Allahabad High Court
Ashok Kumar And Another vs State Of U.P. on 13 April, 2023
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No.29 Case :- CRIMINAL APPEAL No. - 1263 of 2009 Appellant :- Ashok Kumar And Another Respondent :- State of U.P. Counsel for Appellant :- Jai Narain,Ajay Kumar Pandey,Apul Mishra,I.M.Khan,Lav Srivastava,Mayank Awasthi,Shiva Kant Awasthi Counsel for Respondent :- Govt. Advocate Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble J.J. Munir,J.
(Delivered by Justice Sunita Agarwal)
1. The present criminal appeal no.1263 of 2009 (Ashok Kumar and others vs State of U.P) is directed against the judgment and order dated 28.02.2009 in Sessions Trial no.441 of 2007, arising out of Case Crime no.302 of 1997 whereby the trial Court convicted two appellants namely Ashok Kumar and Anand Kumar under Sections 148, 302/149 IPC. The third accused Rajendra Nath Trivedi was acquitted of the charges under Sections 147, 148, 302/149 and Section 302/120B IPC. There is no appeal against acquittal. The sentence awarded to the appellants in the above noted connected appeals under Section 302/149 IPC is life imprisonment with fine of Rs.15,000/- each; the default punishment is six months additional imprisonment. Under Section 148 IPC, the appellants herein (four in number) have been convicted for two years rigorous imprisonment with fine of Rs.2000/-; the default punishment is two months additional imprisonment. All the punishment are to run concurrently. All the accused have been acquitted under Section 147 IPC. Two appellants namely Ashok Kumar and Anand Kumar have also been acquitted of the charges under Sections 147 and 302/120B IPC.
2. The accused appellants Ashok Kumar and Anand Kumar along with the acquitted accused Rajendra Nath Trivedi were chargesheeted by the Sessions Court on 06.12.2007, after committal by the order dated 17.08.2007 of the Chief Judicial Magistrate, Fatehpur.
3. The Constable Moharrir Shyam Narayan Singh examined as P.W-3 stated that the informant Shailendra Pratap Singh came to the P.S Thariaon on 22.11.1997 at around 13.00 hours and the Check report was prepared by him on the written report given by the informant. The entry in the G.D of the Check report had also been proved. About the compliance of Section 157 Cr.P.C, P.W-3 stated in his, examination in chief that the original Check report was sent to senior officials with the special report on 23.11.1997, the next day of the lodging of the FIR as the post (dak) of that date, i.e. 22.11.1997, had already been dispatched.
4. This witness was confronted on the ground that the first information report was a result of deliberation. The informant Shailendra Pratap Singh had already been killed when the evidence of the prosecution witnesses had commenced in the instant case, with the statement of P.W-1 having been recorded on 05.02.2008. P.W-1, Deshraj Singh was accompanying informant Shailendra Pratap Singh to the Police Station for lodging of the FIR. In his examination in chief, this witness (P.W-1) though stated that the first information report of the incident was lodged by Shailendra Pratap Singh but had denied that he had seen the accused appellants killing the deceased. He had also shifted the time of the incident to around 3.00-4.00 p.m. This witness was declared hostile and, in his cross examination, he had denied his previous statement recorded on 21.11.2005 in S.T no.01 of 1999, wherein he had proved the written report as Exhibit Ka-1, being in the handwriting and signature of informant Shailendra Pratap. It may be noted that Exhibit Ka-1, the written report which was proved by Deshraj Singh (P.W-1) in S.T no.01 of 1999, arising out of the same incident, had been brought on record of the instant case.
5. With the aforesaid documents and the testimony of P.W-3, Check writer, the factum of the lodging of the written report by Shailendra Pratap Singh s/o deceased Malkhan Singh cannot be disputed.
6. P.W-2, doctor R.K. Mishra, in his examination in chief, proved that he conducted the post mortem on 23.11.1997 at around 2.30 p.m. The body was identified by two constables Shiv Mangal Tiwari and Vindhywasini Singh of P.S Thariaon who brought it alongwith nine police papers. The post mortem report filed in S.T no.01 of 1999 proved as Exhibit Ka-4 had been shown to this witness and he had reiterated that the said report was in his handwriting and signature. P.W-2 also proved the injuries found on the person of the deceased, and the internal and external condition of the dead body as indicated in the post mortem report as under :
External examination:
"1. Blackening was present on entry wound of firearm about an area of 3cm x 2cm on left side of neck below 5cm left ear around the wound about area of 3cm. This wound is towards inside the neck.
2. Scratch mark about 5cm x 2cm on left neck bone.
3.Lacerated wound about 2cm x 1cm muscle deep inside on left cheek. Two pellets were obtained from this wound.
4.Lacerated wound about 2cm x 1cm on left forehead bone deep muscle inside. One small iron pellet was obtained from this wound.
5. Lacerated wound about 2cm x 1cm on left eye. Left eye was bulged out after bursting. Three small pellets were obtained from left eye cavity.
6. Entry wound of firearm in the middle bone 6cm towards back side of left side chest and 20 cm below left scapula."
Internal Examination:-
"It was an average build body. Rigour mortis was present on the entire body. There were no sign of rotting. Eyes and mouths were closed. On internal examination, 22 pellets were recovered from wound no.1. The membrane of both lung were lacerated, ½ litre blood was present therein. All arteries of the neck were lacerated. Membrane of stomach was also lacerated around 4 ounce yellow colour semi digested food was found in the stomach, which could not be identified in any category of food. Small intestine was empty, large intestine was ½ filled. Liver and spleen were lacerated. One litre blood were present in the stomach. It was opined by P.W-4 opined that deceased had sustained fire arm injuries and the cause of death was hemorrhage and shock as a result of injuries sustained by fire arm."
Estimated time of death was about one day.
7. The investigation in the case was completed by CBCID after initial investigation conducted by the Civil police. P.W-6, the Investigating Officer, CBCID proved that he had received investigation on 27.01.1998, perused the previous investigation report and recorded statements of eyewitnesses including Head Moharrir Shyam Narayan Singh and copied the post mortem report. He had also recorded the statement of the doctor and Panch witness. The statement of informant Shailendra Pratap Singh @ Babloo was recorded by P.W-6 on 11.02.1998. This witness (P.W-6) stated that he submitted chargesheet against two accused Dinesh @ Lambri and Abhinesh on 21.02.1998 as sufficient evidence was found against them. However, the investigation against other accused persons (including the appellants herein) was continuing and then he was transferred.
8. P.W-7, the officer of C.B.C.I.D had received investigation on 06.08.1998 after transfer of P.W-6. He recorded the statements of the accused persons and informant Shailendra Pratap Singh @ Babloo and other eyewitnesses of the incident.
9. P.W-9 is Marindra Kumar Singh who had proved the inquest conducted on 22.11.1997. The copy of the inquest which was marked as Exhibit 'Ka-5' in S.T no.01 of 1999 filed in the present case was proved by this witness with the statement that it was in his handwriting and signature. The police papers related to the inquest were also proved by this witness which were filed and exhibited in S.T no.01 of 1999. The chargesheet against accused persons Ashok Kumar and Anand Kumar filed by Inspector Ram Dheeraj Singh was proved by P.W-10, Pairokar of CBCID as Exhibit 'Ka-2'. It was stated by him that the concerned officer could not come to the Court because of serious ailment. The incriminating circumstances of lodging of the FIR and preparation of police papers during the investigation had been put to the appellants in their examination under Section 313 Cr.P.C. There cannot be any dispute in relation to preparation of these papers, as P.W-3, Head Moharrir who had proved the preparation of Check report on the written report given by informant Shailendra Pratap Singh had not been confronted on this issue. P.W-3 was only confronted about the FIR being antetime or prepared after deliberation of the informant. P.W-6 was confronted about the affidavit of Kuber Singh and stated that he had copied the same in the case diary.
Witnesses of fact:-
10. They remains three witnesses of fact namely Deshraj Singh examined as P.W-1, Balram P.W-4 and Kuber Singh P.W-5, who all had turned hostile in this case. P.W.-1 Deshraj Singh, in his examination-in-chief, recorded on 05.02.2008 narrated the enmity of deceased Malkhan Singh with Rajendra Nath and his sons. He, however, had denied having witnessed the incident and stated that he was in the village at the time of the incident and no one was accompanying deceased Malkhan Singh. He did not know as to who had murdered the deceased. His nephew Shailendra Pratap Singh, who was the only son of his parents had been murdered in the year 2005. The first information report of the murder of Malkhan Singh was lodged by Shailendra Pratap Singh and the report of the murder of Shailendra Pratap Singh was lodged by him, wherein accused persons namely Rajendra Nath, Abhinesh, Dinesh, Hariom and Amit were implicated. At this stage, this witness had been declared hostile. It has come in evidence that a case of attempt to murder (under Section 307 IPC ) had been lodged against P.W-1 in the year 2007 about one year prior to his deposition for attack on Virendra, brother of the accused Rajendra Nath. In the said case, he (P.W-1), his two sons and one nephew were implicated and it was pending at the stage of evidence. P.W-1 admitted, in cross, that he gave statement earlier in the Court on 21.11.2005 about the incident in question.
11. The suggestion that he was making a false statement in connivance with the accused so that they may also not give testimony against him in the criminal cases lodged against him and his sons, was refuted by P.W-1. P.W-1 was also suggested that out of greed, he had pressurized the wife of deceased Malkhan Singh to sell some land and on her denial, he was making a false statement, which he had denied. The written report Exhibit Ka-1, part of the evidence in S.T no.01 of 1999, was shown to this witness and read over, he (P.W-1) stated that the said report was neither in the handwriting of Shailendra Pratap Singh nor it was signed by him. P.W-1 further resiled from his previous statement dated 21.11.2005 recorded in S.T no.01 of 1999 with regard to the incident in question and stated that he did not state therein that the written report Exhibit 'Ka-1' bears handwriting and signature of Shailendra Pratap Singh. The suggestion that he was making a false statement was refuted by P.W-1, in cross, by the prosecution.
12. P.W-4 is Balram s/o Ompal, a villager who had turned hostile in his examination in chief, had denied the occurrence and also stated that he had no knowledge of enmity of the accused persons with the deceased. In cross by the prosecution, P.W-4 stated that he was not present in the village on the date of the incident, he was never interrogated by the police. P.W-4 also denied his statement under Section 161 Cr.P.C which was read over to him and stated that he did not know as to how the said statement was recorded. He further stated that the distance between his house and the house of Malkhan Singh was about 150 paces. P.W-4 admitted that he had fields in the village and stated that his "field was at a distance from the field of Rajaram Singh." He had denied the suggestion that his fields were being irrigated from the tubewell of Shailendra Pratap Singh. He stated, on his own, that Shailendra Pratap Singh had also been murdered. The suggestion that he was making a false statement because of fear of the accused persons was refuted by him.
13. P.W-5 Kuber Singh s/o Kartar Singh, the hostile witness, in his examination in chief, stated that his name was Kunware Singh, and he knew the accused persons. He had proved the date and time of the incident and stated that he was going to get manure from the society along with Balram (P.W-4) and DurgaShankar. Malkhan Singh was walking at a distance of 50-60 paces ahead of them. Five persons alighted from the field of 'Arhar,' amongst whom he had identified Abhinesh and Dinesh @ Lambri. For other three, he stated that one was tying safa who was looking like Rajendra Nath but he was not actually Rajendra Nath. The rest two assailants were looking like Anand and Ashok but they were not actually Anand and Ashok. Amongst five persons, Dinesh and Abhinesh were carrying Tamancha, third person looking like Rajendra was having a double barrel gun and one of the remaining two persons was having rifle. What was in the hand of the fifth person was not clear to him. They all (five) came towards deceased Malkhan Singh and opened fires at him from the weapons in their hands. The place of the incident was the road near the field of Rajaram.
14. P.W-5, Kuber Singh stated in his examination in chief, that on the one side they and on the other side Deshraj Singh and Jitendra Singh, raised hue and cry and the accused persons ran away. This witness (P.W-5) was crossed by the prosecution after declaring him a hostile witness. He admitted his previous statement in the Court recorded on 29.11.2005. The said statement was put to him in the form of question and he was asked as to which one of the two statements was correct. P.W-5 replied that his previous statement recorded was true and the statement recorded on that day in the Court was false. The suggestion that he had connived with the accused persons and was making a false statement on a compromise arrived with them was refuted by P.W-5. He was further cross examined on behalf of the accused persons namely Rajendra Pal, Anand and Ashok.
15. In cross for accused Rajendra, P.W-5 had admitted that when he gave statement on 29.11.2005, only Dinesh and Abhinesh were the accused and the case was going against them. He further stated that he went to buy manure on the card of his father and if the said fact had not been indicated in his 161 statement, he did not know the reason. He was further contradicted about his previous statement under Section 161 Cr.P.C and stated that he did not remember as to whether he told that he went to buy manure on the card of Durga. P.W-5, however, denied that he was tutored to make a false statement in the Court that the third person was looking like Rajendra and it was an improvement made by him after coming to know that Rajendra Nath was in jail on the date of incident. P.W-5 was also confronted by the defence for the accused Anand and Ashok that he was making a false statement being relative of the deceased, P.W-5 had categorically stated that two accused persons were looking like Ashok and Dinesh and therefore, their names were mentioned by him.
16. The date and time of the incident and manner of lodging of the first information report, therefore, cannot be disputed. The nature of the injuries sustained by the deceased were also proved. The only issue raised in the instant appeal is about the involvement of appellants Ashok Kumar and Anand Kumar in the murder of Malkhan Singh.
17. It is argued by the learned counsel for the appellants that the presence of appellant Ashok Kumar on the spot of the incident was impossible, inasmuch as, he was present in the Court of Civil Judge (Junior Division) Fatehpur in case no.242 of 1996 (Ashok Kumar Trivedi vs Mahavir) where his statement was recorded on 22.11.1997, the date of incident, itself. The said statement was brought on record as Exhibit 'Kha-1' by the defence and was put to the Investigating Officer P.W-7, in cross. P.W-7 replied that he was informed by Sukhlal Peshkar that the statement of appellant Ashok Kumar was recorded in the Court of Civil Judge, Junior Division on 22.11.1997 between 11.00 a.m. 12.00 noon.
18. A perusal of the copy of the paper no.Kha-1 does not indicate the time of recording of the said statement. Apart from the said document, there is nothing on record which would establish the presence of accused appellant Ashok Kumar in the Court of Civil Judge, (Junior Division) Fatehpur at the time of the incident between 11.00 a.m to 12.00 noon on the date of the incident, i.e 22.11.1997. We may note that the statement of P.W-7, in cross, is based on hearsay, the concerned Peshkar Sukhpal had not been produced in the witness box by the defence to substantiate the contention of the appellants about the impossibility of presence of appellant Ashok Kumar at the place of the incident. The arguments in this regard is, therefore, turned down.
19. The other witnesses of fact namely P.W-1 Deshraj Singh, P.W-4 Balram and P.W-5 Kuber Singh had turned hostile. However, their testimony is to be appreciated on the settled principles of appreciation of the testimony of a hostile witness.
20. In the matter of appreciation of evidence of a hostile witness, the settled principle of law is that merely because a witness is declared hostile, his entire testimony cannot be excluded from consideration. In appropriate case, the Court can rely upon the part of testimony of such a witness, if that part of deposition is found to be credible. Merely because the Court gave permission to the public prosecutor to cross examine his own witnesses describing him as hostile witness does not completely efface his evidence. There is no legal bar to base the conviction upon the testimony of such witness. However, the Court has to be cautious while appreciation of evidence of a hostile witness which is to be subjected to close scrutiny. Any portion of evidence consistent with the case of the prosecution or defence version, can be relied upon. Reference may be made to the decision of the Apex Court in Bhagwan Singh Vs. The State of Haryana reported in (1976) 1 SCC 389; Gura Singh Vs. State of Rajasthan reported in (2001) 2 SCC 205; Atmaram & others Vs. State of Madhya Pradesh reported in (2012) 5 SCC 738; Haradhan Das Vs. State of West Bengal reported in (2013) 2 SCC 197; Rajesh yadav & another Etc. Vs. State of U.P reported in (2022) 3 ADJ 114.
21. In light of the above principles, while analysing the testimony of three hostile witnesses, we may note that though P.W-1 (Deshraj Singh) had categorically denied having seen the incident and involvement of accused appellants in the murder of Malkhan Singh and resiled from his previous statement dated 21.11.2005 recorded in the Court in S.T no.01 of 1999. He stated that a criminal case of murder of the brother of the accused Rajendra had been lodged against him, wherein he, his two sons and one nephew had been implicated as accused and the said case was pending wherein evidence of the prosecution had not been commenced till his testimony was recorded in the instant case. The reason of this witness having turned hostile can be understood from the above fact brought into light by the prosecution. It may also be noted that, in his examination in chief, P.W-1 stated about enmity of acquitted accused Rajendra Nath with deceased Malkhan Singh and stated that acquitted accused Rajendra Nath and his son Abhinesh and brother Virendra made an attempt to commit murder of Malkhan Singh prior to the present incident wherein they had been convicted. P.W-1 also stated that his nephew Shailendra Pratap Singh who was informant in the present case and only son of his parents, had also been killed and the first information report in the said case was lodged by him.
22. P.W-4 Balram had completely denied the occurrence, by saying that he did not know as to when and how the incident had occurred and neither he nor another witness Kuber Singh, had witnessed the murder of Malkhan nor accused-appellants were involved in the same. He also stated that he was not present in the village and had been confronted with his statement under Section 161 Cr.P.C.
23. P.W-5 Kuber Singh, however, proved the date and time of the incident, in his examination in chief, and stated that he knew all the accused persons named in the FIR including the appellants herein. He stated that while he along with Balram (P.W-4) and one Durgashankar was going to get manure from the society and they were walking behind deceased Malkhan Singh on the road at a distance of 50-60 paces, five assailants alighted from the field of 'Arhar'. He had identified two assailants as Abhinesh and Dinesh @ Lambri clearly, amongst the remaining three, one was tying safa and was looking like Rajendra Nath but he was not sure that he was Rajendra Nath. P.W-5 further stated that conspiracy of Rajendra Nath in the occurrence cannot be ruled out but he did not remember that whether it was told by him as the investigating officer. About the remaining two persons, P.W-5 further stated that they looked like appellants herein namely Anand and Ashok but they were neither Anand nor Ashok. P.W-5 further proved the place of the incident being the road near the field of Rajaram. He also proved the presence of Deshraj Singh (P.W-1) and his son Jitendra at the place of the incident and having witnessed the occurrence. He also proved that two assailants, who according to him, were looking like Anand and Ashok were carrying weapons and one of them was having rifle. All the assailants had opened fires upon deceased Malkhan Singh from a short distance. P.W-5 was confronted by the prosecution with his previous statement pertaining to the incident recorded in the Court on 29.11.2005 and while putting the extract of that statement, a question was put to P.W-5 as to which of his two statements was correct, i.e. whether the statement recorded in the present case as P.W-5 or the statement recorded on 29.11.2005 as P.W-2 in S.T no.01 of 1999. P.W-5 admitted that in relation to the incident in question, his statement was recorded on 29.11.2005. In answer to the above question, P.W-5 stated that his previous statement was truthful and the present one is a lie. He, however, denied that he had entered into a compromise with the accused persons and was making a false statement because of the said fact. In cross by the counsel appearing on behalf of the accused appellants Anand and Ashok, P.W-5 categorically reiterated his statement in the examination in chief, in the present case, and stated that since other two assailants were looking like Ashok and Dinesh, hence he had taken their names in his testimony. The question put to P.W-5 by the prosecution about his previous statement recorded as P.W-2 dated 29.11.2005 in S.T no.01 of 1999 and the answer to the same are relevant to be extracted hereinunder:-
"दिनांक 29/11/05 को इस घटना के सम्बंध मे मेरा बयान इसी न्यायलय मे हो चुका है ।
प्रश्न - दिनांक 29/11/05 को आपने बयान दिया था कि अचानक 5 लोग अरहर के खेत से निकले और सभी मलखान सिंह को गोली मारने लगे ------ मैं उनको पहचानता था उसमे दिनेश और लम्बरी अभिनेश, राजेंद्र व अशोक थे ------ राजेंद्र को सही नही पहचान पाया था क्योकि साफा बाँध रखा था । लेकिन आज ब्यान दिया है कि दिनेश अभिनेश को केवल पहचाना था. इसमे कौन सा ब्यान सच है और कौन सा झूठा है ?
उत्तर:- मेरा पहले वाला बयान सच्चा है और आज का बयान झूठा है ।"
24. From the testimony of P.W-5, it is evident that he had proved the presence of appellants Ashok and Anand at the place of the incident, armed with fire arms, opening fires on deceased Malkhan, in his testimony in the Court dated 29.11.2005 recorded as P.W-2 in S.T no.01 of 1999. He also categorically stated that his previous statement dated 29.11.2005 was truthful.
25. He again reiterated the presence of the appellants Ashok and Anand on the spot by saying that two of the assailants were looking like them and reaffirmed the same, in cross, by the defence.
26. About the weight of testimony of this witness who is oscillating, relevant is to note that there is no reason before us to discard the testimony of this witness who had categorically proved his previous statement recorded on 29.11.2005 in S.T. No.01 of 1999, arising out of the same incident when it was put to him in the cross-examination, where he had categorically proved the presence of appellants herein as assailants, at the place of the incident.
27. From the statements of appellants Anand Kumar and Ashok Kumar under Section 313 Cr.P.C., it is evident that they were influential people of the village. Appellant Ashok Kumar was village pradhan in Village Ramwa at the time of the incident and Anand Kumar was a member of Gram Sabha. The fact that they had tried to influence the investigation and then tried to won the witnesses is also reflected from the record. P.W-5 is the eyewitness of the incident and in his previous statement dated 29.11.2005 he categorically stated that he had identified four accused persons clearly amongst whom two appellants herein Anand and Ashok were also present. The copy of the statement of P.W-5 in S.T no.01 of 1999 dated 29.11.2005 which was put to this witness had been proved by him and is a material evidence in support of the prosecution case. P.W-5 was though crossed but not confronted by the defence with his previous statement in S.T No.01 of 1999 related to the present appellants, which was put to P.W-5, by the prosecution in cross.
28. P.W-5 is an independent witness. There is no suggestion of enmity of this witness with appellants Ashok and Anand. This witness who proved his presence on the spot, in his examination in chief. Being an independent eyewitness, there is no reason before us to cast any doubt on his testimony. His statement is supported by the medical evidence, the nature of the injuries found on the persons of the deceased.
Testimony of a single witness:-
29. Having considered the principles of appreciation of testimony of a solitary witness, it is held by the Apex Court in Vadivelu Thevar vs State of Madras reported in AIR 1957 SC 614 and reiterated in case Lallu Manjhi and another vs. State of Jharkhand reported in (2003) 2 SCC 401.
30. Law of evidence does not require any particular number of witness to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories namely
(i)wholly reliable
(ii)wholly unreliable
(iii)neither wholly reliable nor only wholly unreliable In the first two categories, there may be no difficulty in accepting or discrediting the testimony of single witness. The difficulty arises in the third category of cases. The Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony direct or circumstantial before acting upon the testimony of a single witness.
31. In the case at hand, having analysed the testimony of P.W-5, we find that this witness will not fall in the second or third category, he cannot be said to be unreliable witness.
32. P.W-5 is rather a "wholly reliable" witness of the first category, who had categorically proved his statement of having witnessed the accused appellants at the spot of the incident despite having pressure on him. Neither his presence on the spot can be discarded nor his statement that he had seen the appellants herein (Ashok and Anand) opening fire on the deceased, can be said to be false.
Conclusion
33. Taking into consideration of the oral testimony of the P.W-5 who is independent witness, coupled with the entire statement of P.W-1, Deshraj Singh, who was the uncle of the informant and brother of the deceased, it is evident that the factum of lodging of the report indicating the names of the appellants herein namely Ashok Kumar and Anand Kumar had been proved by the prosecution. The presence of accused persons on the spot of the incident and their participation in the crime is proved from the version of the informant in the FIR, supported with the statement of P.W-1, Deshraj Singh in his testimony recorded in S.T no.01 of 1999 in the Court, arising out of the same Case Crime no.307 of 1997, which was put to P.W-1 during his cross-examination. It is evident that the first information report of the incident was lodged by Shailendra Pratap Singh s/o deceased Malkhan Singh naming five accused persons therein as assailants. The names of appellants herein namely Ashok Kumar and Anand Kumar had been mentioned in the first information report and their presence on the spot is proved from the statement of P.W-5, eyewitness of the occurrence. The presence of the appellants, on the spot, along with other assailants and their participation in the crime has been proved by the prosecution beyond reasonable doubt.
34. For the above discussion, we find no infirmity in the judgment and order dated 28.02.2009 passed by the Additional District and Sessions Judge, Fatehpur, the trial Court in conviction of the appellants. The sentence awarded is minimum.
35. The judgment and order dated 28.02.2009 passed by the Additional District and Sessions Judge, Fatehpur, in Sessions Trial no.441 of 2007, arising out of the Case Crime no.302 of 1997, is hereby affirmed.
36. The appeal is dismissed being devoid of merits.
37. The appellants Ashok Kumar and Anand Kumar are on bail. Their personal bonds are cancelled and sureties are discharged. They shall be taken into custody to serve their sentence.
38. Certify this judgment to the trial Court immediately for compliance.
39. The compliance report be submitted through the Registrar General, High Court, Allahabad.
Order Date:-13.04.2023 Harshita