki vfHk;qDr eqUuk mQZ lqjsUnziky dsoV] dks fuEu vkjksi ls vkjksfir djrk gwaA ;g fd fnukad 30-5-2011 le; 22%20 cts jkf= LFkku cxhpk jke'kadj o jkelsod dsoV ogn xzke fu/kokiqj etjs ijlsBk Fkkuk xkthiqj tuin Qrsgiqj esa vkids dCts ls ,d vnn Mh0ch0ch0,y0 xu uECkj&15292 lh@4 o nks vnn ftank dkjrwl 12 cksj rFkk igus gq, iSaV dh ck;ha tsc ls ykblsUl uEcj&888@Mh-,e- ¼,Q½ rFkk nks vnn ftank dkjrwl 12 cksj uEcj ,d ds Fkkuk/;{k jkds'k dqekj ljkst o vU; iqfyl dfeZ;ksa us cjken fd;kA bl izdkj vkius /kkjk&30 vk;q/k vf/kfu;e ds v/khu n.Muh; vijk/k dkfjr fd;k tks bl U;k;ky; ds izlaKku esa gSA eSa ,rn~}kjk funsZf'kr djrk gWw fd mDr vkjksi ds fy, vki yksxksa dk fopkj.k bl U;k;ky; }kjk fd;k tk;sxkA^^ "I, Ramesh Singh, Additional District and Sessions Judge (Ex. Cadre) First, Fatehpur, charge you accused, Munna @ Surendra Pal Kewat, as under with the following charge:
That on 30.5.2011 at 22:20 p.m. and in the grove of Ram Shankar & Ram Sewak Kewat within Village-Nidhwapur Majre Parsetha, P.S.-Ghazipur, District-Fatehpur, Rakesh Kumar Saroj, Station House Officer & other police personnel recovered one D.B.B.L. Gun No.15292 C/4 & two live cartridges 12 bore from your possession and Licence no.888/D.M.(F.) & two original live cartridges 12 bore from the left pocket of the trousers worn. Accordingly, you have committed offence punishable u/s.30 Arms Act, which is in the cognizance of this Court.
I, hereby, direct that you all will be tried by this Court for the above charge."
20. All the accused pleaded not guilty and claimed to be tried.
21. In the meantime, reports of Ballistic Expert from Forensic Science Laboratory, Lucknow were received which have been marked as Ex.Ka-45, ka-46, ka-47, ka-48, ka-49, ka-50 and ka-51. From the aforesaid ballistic reports it appear that both the deceased had been done to death by use of firearms. According to ballistic and forensic reports, bullets, cartridges and pellets contained human blood found on the clothes of both the deceased as well as sample of blood stained soil contained human blood.
22. Here it would be relevant to give a chart mentioning weapons possessed and used by individual accused appellant.
S. No. Cri. Appeal No. Appellants' Name Sentence imposed Weapons 1 5708 of 2017 Ram Narayan @ Lal 302 Life imprisonment R.I. + 20,000/-
147- 2 years R.I. + 5000/-
148- 3 years R.I. + 5000/-
25 Arms Act- 1 year R.I. + 1000/-
One country made pistol 315 bore, 1 live cartridge 2 5947 of 2017 Ram Sewak 25 Arms Act One country made pistol 315 bore, one live cartridge 3 5752 of 2017 Dalpat 302 Life imprisonment R.I. + 20,000/-
147- 2 years R.I. + 5000/-
148- 3 years R.I. + 5000/-
25 Arms Act- 1 year R.I. + 1000/-
One country made pistol 315 bore, one live cartridge and one empty cartridge 4 5950 of 2017
1. Ashish 302 Life imprisonment R.I. + 20,000/-
147- 2 years R.I. + 5000/-
148- 3 years R.I. + 5000/-
-
42. Ram Sewak 302 Life imprisonment R.I. + 20,000/-
147- 2 years R.I. + 5000/-
148- 3 years R.I. + 5000/-
25 Arms Act- 1 year R.I. + 1000/-
One country made pistol with one live cartridge of 315 bore 5 5986 of 2017
1. Jagmohan @ Munna 302 Life imprisonment R.I. + 20,000/-
147- 2 years R.I. + 5000/-
148- 3 years R.I. + 5000/-
52. Sukhpal 302 Life imprisonment R.I. + 20,000/-
147- 2 years R.I. + 5000/-
148- 3 years R.I. + 5000/-
25 Arms Act- 1 year R.I. + 1000/-
Country made pistol 315 bore, 1 live cartridge,1 empty cartridge 6 6068 of 2017 Rameshwar Kewat 302 Life imprisonment R.I. + 20,000/-
147- 2 years R.I. + 5000/-
148- 3 years R.I. + 5000/-
25 Arms Act- 1 year R.I. + 1000/-
SBBL gun 12 bore, 4 live cartridges 12 bore 7 6116 of 2017 Badri Vishal Pal 302 Life imprisonment R.I. + 20,000/-
147- 2 years R.I. + 5000/-
148- 3 years R.I. + 5000/-
25 Arms Act- 1 year R.I. + 1000/-
Country made pistol 315 bore, 1 live cartridge.
87192 of 2017 Munna @ Surendra Pal Kewat 302 Life imprisonment R.I. + 20,000/-
147- 2 years R.I. + 5000/-
148- 3 years R.I. + 5000/-
30 Arms Act - 6 months + 1000/-
DBBL gun No. 15292 C/4 + 2 live cartridges + Licence No. 888/DM(F)
23. In order to substantiate and prove the guilt of accused appellants, prosecution examined as many as 8 witnesses, out of whom PW-1, Rajesh Kumar and PW-2, Sohan are witnesses of fact; PW-3, Dr. K.V. Chaudhary had conducted post mortem on the dead bodies of deceased Babu and Jagannath and has proved post mortem report of deceased as Ex.Ka-3 and Ka-4 respectively; PW-4, S.I. Rakesh Kumar is the first I.O. who had rushed to the spot after registration of case and had taken in possession country made pistol and bullets and has also proved recovery memos Ex.Ka-4, in respect of weapons and cartridges, Ex.Ka-5 and Ex.Ka-6 in respect of sample of blood stained soil and simple soil. Besides, inquest report Ex.Ka-7 and Ka-12, in respect of Babu and Jagannath respectively have been proved by this witness. PW-4 has proved relevant papers Ex.Ka-7 to Ka-11 and Ka-13 to Ka-16 relating to sending the dead bodies along with constables to District Hospital for autopsy. Site plan, Ex.Ka-17 has also been proved by him. Recovery memo, Ex.Ka-18 in respect of arms and bullets recovered from Badri Vishal Pal and Ram Sewak has been proved by him. PW-4 has also proved charge sheet, Ex.Ka-19 against accused appellants, recovery memo, Ex.Ka-20 with respect to DBBL gun and licence of Jagmohan; application Ex.Ka-21 for taking into possession of DBBL gun from Ajay Gun House and charge sheet Ex.Ka-22 against Jagmohan @ Munna. Material Exhibits 4 to 68 pertaining to blood stained and simple soil, various arms and ammunitions recovered from the possession of appellants have been proved by this witness.
24. PW-5, Head Moharrir Abdul Aziz has proved the Chik FIR Ex.Ka-23 and copy of G.D. Entry, Ex.Ka-24. He has also proved the Chik FIR, Ex.Ka-25 in respect of offences under Section 30 and 25 of Act, 1959.
25. PW-6, S.I. Doodhnath Nishad, I.O. of the cases under Section 25 of Act, 1959 had proved site plan, Ex.Ka-27, charge sheet against the accused appellant Ex.Ka-28 to Ex.Ka-31.
26. PW-7, Constable Moharrir Kunj Bihari scribe of Chik FIR in respect of case under Section 25 and 30 of Act, 1959 has proved chik FIR, Ex.Ka-32 and copy of G.D., Ex.Ka-33.
27. PW-8, S.I. Daya Shanker Tiwari, I.O. of the offence under Section 25 of Act, 1959 has proved the site plan of place of occurrence, Ex.Ka-34 as also the sanction of District Magistrate for launching prosecution marked as Ex.Ka-37, Ka-39, Ka-41 and Ka-43.
28. After closure of prosecution evidence, accused appellants were examined by Court under Section 313 Cr.P.C.
29. Accused appellant Munna @ Surendra Pal pleaded ignorance about the incident and stated that he has been arrested from his house on 22.5.2011. He denied recovery of any country made pistol or live or empty cartridge. He has stated that he was prosecuted because of enmity.
30. Accused appellant Rameshwar in his statement under Section 313 Cr.P.C. has admitted existence of enmity due to Gram Pradhan election. Initially, he stated that Rajesh was present on the roof of Tubewell but later on, he pleaded ignorance saying that he was sleeping in his house. According to him, he was not arrested nor anything was recovered from him and he was called by Inspector Sanjay. He has denied any recovery from him. He stated that at the time of occurrence he was present inside his house and did not see anyone. He has denied of any enmity with Sohan. He stated that he is not aware whether he had been implicated on account of long drawn enmity or for any other reason.
31. Accused appellant Dalpat Kewat has also stated that he was unaware of any incident and at that time, he was present in his house. According to him, police had arrested him from his house and challaned in the case. About recovery, he has stated that allegations are wrong and no recovery was made from him. He has admitted that there existed enmity of Pradhan's election and that he has been falsely implicated. He claims to have been implicated on account of party factionalism.
32. Accused appellant Jagmohan has stated that he was not at his house at the time of incident. He has admitted election enmity. He was Gram Pradhan since 2005 to 2010 and enmity existed on that account. Regarding quarrel at the time of Holi and election, this accused has stated that no quarrel had taken place with him, rather it had taken place amongst Munna and others on account of enmity of Pradhan's election.
33. Accused appellant Sukhpal has stated that at the time of incident he was inside his house and is not aware of incident that has taken place at Tubewell. He has denied of any recovery from his possession and claimed to have been arrested from his house. Alleged recovery is fabricated. According to him, he bore no enmity with nephew Rajesh Kumar on account of quarrel taken place at the time of election and Holi. He stated that he is innocent and has been implicated on account of election enmity and factionalism.
34. Accused appellant Ashish has also stated that he was at his house at the time of incident and is not aware of the incident. He bore no enmity with Rajesh. Enmity between PW-2 Sohan and Surendra and others existed on account of Pradhan's election. He stated to have been implicated falsely on account of election of Pradhan and parti bandi.
35. Accused Ram Sewak has stated that he was not aware of the incident taken place at the Government Tubewell since on 19.5.2011 he had gone in barat of his son Ashish and on 20.5.2011 at 9 p.m. they returned and were in their houses. He stated that there was no enmity with his nephew and quarrel had taken place with Surendra and others wherein he was a surety. He has denied of any recovery having been made from him and said that alleged recovery is concocted. He has denied enmity with nephew Rajesh Kumar and has admitted that enmity of PW-1 was with Surendera and others. He has stated that due to jealousy Informant had falsely implicated in this case as they could not bear the progress of this accused. One tractor had been given by Government along with a cheque of Rs. 10,000/-. He has stated that he is innocent and chronic patient of Asthma.
36. Accused appellant Ram Narayan has also stated ignorance about the incident and stated that on that night he had come back from the marriage of his nephew and was at his house at the time of occurrence. Police has shown forged recovery against him and that he has been arrested from his house. He has admitted about quarrel at the time of Holi. Enmity was on account of party bandi. He claims to have been implicated on account of enmity.
37. Accused appellant Badri Vishal Pal has stated that at the time of occurrence he was at his house and no recovery was made from him. Alleged recovery is forged. Rajesh had eve teased his wife regarding which a Panchayat took place and on that account there has been an enmity between them. The recovery is stated to have been forged one. He claims that he is implicated on account of aforesaid enmity.
38. On appraisal of prosecution evidence as well as material available on record and after hearing learned counsel for parties, learned Trial Court recorded verdict of conviction and sentenced accused appellants as detailed in paragraph 1 of this judgement.
39. In order to record finding of guilt against accused-appellants, Trial Court has given following reasons:
(1) PW-1, Rajesh Kumar, is the eye witness of the incident. Accused-appellants were well known to him since all of them except Badri Vishal, were residents of the same village wherein PW-1 was residing and Badri Vishal was resident of Village Parsetha, a nearby village, and also known to PW-1.
(2) The death of two deceased Jagannath and Babu has taken place near Tubewell in the night of 20 May, 2011 and body was recovered and Panchayatnama was prepared verifying recovery of body near Tubewell. Therefore, date, time and place of the death of two deceased is duly proved.
(3) The motive was enmity caused due to election of Gram Pradhan in respect whereto there was a scuffle between some of the accused-appellants with the family members of deceased at the time of Holi.
(4) In the night of incident, there was moonlight which helped PW-1 in identifying accused-appellants. Besides, when accused-appellants exhorted Jagannath and Babu who were sleeping, from their voice also PW-1 recognized accused-appellants who were already known to him.
(5) The narration of incident tallied with the manner in which bodies of deceased were recovered from the field near Tubewell.
(6) PW-1 is not a chance witness since his father and neighbour had come to sleep at Tubewell to take care of their crop standing in the field which were near Tubewell and PW-1, being son of Jagannath, could have accompanied his father and this is a natural conduct.
(7) Multiple firearm injuries on the bodies of deceased fortify statement of PW-1 that accused-appellants collectively opened indiscriminate fire upon the two deceased and murdered them.
(8) Statement of PW-1 is corroborated by PW-2 Sohan who arrived at the place of incident, hearing sound of gunshot fires and along with him some other villagers also arrived at the place along with Lathi, Danda and torch and in the light of torch and moonlight PW-2 saw accused-appellants carrying firearms who threatened PW-2 and other villagers to run away else they will also be done to death. Accused-appellants also opened fires in air. PW-2 and other villagers saved themselves by coming back to their house.
(9) There is no delay in lodging of F.I.R. by PW-1 whose close relative, i.e., father and one neighbour were murdered by nine accused-appellants carrying firearms with them and on account of the incident and apprehension of life, Informant PW-1 remained in hide till morning and thereafter came to police station for lodging report and this satisfactorily explained delay, if any.
(10) Recovery of firearms when accused-appellants were arrested was proved by PW-4, i.e., I.O. and he also proved other relevant documents. Minor errors in investigation pointed out by defence were not material to dislodge otherwise trustworthy ocular version of witnesses corroborated by medical report showing the manner of death.
(11) Five firearm injuries were found on the body of Jagannath and three bullets were recovered from his body and seven firearm injuries were found on the body of Babu and three bullets were recovered from his body which show that before their death, indiscriminate firing took place in which they sustained multiple firearm injuries mostly on the vital parts, causing immediate death. Therefore, involvement of a large number of persons who opened rapid firing causing multiple firearm injuries to these two deceased is duly proved from the post-mortem report which has been proved by PW-3.
(12) The defence that deceased were Police Informers and therefore notorious dacoits in the area committed murder was not proved by defence by adducing any evidence.
(13) All the accused-appellants, except Ashish, were carrying firearms. Firearm of Jagmohan @ Munna was his licensed DBBL Gun.
(14) The mere fact that with regard to recovery of firearms from accused-appellants, only Police witnesses have given evidence and there is no independent witness, it cannot be said that the evidence of police officials cannot be relied or is untrustworthy.
(15) In the statement of Section 313, accused-appellants have broadly admitted enmity on account of Party-Bandi and election dispute.
(16) Ashish is the son of Ram Sewak and their defence that they were not present since marriage of Ashish was solemnized on 19.05.2011 has been disbelieved on the ground that incident took place on 20.05.2011 at 11:00 p.m. and by that time they had returned to their village after solemnizing marriage and no evidence was adduced that they were present elsewhere and not at their house in the night of incident and at place of incident at 11:00 p.m. (17) In fact Ram Sewak admitted that on 20.5.2011 at 9:00 p.m. he returned and was at his house. Similarly Ashish also stated that he was at his house therefore the factum that a day earlier marriage took place was of no consequence.
(18) Ex.A.15 Forensic Report, Ballistic Experts Report shows that the bullet EC1, EC2 were fired from country made pistol recovered from Badri Vishal; bullet mark EC4 was fired from country made pistol recovered from Sukhpal; bullet mark E19 was fired from the recovered country made pistol marked as 5/11.
(19) The entire evidence show and prove the offence of accused-appellants under the sections as noticed above and prosecution has proved its case beyond reasonable doubt.
40. It is the above judgment of conviction and sentence, which has been challenged by accused-appellants in the aforementioned appeals before this Court.
41. We have heard Sri V.P. Srivastava, Senior Advocate assisted by Sri Phool Singh Yadav for accused appellant Jagmohan in Crl. Appeal No. 5986 of 2017 and Ram Narayan @ Lala in Crl. Appeal No. 5708 of 2017; Sri Mangla Prasad Rai, Senior Advocate assisted by Sri Ashok Kumar Rai for Ram Sewak in Crl. Appeal No. 5947 of 2017 and Ashish in Crl. Appeal No. 5950 of 2017; Sri Purshottam Dixit, Advocate for Dalpat in Crl. Appeal No. 5752 of 2017 and Munna @ Surendra Pal Kewat in Crl. Appeal No. 7192 of 2017; Sri Phool Singh Yadav, Advocate for Remeshwar in Crl. Appeal No. 6068 of 2017 and Sukhpal in Crl. Appeal No. 5986 of 2017; Sri Akhilesh Kumar, Advocate for Badri Vishal Pal in Crl. Appeal No. 6116 of 2017; Sri Sudhir Bharti, Advocate for complainant and Sri Syed Ali Murtaza, learned A.G.A. on behalf of State.
42. Broadly the arguments advanced by learned counsel for appellants are:
(1) The presence of PW-1, who is the star witness of the entire case, itself is doubtful, inasmuch as there are serious contradictions in his statement showing that the statement has been procured and he is not actually an eye-witness of the incident.
(2) The bullets recovered from the body of deceased have not been found to have been fired from the firearms allegedly recovered from accused-appellants and forensic report in this regard has failed to prove this fact.
(3) Informant PW-1 himself admits that he was sleeping on the roof of tubewell and there was sufficient distance between him and the place where Jagannath and Babu are said to have been sleeping, hence it was not possible for accused-appellants to identify the persons who committed murder hence accused-appellants have been implicated only on the basis of suspicion and alleged enmity.
(4) PW-2 is not an eye-witness of the incident as admittedly as per his own version he reached the place of incident subsequently and his statement contains several contradictions.
(5) Site-plan has not shown as to where deceased and Informant were sleeping.
(6) There was no stairs or otherwise arrangement to climb the roof of Tubewell Kothari, hence PW-1's statement that he was sleeping on the roof of Tubewell cannot be believed.
(7) It is a case where virtually there is no credible evidence to prove the guilt of appellants and only on conjunctures they have been convicted though prosecution miserably failed to prove its case beyond reasonable doubt.
43. It may be noticed at this stage that learned counsel for parties have not addressed this Court on the question of conviction and sentence of accused appellants Rameshwar, Dalpat, Ram Sewak, Badri Vishal Pal, Ram Narayan and Sukhpal, under Section 25 of Act, 1959 and their arguments are confined in respect of conviction of all accused appellants under Sections 302/149; 147 and 148 IPC. One of the appellants, Munna @ Surendra Pal has been convicted and sentenced under Section 30 of Act, 1959 and on this aspect also we have not been addressed at all.
44. Learned A.G.A., on the contrary, submitted that it is a straight case where accused-appellants collected with an intention to kill Jagannath and Babu, carrying firearms with them at around 11:00 p.m., they attacked both of them, opened rapid and indiscriminate fires causing their death on the spot. PW-1 son of one of the deceased who was present on the site, sleeping on the roof of Tubewell is eye witness to the entire incident. All the accused-appellants were very well known to him, there was no difficulty in identification of accused-appellants by Informant, in the night when there was sufficient moon light and nothing has been extracted in cross-examination to discredit ocular version of Informant, PW-1. The factum that accused-appellants were present at the place of incident on the date and time as stated by PW-1 is fortified by the statement of PW-2 who reached the place of incident, hearing firing sound, and saw accused-appellants present at the place of incident with firearms, who also threatened PW-2 and other villagers who have reached the place of incident on hearing firing, that they should go back else they will also face the same consequence and afraid of such threats, PW-2 and other villagers returned. Thus the presence of accused-appellants along with firearms at the place, on the date and time, stated by Informant to commit murder of Jagannath and Babu, is duly fortified by the statement of PW-2. The post-mortem report also fortify that the two deceased sustained multiple firearm injuries and three bullets each, from the bodies of two deceased were recovered which also fortify the prosecution story as narrated by eye-witness PW-1. The enmity between deceased and accused-appellants is also writ large hence it is a straight case of hit and run and Trial Court has rightly convicted accused-appellants holding that prosecution has successfully proved its case beyond reasonable doubt and the judgment warrants no interference.
45. We have heard the counsel for the parties and peruse the record.
46. First of all we may notice the facts which are evident from record and in respect whereof virtually learned counsel for the appellants could not advance any substantive argument.
(1) The first is that Jagannath and Babu were found murdered, sustaining multiple fire injuries, in the night of 20/21st May, 2011 and their bodies were found in the field, near Tubewell. The body of Babu was found around 25 paces, on west from Tubewell, in a field of one Devraj while body of Jagannath was found near Tubewell in his own field.
(2) The body of both deceased had multiple firearm injuries and as per post-mortem report, proved by PW-3, three bullets from body of each of the deceased were recovered at the time of post-mortem.
(3) The murder was committed at the place where bodies were found.
(4) Firearms were recovered from seven accused-appellants at the time of arrest and the licensed DBBL Gun of accused-appellant Jagmohan @ Munna on his information was recovered from a Firearm Licensee where he had deposited.
(5) F.I.R. was lodged by PW-1 Rajesh Kumar who is the son of deceased Jagannath and neighbour of another deceased Babu, at 6:30 a.m. on 21st May, 2011 at Police Station Ghazipur, District Fatehpur.
(6) The distance of the place of incident and police station is about eight kilometer.
(7) As per PW-3, Doctor, who conducted autopsy, both the deceased may have died after 2-3 hours of taking meals.
(8) Both the bodies were recovered at a distance of 10-20 paces to each other.
(9) The night of 20-21.5.2011 (being the Tithi Tritiya/Chaturthi of Krishna Paksha) had moon light.
(10) All the accused-appellants are residents of village Nidhwapur except Badri Vishal who is resident of Majre Parsetha.
47. Now in this backdrop, we have to examine, (i) whether the two deceased have been murdered by accused-appellants as claimed by prosecution; (ii) is there sufficient evidence to sustain their conviction and (iii) can it be said that the prosecution has proved its case beyond reasonable doubt and Trial Court has rightly convicted accused-appellants or there is any possibility that the offence may have been committed by somebody else and the complicity of all the accused-appellants or one or more of them is doubtful.
48. The prosecution case is broadly founded on the ocular testimony of PW-1 who claims to be present at the time and place of incident and is eye-witness of the entire incident. PW-2 who is another witness of fact has supported some part of the statement of PW-1 and these are the two principal witnesses whose evidence has to be examined threadbare to find out whether their deposition is trustworthy so as to sustain conviction of accused-appellants or not.
49. PW-1 has stated that in the night of 20.05.2011, at around 11:00 p.m., he was present on the roof of Tubewell. His father Jagannath and Babu were sleeping near Tubewell on katheri. There was enmity between accused-appellants and family of PW-1 on account of election of Gram Pradhan and at the time of Holi there was an incident of maar-peet between family members of Informant and accused-appellants. At around 11:00 a.m., when Informant was lying on the roof of Tubewell, Jagmohan @ Munna came with his licensed DBBL gun and Rameshwar and others were carrying illegal firearms. They woke up Informant's father and Babu, who under fear, tried to run away to save them but caught by accused-appellants and they fired rapidly from the firearms carrying with them causing immediate death of Jagannath, father of Informant and Babu. PW-1 silently saw incident in the moon light from the roof of Tubewell and recognized every accused appellant very well. Hearing the firing, some villagers namely Ram Bihari, Ram Sajivan and Jai Karan and others arrived there and saw accused-appellants with firearms. They challenged accused-appellants whereupon accused-appellants opened fire in air and threatened villagers to run away else they will also face the same consequences. Accused-appellants continued to roam and surround village in the night. At around 4:00 a.m. they left administering warning that if anyone lodge F.I.R. or give evidence against them, would meet the same fate. They ran away towards jungle. Thereafter Informant came down of the roof, went to his village and explained the incident to family members who reached the place of incident immediately. Thereafter Informant and Sohan, PW-2, in a secret manner, reached Police Station by Cycle and lodge report. PW-1 stated that the crop of Moong (pulse) and Bhindi (Lady Finger) was standing in the field of his father Jagannath and Babu near Tubewell. They had gone in the night to stay there for protection of the said crop. One of the accused-appellant, Rameshwar also had a criminal history of having murdered Shamsher son of Chandrapal wherein he was convicted and sentenced to life imprisonment. The place of incident is not at much distance from the house of Informant. In cross-examination he has said that his residence is about 200 meters from the place of incident. Besides Informant and his father, who were present at the Tubewell for protection of their crop, other family members who were at residence were three ladies, four minor girls, and a younger brother of Informant, aged about 14 years. Three other brothers of Informant were at Mumbai and two nephews were at their grand maternal parents house. Informant's field is only about 50 meters from Tubewell. In fact Tubewell itself was installed in the field of Informant which is Government Tubewell and not a private Tubewell. The field in which Tubewell was installed, at the time of incident, there was no crop. Informant's another field was around 20 meters from Tubewell and third field was around 50 meters from the Tubewell. In both these fields crop of moong and bhindi was standing. It was sown about two months prior to the date of incident. The area of field of Informant which is around 20 meters from Tubewell is about 7 or 8 Biswa and in the vicinity there is a field of Sikandar son of Ghanshyam who is in relation, grand-father of Informant. Therein also Informant has share of about 7-8 Biswa. Another field which is about 50 meters from Tubewell, had the area of 1½ bigha and Informant has half share therein while remaining half is of Sikandar. Babu was residing around 20-25 meters from the residence of Informant. He (Informant) and his father took food around 10:00 and then came at Tubewell for protection of their crop where Babu also arrived. Informant's father was sleeping about 2 meters from Tubewell on a katheri and Babu was lying on the right side of Informant's father. He also said that at the time of Holi, his father, Babu, Ratandev, Jagatpal, Ram Swaroop and Ram Sanehi collectively assaulted accused-appellant Jagmohan and his wife Raju as also Shiv Balak, father of Jagmohan with lathi and danda. Height of roof of Tubewell would be around 11 feet and there was no staircase to reach the roof. At the time of incident, Informant was not sleeping but only lying on the roof and his father and Babu were clearly visible from that place. He came down from the roof at around 4:00 am in the morning and saw dead bodies of his father and Babu. After sometime, others also reached the place.
50. However, in cross-examination, at one stage, he has also said that at the time of incident he was lying on the roof and had not seen accused-appellants Rameshwar, Jagmohan and Sukhlal. In cross-examination, he has further explained that his father had some dispute with Munna Dalpat, Ashish and Ram Sewak. Babu also had dispute with the said persons. He reiterated this fact when denying suggestion that his father and Babu had no dispute/quarrel with Munna, Dalpat, Ashish and Ram Sewak. Jagannath, Informant's father, contested election of Gram Pradhan in which Ram Sewak was also one of the contestants. It is also said in the cross-examination that near the place of incident, there situated fields of Raja Ram, Devram, Ram Sajivan, Jagannath, Ram Bali, Ram Sagar, Braj Bhushan etc. and they had also grown crops of Moong and Bhindi and used to go to their fields for protection of their crop. Informant and deceased had gone to protect crop from animals. For the fear of insects etc. Informant went on the roof of Tubewell while Babu and his father went to sleep about 10 paces from Tubewell on North Western side, on a Katheri. The presence of Informant on the roof of Tubewell has been seriously contested by appellants on the ground that nothing has been brought on record to show that there was no means to reach on roof of Tubewell hence it could not have been probable to think that Informant was lying on the roof of Tubewell. This fact that there was no staircase for reaching the Tubewell roof was admitted by Informant in his cross-examination where he has said as under:-
^^V~;wcosy ij dksbZ lhM+h ugha Fkh vkSj u xkao ls dksbZ lhM+h exkbZ xbZA^^
51. It is also seriously argued that there was a big iron cover over Tubewell roof and hence there could not have been sufficient space on the roof allowing anyone to sleep, therefore basic contention of Informant that he had gone to sleep on the roof of Tubewell is wholly untrustworthy.
52. Regarding information that Informant and his father used to go to the field for protection of crop, Informant categorically said that this fact was known to everybody that they daily go to the field for protection of crop. This fact stated by Informant reads as under:
^^?kVuk ls igys ls ge yksx Qly dh j[kokyh ds fy, blh izdkj tkrs jgrs FksA ?kVuk ds Ms<+ ekg iwoZ ls ge yksx Qly dh j[kokyh ds fy, tk;k djrs FksA xkao ?kj ds yksxksa dks ;g ckr ekywe Fkh fd ge yksx jkst Qly dh j[kokys djus jkr eas tkrs gSA gesa o gekjs firk th oxSjg dks bl ckr dh tkudkjh Fkh fd gekjh eqUuk oxSjg ls jaft'k gSA Qly dh j[kokyh ds fy;s ge yksx ykfB;ka ysdj x;s Fks dksbZ vlygk vkfn ysdj ugha x;sA fHk.Mh vkSj ewax dh Qly ?kVuk ls nks ekg igys cksbZ xbZ FkhA tks ewax geus [ksr esa cksbZ Fkh og vkerkSj ls (emphasis added)
53. The statement of PW-1 is broadly consistent with F.I.R. version. The manner in which incident has taken place, has been stated by him very consistently without any material variation. It shows that there is no imagination or articulation of facts to fabricate a story. Statement does not narrate an incident which has not actually occurred. PW-1 very categorically has said that the accused-appellants came up with firearms, caught his father and Babu, wake up and when they tried to run to save them, accused-appellants caught them, felled on the ground and opened indiscriminate firing. He has also said that his father tried to run towards North of the Tubewell Tunki but he was caught and murdered while Babu tried to run towards West of Tubewell but around 15 paces from the Tubewell he was caught and murdered. The Informant's father was caught by four persons and Babu was caught by five persons and they fired one or two rounds from their arms.
54. Learned counsel for the appellants stated that it is unbelievable that Informant's father was sought to be attacked by accused-appellants but he took no steps to protect him and kept silence. It is argued that it is unbelievable that a son would silently witness murder of his father and would take no step to protect.
55. We find ourselves unable to agree with this contention for the reason that manner in which a person would react in a given situation differs from person to person. Informant a young man of 27 years, saw nine persons collectively coming with firearms to commit offence of murder of two persons. In such circumstances, appellant getting frightened and apprehensive for his own life, if remained in concealment, silent and simply watched the incident, it cannot be said that his conduct was unnatural or improbable. It is also conceivable that the incident made such a serious impact upon Informant that even when accused-appellants, after sometime went away from Tubewell, he could not dare to come down or to raise noise. He came down in the morning at around 4:00 a.m. when some villagers and family members of Informant also arrived at the place of incident. Accused-appellants remained surrounding the village and left early in the morning at around 4:00 a.m. after giving a threat that if anybody give evidence he would meet the same fate.
56. PW-2, Sohan, who is also resident of the same village, claimed that he reached the place of incident, hearing sound of fires, from the side of Tubewell around 11:00 p.m. On 20.5.2011, and was accompanied by some other villagers carrying lathi-danda and torch. He saw Jagannath @ Munna with double barrel licensed gun and other accused-appellants with unauthorized firearms. Accused-appellants threaten villagers and PW-2 asking them to run away or they will also face the same consequences. They also fired in air. So they went back. The PW-2 accompanied Informant to Police Station for lodging Report. This witness is not an eye witness to the incident of killing of Jagannath and Babu by accused-appellants but his version is relied to support that part of evidence of PW-1 that accused-appellants along with firearms were present at the place of incident around 11:00 p.m. on 20.5.2011 near Tubewell. PW-2 also proved the fact that they (accused-appellants) threatened villagers and PW-2 to run away or they will face the same consequences. It is argued that this fortify the statement of PW-1 about presence of accused-appellants at the place of incident along with the firearms and that they committed crime for which reason they also threatened villagers, who came near Tubewell, after hearing firing.
57. Admittedly PW-2 is not a witness even to have seen dead bodies of Jagannath and Babu in the night itself when he claims had gone to the place of incident at around 11:00 p.m. on 20.5.2011 but he saw dead bodies only in the morning when he reached place of incident. In cross-examination, however, we find that PW-2 stated, referring to his earlier statement that at 4:00 or 4:30 in the morning when he was going from his house to the place of incident, he met Rajesh coming from the place who explained the entire incident and then he came to know of what has happened. He has also stated in cross-examination that for the first time he reached the place of incident at 5:00 a.m. in the morning and reached near the dead bodies. He has also said that Rajesh explained him that the incident took place around 11:00 p.m. in the night. This part of the cross-examination of PW-2 contradicts his earlier statement that firstly he reached near the place of incident in the night itself and saw accused-appellants with firearms who threatened them and thereafter they ran away. If he had gone near the place of incident in the night itself, to claim that he for the first time reached the place of incident in the morning at 5:00 a.m. and came to know of entire incident cannot reconcile with his first statement.
58. Learned A.G.A. sought to explain that in the night PW-2 came to the place of incident but remain at a distance, due to fear of accused-appellants, who threatened villagers and PW-2. They did not reach the place of incident and what he has said further in cross-examination is regarding actual reaching the place of incident i.e. for the first time in the morning at 5:00 a.m. on 20.05.2011.
59. After going through the entire statement of PW-2, we find that in examination-in-chief he is very categorical that after hearing firing, he and other villagers, went towards Tubewell and saw accused-appellants with firearms. Therefore he reached, at least, up to the stage where from in the moon light or in the light of torch, as he claimed that he had taken, accused-appellants were visible and could threat villagers to run away and being afraid thereof PW-2 and others came back. There may be a difference of 10, 20 or 30 paces but fact remains that for the first time PW-2 reached near the place of incident in the night itself. He also knew that something wrong has happened otherwise when accused-appellants allegedly threatened that if villagers do not run away they will face the same consequences, what it would have meant to the PW-2. In cross-examination, on the contrary, his statement show as if he was not at all aware of any incident which had taken place in the night and only in the morning when PW-1 narrated the entire incident, for the first time he came to know about it and then reached the place of incident at 5:00 a.m. Therefore to rely on the statement of PW-2 to support testimony of PW-1 that accused-appellants with firearms were present at 11:00 p.m. near Tubewell and had opened fire and threatened villagers is not very safe. In our view statement of PW-2 on these aspects cannot be said to be a clear and trustworthy version to support some part of statement of PW-1 regarding what transpired in the night of 20/21.05.2011. The only supportive statement of PW-2 is that in the morning, he and other villagers reached the place of incident and found Jagannath and Babu, dead, and their bodies were lying in the fields. Therefore for answering the question, whether accused-appellants have committed the crime of murder of Babu and Jagannath, statement of PW-2, in our view, is of no help.
60. Now there remains only the statement of PW-1 which is in our view consistent in respect to all other accused-appellants except three of them. His examination-in-chief is in corroboration with F.I.R. version but then we find that in the cross-examination PW-1 himself has said that he did not saw Rameshwar, Jagmohan and Sukhpal from the place where he was lying. The relevant statement reads as under:
^^?kVuk ds le; eSa ysVk gqvk FkkA eSaus mBdj eqfYteku jkes'oj] txeksgu o lq[k Ikky dks ugha ns[kkA ?kVuk ?kfVr gksus ds ckn eSa Nr ij gh FkkA^^
61. In order to implicate Rameshwar, Jagmohan and Sukhpal for committing crime under Section 302 read with Section 147, 148, 149 IPC we find no other evidence whatsoever on record except that they were arrested by the Police and firearm was also recovered therefrom but this fact by itself cannot be relied to implicate the aforesaid three persons for taking a view that they committed crime of murder of Jagannath and Babu.
62. In respect of other accused-appellants, as we have already discussed, statement of PW-1 is very categorical. The accused-appellants being well known to Informant, there is no reason to doubt any error in recognition of accused-appellants by PW-1. With respect to recovery of firearms from accused-appellants, in fact, none of the counsel has advanced any submission whatsoever except that there is no Ballistic Report to show that bullets found in the body of deceased were actually fired from the weapons recovered from accused-appellants, therefore, Ballistic reports do not corroborate that the weapons recovered from accused-appellants were used in the crime in question. In our view, when there is an otherwise credible ocular evidence to implicate accused-appellants except above three, non-availability of such Ballistic Report by itself will not help accused-appellants and the mere fact that there is a solitary witness in the case in hand would make no difference for the reason that even a single witness, if otherwise trustworthy and credible, and Court finds no reason to disbelieve him, his statement is clear and shows truthfulness, a conviction can be sustained on the statement of such a solitary witness. It is well settled legal position that it is quality and not the quantity of witnesses, which is important. Time honoured principle is that the evidence has to be weighed and not to be counted. The test is whether evidence has a ring of truth, cogent, credible and trustworthy or otherwise.
63. In Namdev Vs. State of Maharashtra (2007) 14 SCC 150, Court has said :
"Our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence."
64. The aforesaid observations, however, are with respect to others except accused-appellants Rameshwar, Jagmohan and Sukhpal in respect whereto PW-1 himself has said that he had not seen them at the time of incident. If that be so, in the absence of any other evidence, aforesaid three accused-appellants cannot be said to be involved in the case in hand and, in our view, they have been convicted without any evidence against them. Trial Court has committed error in not looking into this aspect of the matter particularly when on this aspect no explanation has come forward on the part of prosecution, either before Court below or even before this Court.
65. With respect to conviction of accused-appellants under Section 25 of Act, 1959 i.e. Rameshwar, Dalpat, Ram Narayan and Sukhpal, we find that PW-8, who prepared site plan, Ex.ka-34, wherefrom the aforesaid accused were arrested and firearms were recovered he has proved the said document. PW-4 arrested Badri Vishal Pal and recovered one country made pistol of 315 bore in working condition and one live cartridge. He also arrested Ram Sewak and recovered one country made pistol of 315 bore in working condition and one live cartridge of 315 bore, loaded inside the weapon. PW-4 sealed country made pistols and cartridges and prepared recovery memo, Ex.ka-18. PW-4 proved recovery memo Ex.ka-18 in respect of above recovery. Thereafter, PW-4 arrested five accused-appellants namely Munna@ Surendra Pal, Rameshwar Kewat, Dalpat Kewat, Ram Narayan Kewat and Sukhpal Kewat. One DBBL gun, two live cartridges and one Licence No. 888 issued by District Magistrate, Fatehpur was recovered from possession of Munna @ Surendra Pal; one country made SBBL gun of 12 bore with four live cartridges kept in the cartridge belt was recovered from the person of Rameshwar; one country made pistol of 315 bore, one live cartridge and one empty cartridge was recovered from possession of Dalpat; one country made pistol of 315 bore and one live cartridge of 315 bore were recovered from the possession of Ram Narayan @ Lala; one country made pistol of 315 bore, one live cartridge and one empty cartridge were recovered from the possession of accused-appellant Sukhpal and recovery memos paper no. 3A/5 and 3A/7 were prepared. These documents were also proved by PW-4 in his oral deposition. Gun No. 6555 and licence no. 911 were recovered from the arms shop of Smt. Beena Singh and ferd paper no. 26 A/2 i.e. Ex.A-20 was proved by PW-4. The fire arms and ammunition recovered from accused-appellants, named above, were exhibited as 7 to 11 and 13 to 67 and all have been proved by PW-4. Neither in the cross-examination we find anything substantive to discredit evidence of PW-4 in respect of the aforesaid recovery of firearms and ammunitions nor anything has been brought to our notice to disbelieve the said evidence. The mere fact that in regard to recovery, witness is a Police Personnel, does not mean that for this reason alone if otherwise creditworthy and reliable, such evidence can be rejected. Hence, conviction and sentence of accused-appellants namely Rameshwar, Sukhpal, Dalpat Kewat, Ram Sewak, Badri Vishal Pal and Ram Narayan under Section 25 of Act, 1959 warrants no interference and deserves to be sustained. Similarly conviction and sentence of appellant Munna @ Surendra Pal under Section 30 of Act, 1959 also deserves to be sustained.
66. In view of above discussion, Criminal Appeal Nos. 5986 of 2017 and 6068 of 2017 are partly allowed. Impugned judgment dated 29.8.2017 and order dated 5.9.2017, insofar as the same relate to accused-appellants Sukhpal and Rameshwar, are set aside to the extent, they have been convicted under Section 302/149; 147 and 148 IPC. Their conviction and sentence under Section 25 of Act, 1959 by impugned judgement and order is however, confirmed. In respect of appellant Jagmohan @ Munna Nishad, impugned judgment dated 29.8.2017 and order dated 5.9.2017 are hereby also set aside in respect of his conviction under Section 302/149; 147 and 148 IPC.
67. These appellants are in jail. Accused-appellants Sukhpal and Rameshwar, if already served out sentence awarded under Section 25 of Act, 1959 and not wanted in any other case, shall be set at liberty forthwith. Accused-appellant Jagmohan @ Munna, if not wanted in any other case shall be released forthwith.
68. Criminal Appeals No. 5708 of 2017, 5947 of 2017, 5752 of 2017, 5950 of 2017, 6116 of 2017 and 7192 of 2017 are hereby dismissed. Accused-appellants Ram Narayan @ Lala, Ram Sewak, Dalpat, Ashish, Badri Vishal Pal and Munna @ Surendra Pal Kewat are in jail, shall serve out respective sentences awarded to them by Trial Court by impugned judgment and order as affirmed by this Court.
69. Keeping in view provisions of Section 437-A Cr.P.C., appellants Rameshwar, Jagmohan @ Munna Nishad and Sukhpal are hereby directed to forthwith furnish a personal bond of the sum of Rs. 10,000/- each and two reliable sureties, each of the like amount, before Trial Court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against this judgment or for grant of leave, appellants on receipt of notice thereof, shall appear before Supreme Court.
70. A copy of this judgment be sent to Trial Court by FAX for immediate compliance. Lower Court's record be also sent back along with a copy of this judgment.
Order Date :- 2.8.2019 Vandana/Saurabh