Allahabad High Court
Prem Nath Sonkar Alias Varun Son Of Late ... vs State Of U.P. on 18 November, 2005
Author: Imtiyaz Murtaza
Bench: Imtiyaz Murtaza, Amar Saran
JUDGMENT Imtiyaz Murtaza, J.
1. The above appeals are filed against the judgment and order dated 1 2.5.2004 passed by the Addl. District and Sessions Judge, Fast Track Court No. 3, Kanpur Nagar in Session Trial No 441 of 2003 and 442 of 2003 whereby the appellant Prem Nath Sonkar is convicted under Section 302/34 I.P.C. and sentenced to undergo imprisonment for life and a fine of Rs. 4000/- and in default of payment of fine further simple imprisonment for four months, he is further convicted under Section 25 Arms Act and sentenced to R.I, for 2 years and a fine of Rs. 500/- and in default of payment of fine further simple imprisonment for one month and convicted under Section 27 of Arms Act and sentenced to death, appellant Mahesh Balmiki is convicted under Section 302/34 I.P.C. and sentenced to undergo life imprisonment and a fine of Rs. 4000/- and in default of payment of fine further simple imprisonment for four months and appellants Rahul alias Shekhar and Rishi Kumar alias Boby Sonkar are convicted under Section 302/34 I.P.C. and sentenced to undergo imprisonment for life and a fine of Rs. 4000/- and in default of payment of fine further simple imprisonment for four months, they are further convicted under Section 25 Arms Act and sentenced to undergo R.I. for two years and a fine of Rs. 500/- and in default of payment of fine further simple imprisonment for one month.
2. Criminal reference is for the confirmation of the death sentence.
3. All the appeals arises out of a common judgment, therefore, these appeals are disposed of by this common judgment.
4. The brief facts, mentioned in the report lodged by Smt. Seema Sonkar, are that she along with her husband Suraj Sonkar were present at their pork shop. Her mother-in-law Smt. Sheetla Devi was sitting in the shop, Jaswant Singh, brother of Suraj Sonkar was standing outside the shop. There was electric light inside and outside the shop and several people were passing on the road. At about 9 p.m, from the side of the market Prem Nath Sonkar alias Varun, Rishi Kumar alias Boby Sonkar, Rahul Sonkar alias Shekhar and Mahesh Balmiki came armed with country made pistols and Mahesh Balmiki exhorted to kill and Prem Nath, Shekhar and Boby fired at her husband with their country made pistols which hit her husband Suraj Sonkar and he died on the spot. Shekhar, Prem Nath Sonkar and Boby were having enmity with her husband. They had also assaulted her husband few days back and a case was pending in the Court. On account of this enmity her husband was murdered. The dead body of her husband was lying on the spot. On account of this incident the public started running and the shops were closed.
5. The report was registered at the police station Seesamau on 13.3.2002 at 9.35 p.m. Head Constable Bhoop Singh Sengar registered the case at case crime No. 32 of 2002 under Section 302 I.P.C. After the registration of the case Inspector Ashok Kumar Rawat started the investigation. He recorded the statement of the informant and constable Bhoop Singh Sengar reached at the place of occurrence alongwith S.I. Ram Sewak and other police personnel. He instructed S.I. Ram Sewak to prepare the inquest memo. He arrested Mahesh Balmiki at 11.30 p.m. He prepared the site plan, Ext Ka-2. He recorded the statements of eyewitnesses Jaswant Singh, Smt. Sheetla Devi and witnesses of inquest and recovery memos. He had taken the accused on remand. On the pointing out of Prehi Nath one country made pistol 315 bore and two live cartridges 315 bore were recovered from a park . On the pointing out of Rahul alias Shekhar one country made pistol and two live cartridges of 315 bore were recovered from a statue of Vishwakarma. The case crime No. 41 and 42 under Section 25 Arms Act were registered against the accused. He recorded the statements of witnesses Anil Kumar, Ashok Kumar, constable Narendra Singh and Shailendra Kumar and other constables. The site plan of the recovery of weapons was prepared, which is Ext. 7 Ka-3. After the conclusion of the investigation charge sheet was submitted against the accused persons. He had also proved the inquest report, which was in the handwriting of Ram Singh, Ext. Ka-5. Letter to R.I. challan nash, photo nash, letter to C.M.O. and sample of seal are Ext. Ka-6, 7, 8, 9 and 10. The recovery memo of empty cartridges, plain and blood stained earth was prepared by S.I. Ram Saroj which is Ext. Ka-11. The recovery memo of two country made pistols and four cartridges is Ext. Ka-12. The post mortem on the dead body of Suraj Sonkar was conducted by Dr. P.B. Ram Chauhan on 14.3.2002 at 12.10 p.m. He noted the following ante mortem injuries on the person of deceaseds:
1. Fire arm wound of entry 2x2 cm. x brain cavity deep on right side head 6 cm. above right ear. Margins are inverted. Blackening, tattooing and charring present. Skull hairs singed around wound.
2. Fire arm wound of exit 7x7 cm. x brain cavity deep on right side forehead, margins are everted, communicating to injury No. 1 Brain matter lacerated and coming put, Right parietal and right half of frontal bone fractured into pieces.
3. Fire arm wound of entry 1 x 1 cm. x chest cavity deep over front of lower part of chest over sternal lower end. Blackening, tattooing and charring present around wound. Margins are inverted.
4. Fire arm wound of exit 2 cm. x 3 cm x abdominal cavity deep on left side lower part of back; 10 cm. above left posterior superior iliac spine. Margins are everted. One bullet (metallic) recovered lying loose in cloths near this wound. The exit of wound is communicating to Injury No. 3.
5. Abraded contusion 1 x 1/2 cm. over front of left knee.
6. Abraded contusion 2 x 1 cm. over front of upper part of right leg 2 cm. below injury No. 5.
6. In the opinion of the doctor the cause of death was due to fire arm injury on vital part (brain).
7. The case was committed to the Court of Session. The prosecution had examined 8 witnesses in order to support its case. P.W. 1 Smt. Seema Sonkar, the informant and eyewitness of the case. P.W. 2 Jaswant Sonkar, the eyewitness and brother of the deceased. P.W. 3 Inspector A.K. Rawat, Investigating Officer of the case. P.W. 4 Head Constable Ram Gopal who had prepared chik F.I.R of case crime Nos. 41 and 42 of 2002 under Section 25 Arms Act. P.W. 5 Dr. P.B. Ram Chauhar, conducted the autopsy on the dead body of deceased. P.W. 6 Head Constable Bhoop Singh Sengar prepared the chik F.I.R. P.W. 7 S.I. Ramesh Prasad had investigated the case under Section 25 Arms Act and submitted the charge sheet. P.W. 8 S.S.I. Prakash Singh, a witness of the recovery of weapons.
8. The case of the defence was of denial and D.W. 1 Smt. Uma and D.W. 2 Smt. Urmila were examined as defence witnesses. They deposed that on the date of occurrence the informant was not present at the place of occurrence.
9. The Sessions Judge considering and relying upon the prosecution evidence convicted the appellants, as aforesaid. Hence these appeals.
10. We have heard learned Counsel for the appellants and the learned A.G.A. for the State.
11. Learned Counsel for the appellant has challenged the findings of the Sessions Judge on the ground that there is conflict between the direct and medical evidence that the participation of Mahesh Balmikii is doubtful, that the F.I.R. is ante timed, that no independent Witness has been examined although place of occurrence is a market place and lastly, the Sessions Judge has wrongly awarded death sentence under Section 27 Arms Act.
12. In order to appreciate the submissions of learned Counsel for the appellants we have to critically analyse the evidence on the record.
13. P.W. 1 Smt. Seema Sonkar deposed that her husband was murdered one and a half year back at 9 p.m. She alongwith her husband were at their pork shop. Her mother-in-law was also present in the shop. The accused persons Mahesh Balmikii, Prem Nath, Shekhar and Boby came there carrying country made pistols. There was an electric light inside and outside the shop also. Mahesh Balmiki exhorted, Prem Nath and Boby fired from their country made pistols. Her husband died on the spot. After firing, the accused persons ran away. She had raised alarm, her nephew Raj Kumar was present. He prepared the report and she had signed the same and lodged at the police station. The occurrence was also witnessed by Jaswant. It is further stated that about 4 months back some Marpeet had taken place between her husband and accused persons and a case was also pending.
14. P.W. 2 Jaswant deposed that on 13.3.2002 at about 9 p.m. his brother Suraj Sonkar was inside the shop and he was standing outside the shop. He was smoking a cigarette near the betel shop and his brother's shop was in front of the betel shop, There was a light inside and outside the shop. His mother Sheetla Devi, Seema Sonkar and brother were present at the shop. Prem Nath, Boby Sonkar. Shekhar and Mahesh Balmikii came there from the side of the market. The name of Prem Nath is also Varun Sonkar, name of Shekhar is also Rahul Sonkar and name of Boby is also Rishi Kumar Sonkar. They all were carrying country made pistols and on the exhortation of Mahesh Balmikii, Shekhar, Boby and Prem Nath fired from their country made pistols. After firing they all ran away. Suraj Sonkar died on the spot. They had gone to lodge the report. About four months prior to the occurrence some altercation had taken place between Suraj Sonkar, deceased, Prem Nath and Shekhar.
15. P.W. 3 Ashok Kumar Rawat investigated the case and submitted the charge sheet against the accused persons.
16. P.W. 4 Head Constable Ram Gopal was posted on 11.4.2002 as Head Moharrir, Seesamau. On the basis of recovery memo of S.H.O. Ashok Kumar Rawat he registered the case at case crime No. 41 of 2002 under Section 25 of Arms Act against Prem Nath and case crime No. 42 of 2002 under Section 25 of Arms Act against Rahul alias Shekhar. Chik F.I.R. is Ext. Ka-13 and it was entered into G.D. Ext. Ka-14.
17. P.W. 5 Dr. P.B. Ram Chauhan conducted the autopsy on the dead body of Suraj Sonkar.
18. P.W. 6 constable Bhoop Singh Sengar was posted as constable Moharrir at Seesamau on 13.3.2002. He prepared the chik F.I.R of case crime No. 32 of 2002 under Section 302 I.P.C. and the report was lodged by Seema Sonkar against Prem Nath alias Varun, Rishi Kumar alias Boby, Rahul Sonkar alias Shekhar and Mahesh Balmikii. F.I.R. is Ext. Ka-16 and G.D. is Ext. Ka-17.
19. P.W. 7 Ramesh Prasad was posted as Sub Inspector at police station Seesamua on 11.4.2002. He deposed that the investigation of case crime No. 41 and 42 of 2002 under Section 25 Arms Act was in handed over to S.I. Parvej Alam who recorded the statements and he identified his handwriting. He had submitted the charge sheet under Arms Act.
20. P.W. 8 S.I. Shri Prakash Singh was posted as S.S.I. at police station Seesamau on 11.4.2002 and the weapons were recovered in his presence.
21. The first submission of the Counsel for the appellant is that the F.I.R. is ante timed. It is submitted that P.W. 1 Smt. Seema Sonkar stated that the copy of the F.I.R. was not given to her at the police station and she had signed on a plain paper in the police station. We have considered the submission of the Counsel for the appellant. The occurrence took place on 13.3.2002 at 9 p.m. and a written report was lodged by Seema Sonkar, P.W. 1 at 9.35 p.m. The distance of the police station from the place of occurrence is 1/4 kins. The scribe of the report is one Raj Kumar and according to the prosecution case he is resident of Kakadeo and it has come in evidence that by Rickshaw it takes 1/2 hour to cover that distance from the place of the occurrence. Rajkumar is a nephew of P.W. 2 Jaswant Sonkar. It is not disputed that the investigating officer had reached at the place of occurrence same night. The dead body was also dispatched. The inquest report shows that the papers sent alongwith the dead body includes chik and F.I.R The evidence of P.W. 2 shows that Rajkumar reached only after 10 minutes of the occurrence and there is nothing on record to suggest that the report was ante timed. Her statement that she had signed on a paper at the police station is irrelevant because she could not remember on which paper she had signed. She further stated that she had signed on a plain paper. Her testimony was recorded after about one and half year and she could not properly narrate the sequence of events and her testimony cannot be doubted on this ground. There is sufficient evidence to hold that the report is registered at the time as alleged by the prosecution.
22. The Counsel for the appellant submitted that the place of the occurrence took place in the market place but no independent witness was examined .In support of his submission reliance was placed on a decision of the Apex Court in the case of Harijana Thirupala v. Public Prosecutor, High Court of A.P. has held as under:
As to the non-examination of independent witnesses, though several independent persons had witnessed the incident, the High Court accepts the feeble explanation given by P.W 7, the investigation officer, that none of them came forward to give evidence because of fear of the accused. Nothing has come in evidence that the appellants were notorious criminals or they were a terror in the village. The trial Court took a right view that non-examination of independent, witnesses seriously impaired the credibility of the prosecution case.
23. Another decision relied by the Counsel for the appellant is of Jang Singh v. State of Rajasthan wherein the Court has held as under:
It is also not clear as to why the occurrence itself having taken place at the bus-stop where ordinarily people must be there the prosecution has not examined any outsider witness in support of the prosecution case. At least the passenger, who is said to have got down from the bus, could have been the most natural witness, but he has also not been examined by the prosecution. Even out of the passengers, who were travelling in the bus, some of them could have been examined, but no attempt has been made by the prosecution to examine any of them. In this state of affairs, we do not think it safe to rely upon the evidence of PW 1 alone to base the conviction of these accused persons.
24. Learned Counsel for the appellants further submitted that the presence of the wife and mother at the place of occurrence is highly doubtful. The deceased used to sell pork and P.W. 1 was mother of small children and her eldest son is 9-10 years old, therefore, her presence at the shop at 9 p.m. is highly improbable. It is further submitted that mother-in-law of P.W. 1 was aged about 75 - 80 years old and was hard of hearing and she also uses spectacles.
25. We have considered the submission of the Counsel for the appellants and the evidence on the record. The evidence P.W. 1 shows that she use to reside alongwith her husband, children and mother-in-law together. She stated that her husband was attacked about 4 months prior to the occurrence by the accused, since then they use to reach at the shop at about 8.30 p.m. She had also stated that her mother-in-law use to clean the shop after reaching there. She had explained her presence at the place of occurrence and her tenor of examination indicates that she is a truthful witness. She has given correct replies to the uncomfortable questions also. She had admitted that her husband was prosecuted in two cases but he was acquitted and once he had gone to jail also in a case under. Section 307 I.P.C. The non examination of Rajpal does not affect the prosecution case. He is nephew of P.W. 2 Jaswant. Similarly the mother-in-law of P.W. 1 is not examined. P.W. 1 stated that she is an old lady and also hard of hearing, therefore, if she is not examined it cannot be said that the case is false. The occurrence had taken place in the market place. There was sufficient light in which assailant could be identified. If the independent witnesses are not examined the testimony of other reliable witnesses does not become suspect. The occurrence took place in the market place. The assailants committed the crime by lethal weapons and in such circumstances no independent witness wants to associate with the prosecution.
26. The Counsel for the appellants also challenged the presence of the eye witnesses at the place of occurrence on the ground that both the eye witnesses are close relative of the deceased, one is the wife of the deceased and other is real brother of the deceased. But they did not try to save the deceased and their clothes were not even stained with blood of the deceased. In support of this submission the Counsel for the appellant placed reliance on a decision of Meharaj Singh v. State of U.P. reported in 1994 S.C.C. (Crl.) 1390 where the Apex Court disbelieved the presence of the wife of deceased and observed that "we may demonstrate this by noticing that though PW3 Smt. Kamlesh the widow of the deceased claimed that she was present with her husband at the time of the occurrence, her conduct was so unnatural that not only she did not try to save her husband by trying to provide a cover but even after her husband fell down and was inflicted repeated injuries with the knife by the appellant Mehraj Singh, she did not even try to go anywhere near her husband and even later on hold his head in her land acquisition proceedings and try to provide some comfort to him. This becomes obvious from the absence of any bloodstains on her clothes. She admitted that she had not even received a scratch during the occurrence. In a situation like this, the normal conduct of any wife would be firstly to make an effort to save her husband even by taking the blow on herself and if that is not possible then at least to go so close to his person, at least after the assailants had left that there would be no escape from the blood oozing out of the injuries of the deceased to come on to her clothes. Similar criticism is also available against Balbir P.W. 2, Shiv Charan P.W. 4 and Satkari P.W. 5. It is not the case of the prosecution that the clothes of any of them had got blood stained. The very fact that none of these witnesses went to lodge a report and instead left it to the father of the deceased to lodge the F.I.R. would also go to show that the witnesses in all probability were not present at the spot."
27. We have considered this submission and also perused the decision cited by the learned Counsel for the appellants. The facts of the case of Meharaj Singh (Supra) are distinguishable from the facts of the present case. In the case of Mehraj Singh, deceased was firstly fired upon and thereafter he was assaulted by a knife. In the instant case the deceased was fired upon and he died instantaneously. In that case Apex Court had also observed that "the very fact that none of these witnesses went to lodge a report and instead left it to the father of the deceased to lodge the FIR would also go to show that that the witnesses in all probability were not present at the spot " and the place of occurrence was also doubted, the genesis of occurrence was held to be suppressed by the prosecution and it was also held that the ocular testimony does not fit in with the medical evidence and instead it contradicts it. This being not the position in the instant case and the said case is not applicable in the facts and circumstances of this case.
28. It is also to be noted that the conduct of the witnesses cannot be predicted in a situation like this where the assailants were armed with fire arm. In the case of Hardev Singh v. Harbhej Singh , the Apex Court had observed as under:
Coming to the next ground'of acquittal, viz., non-intervention of the relatives of the deceased including the eyewitnesses during the assault on the victims to protect them, in our opinion is wholly unsustainable. Since the respondents (accused) were armed with deadly weapons as against this the victims and his relatives were totally unarmed and in such a situation it was absurd to expect any intervention and if they were to do so it would have led to some more casualties. We, therefore, do not see any merit whatsoever in the reasoning given by the High Court in this behalf.
we have also perused the testimony of the defence witnesses and the reasons assigned by the trial Court. In our opinion the trial Court had rightly held the presence of the eye witnesses at the spot and also rightly did not place reliance on the testimonies of D.W.l Smt.Uma and Smt.Urmila.
29. We have carefully examined the evidence of eye witnesses and in our opinion the place of occurrence is fixed by the testimony of the eye witnesses, presence of blood at the place of occurrence and also by the serologist report which confirms presence of human blood in the earth which was collected there from.
30. It is also pointed out by the Counsel for the appellants that the empty cartridge which was recovered from the place of occurrence cannot be held to be a reliable piece of evidence because link evidence is missing. It is submitted that the cartridge which was alleged to be recovered from the place of occurrence was sealed on 13.3.2002 and the ballistic expert report shows that it was received in his office on 10.6.2002. There is nothing on the record to show as to where the recovered cartridge was kept. The Apex Court in the case of Vatsala v. State of Kerala 1993 Supp. (3) Supreme Court Cases 665 did not rely upon recoveries when link evidence was missing and observed , that "suffice it to say that the articles seized appears to have been not kept in proper custody and proper form so that the Court can be sure that what was seized only was sent to the chemical examiner. There is a big gap and an important missing link. In the Mahazar Ex. P-2 which is immediately said to have been prepared, there is nothing mentioned as to under whose custody it was kept after seizure unfortunately for the prosecution even P.W. 6 does not say that he continued to keep it in his custody under seal till it was produced in the Court on January, 14, 1988. The evidence given by P.W. 6 police Sub Inspector, who seized the articles is absolutely silent as to what he did with the seized article till it was produced in the Court"
31. We have considered this submission of the learned Counsel and we find that the alleged cartridge cannot be connected with the weapon recovered in the absence of any link evidence. Therefore, we are ignoring the ballistic examiner report which shows that the cartridge recovered from the place of occurrence was fired from the weapon which was recovered on the pointing out of the accused. Even after the rejection of this evidence the testimony of eye witnesses cannot be disbelieved. It was the fault of the prosecution that the link evidence is not produced in this case. If there is any defect in investigation as in the present case where they failed to prove the link evidence no benefit can be given to the accused or the eyewitness account cannot be disbelieved on this ground alone. The Apex Court in the case of Ram Bali v. State of U.P. has held as under:
12. The investigation was also stated to be defective since the gun was not sent for forensic test. In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. (See Karnel Singh v. State of M.P.)
13. In Paras Yadav v. State of Bihar it was held that if the lapse or omission is committed by the investigating agency or because of negligence there had been defective investigation the prosecution evidence is required to be examined dehors such omissions carefully to find out whether the said evidence is reliable or not and to what extent, such lapse affected the object of finding out the truth. The contaminated conduct of officials alone should not stand in the way of evaluating the evidence by the Courts in finding out the truth, if the materials on record are otherwise credible and truthful; otherwise the designed mischief at the instance of biased or interested investigator would be perpetuated and justice would be denied to the complainant party, and in the process to the community at large.
14. As was observed in Ram Bihari Yadav v. State of Bihar if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law-enforcing agency but also in the administration of justice. The view was again reiterated in Amar Singh v. Balwinder Singh. As noted in Amar Singh case it would have been certainly better if the firearms were sent to the Forensic Test Laboratory for comparison. But the report of the ballistic expert would merely be in the nature of an expert opinion without any conclusiveness attached to it. When the direct testimony of the eyewitnesses corroborated by the medical evidence fully establishes the prosecution version, failure or omission or negligence on the part of the IO cannot affect the credibility of the prosecution version.
32. It is further submitted that there is conflict in direct and medical evidence. According to the prosecution case three persons are alleged to have fired but the post mortem report indicates only two fire arm injuries. We have considered the submission of the Counsel for the appellants and the post mortem report. The testimony of the witnesses is consistent with regard to the role of firing by the accused. The witnesses had deposed that assailants came armed with fire arm and they fired at the deceased. The post mortem report shows two fire arm entry wounds.
33. We are of the opinion that in a incident of this nature it would be impossible for the prosecution witnesses to account for each and every bullet fired in the course of the incident, the chances of some bullets not hitting the target cannot be ruled out or some may be lost or destroyed after hitting some hard surface.
34. The Counsel for the appellant has challenged the lodging of the first information report on the ground that the scribe Rajkumar can not reach at the place of occurence in a short time. According to the witnesses he was resident of mohalla Kakadev and a rickshaw takes half an hour in reaching there from the place of occurence. If Rajkumar was called from there than report possibly can not be lodged within 35 minutes of the occurence. We have considered the submission of the Counsel for the appellant and we do not find any substance in this submission. lt is not disputed that the report was not in the writing of the Rajkumar. How he reached within ten minutes of the occurence can be answered by him alone but he was not examined by the prosecution as a witness. Due to the non examination of the scribe the testimony of the informant can not be doubted. Her testimony finds corroboration by the testimony of P.W2 Jaswant Sonkar,post mortem report and by the investigation.
35. So far as the objection of learned Counsel for the appellants that there is delay in sending the special report is concerned, in our opinion it does not affect the credibility of the witnesses. The testimony of P.W. 6. Bhoop Singh Sengar shows that wireless message was sent to higher authorities which included the name of the accused also. The time of the lodging of the report is proved by the G.D.entry which was prepared on the basis of the report and the investigation commenced immediately thereafter. The statement of the informant and constable Bhoop Singh, who had prepared the G.D. of the registration of the case, was recorded immediately after the registration of the case . Thereafter S.I. Ram Sewak was deputed to prepare the inquest report and accused Mahesh Balmiki was arrested same night at 11.30 p.m. After the preparation of the inquest report the dead body was dispatched for the post mortem examination at 11.55 p.m. It is also to be noted that the first information report was also one of the enclosures of the inquest report which was sent along with the dead body for the post mortem examination. If the special report is not sent by the police to higher authorities the lodging of the report can not be doubted. This at the most can be termed as defect in the investigation and on that ground the eye witness account, which is otherwise reliable, can not be doubted.
36. P.W. 1 Seema Sonkar and P.W. 2 Jaswant Sonkar examined as eyewitnesses. They have fully supported the prosecution case. They have explained their presence which is also proved by prompt lodging of the report. The place of occurrence is supported by the recovery of blood which is confirmed by the serologist report. The post mortem examination report also corroborates the ocular testimony. We have also examined the reasoning given by the Sessions Judge for not relying upon the testimonies of the defence witnesses and in our opinion the Sessions Judge had rightly rejected their testimonies. The presence of the eye witnesses is proved at the place of occurrence beyond reasonable doubt.
37. So far as the case of the appellant Mahesh is concerned, the allegation against him is that he exhorted others to fire at the deceased. It is not the case of the prosecution that though carrying a weapon he fired at anyone. Moreover, if all the four accused had come determined to kill the deceased and all of them were armed with country made pistols, there was no need for appellant Mahesh to exhort his companion to fire at the deceased. Without casting any reflection on the eye witnesses, and only by way of abundant caution, we are inclined to extend the benefit of doubt to appellant Mahesh. Thus it is not safe to convict the appellant Mahesh on the basis of his role of exhortation.
38. The Sessions Judge had convicted appellant Prem Nath Sonkar under Section 27 of the Arms Act and sentenced him to death. The Section 27. Of the Arms Act provides. Punishment for using arms, etc.-(1) Whoever uses any arms or ammunition in contravention of Section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
(2) Whoever uses any prohibited arms or prohibited ammunition in contravention of Section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.
(3) Whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of Section 7 and such use or act results in the death of any other person, shall be punishable with death.
39. A perusal of Section 27 shows that death sentence is provided when there is use of any prohibited arms or prohibited ammunition or there is any act in contravention of Section 7 and such use or act results in the death of any other person. Section 27 of the Arms Act defines prohibited arms and prohibited ammunition "prohibited ammunition" means any ammunition containing or designed or adopted to contain, any noxious liquid, gas or other such thing, and includes rockets, bombs, grenades, shells, [missiles,] articles designed for torpedo service and submarine mining and such other articles as the Central Government may, by notification in the Official Gazette, specify to be prohibited ammunition;
(i)prohibited arms" means-
(ii) firearms so designed or adapted that, if pressure is applied to the trigger, missiles continue to be discharged until pressure is removed from the trigger or the magazine containing the missiles is empty, or
(iii) weapons of any description designed or adapted for me discharge of any noxious liquid; gas or other such thing, and includes artillery, antiaircraft and anti-tank firearms and such other arms as the Central Government may, by notification in the Official Gazette, specify to be prohibited arms;
40. There is nothing on the record to suggest that the accused had committed the offence by any prohibited arms. There is no evidence on the record to show that the provisions of Section 27 of the Arms Act are violated. The evidence of recovery of cartridge, in the absence of link evidence, has already been rejected by us. The Sessions Judge has wrongly convicted the appellant Prem Nath Sonkar under Section 27 of the Arms Act and we are setting aside his conviction and sentence under Section 27 of the Arms Act.
41. In view of the above, the appeals are decide as under
1. Crl Appeal No. 1985 of 2005 of Prem Nath Sonkar is partly allowed. His conviction and sentence under Section 302/34 I.P.C. and under Section 25 of Arms Act are maintained but his conviction and sentence of death under Section 27 Arms Act is set aside. He is in jail. He shall be kept there to serve out the sentences awarded by the trial Court and affirmed by us.
2. Crl. Appeal No. 2615 of 2004 of Mahesh Balmiki is allowed. He is acquitted of all the charges. He is on bail. He need not surrender. His bail bond is cancelled and sureties discharged.
3. Crl.Appeal No. 2941 of 2004 of Rahul alias Shekhar Sonkar and Rishi Kumar alias Boby Sonkar is dismissed. They are on bail. They are directed to surrender before the C.M.M. Kanpur Nagar. C.M.M. Knapur Nagar is also directed to take them into custody forthwith for serving out the sentences awarded by the trial Court and affirmed by us.
42. Reference for confirmation of death sentence of appellant Prem Nath Sonkar alias Varun is hereby rejected.
43. Office is directed to send a copy of this order to the C.M.M. Kanpur Nagar within two weeks for necessary compliance and the concerned C.M.M. shall send his compliance report to this Court within a month.