JUDGMENT Imtiyaz Murtaza, J.
1. Above appeals have been filed against the judgment and order dated 6.1.2004 passed by Sessions Judge, Kanpur Nagar, in Sessions Trial No. 527 of 2002 whereby appellants Ashok Kumar Singh alias Gappu Bhadauriya, Arun Singh alias Raje Bhadauriya and Ajit Singh alias Guddu Bhadauriya have been convicted under Section 302 read with 34 I.P.C. and sentenced to death. In Sessions Trial No. 528 of 2002 Bauwa alias Rajesh Kumar Pandey has been convicted under Section 302/34 I.P.C. and sentenced to death. He is further convicted under Section 25/27 Arms Act but no separate sentence was awarded for the said charge.
2. Criminal reference No. 23 of 2004 is for confirmation of death sentence of these appellants.
3. Brief facts of the case are that a report was lodged against the appellants by Manish Awasthi at police station Nazirabad as case crime No. 195 of 2001 alleging therein that he is a resident of A/179D Ram Bagh, police station Bazariya, Kanpur. His brother Chakresh Awasthi had purchased house No. 111/443 from Amul Hitkari and obtained a power of attorney also from him. He was also handed over possession of the said house by the landlord. It is further stated that Ashok Singh Bhadauriya alias Gappu wanted to have forcible possession of this house. It was opposed by his brother. On account of this Ashok Singh Bhadauriya became inimical with his brother. On account of this enmity at about 7 p.m. on 30.10.2001 when informant, his brother Chakresh Awasthi and his friend Ashu Nigam were sitting in the verandah on the first floor and were busy in some conversation with each other. At the said time informant, Amit Nigam, brother of Ashu Nigam and Rewant Mishra were standing in the verandah. There was electric light in the verandah. Ashok Singh alias Gappu Bhadauriya, his brother Arun Singh alias Raje Bhadauriya, Ajit Singh alias Guddan Bhadauriya and their servant Bauwa Pandey armed with Rifle, Gun, Country made pistol and Revolver came there and challenged Chakresh Awasthi saying that they will teach him a lesson for purchasing the house. They all started firing at Chakresh Awasthi. They had raised alarm attracting several persons from the neighborhood. Everybody was shocked and started running away due to indiscriminate firing. The shot fired by them caused serious injuries to Chakresh Awasthi and his friend Ashu Nigam. They fell down on the floor. They had also fired in the air to create terror in the vicinity. All the shops were closed and traffic on the road was disrupted completely. They had left the place presuming them dead. Ashok Singh was armed with a D.B.B.L Gun, Arun Singh was armed with a Revolver, Ajit Singh was armed with a Rifle and Bauwa Pandey was armed with a country made pistol. After the assailants left the scenario they brought Chakresh Awasthi and Ashu Nigam to Regency Hospital. His brother Chakresh Awasthi was declared dead and Ashu Nigam was admitted in the Hospital for treatment. The report was lodged at the police station at 9.50 p.m. The distance of police station from the place of occurrence is one and half kms.
4. Post mortem of deceased Chakresh Awasthi was conducted by Dr. S.B. Mishra on 31.10.2001 at 3.30 a.m. on the order by A.D.M. City, Kanpur Nagar and C.M.O. Kanpur Nagar. Following ante mortem injuries on the person of the deceased were found :
1. firearm wound of entry 2 cm. x 2 cm. x abdominal cavity deep, present on the lateral side of the right lower abdomen, just above iliac crest, margins inverted, tattooing is present in an area of 11 cm. x 10 cm. all around the wound, margins are2 scorched.
2. fire arm wound of exit 3 cm. x 2.5 cm. x abdominal cavity deep, present on the lateral side of the left lower chest 17 cm. below the left Axilla, margins everted, communicative of injury No. 1, small intestine is lacerated and corning out of injury No. 2.
3. firearm wound of entry 1 cm. x 1 cm. x abdominal cavity deep, present on the lateral side of the left abdomen 9 cm. lateral to the umbilicus, margins inverted, charring is present around the wound.
4. firearm wound of entry 1 cm. x 1 crn. x bone deep present on the outer side of the left upper arm 12 cm. below the top of the shoulder, margins inverted charring present around the wound.
5. firearm wound of exit 12 cm. x 10 cm. x bone deep present on the inner side of the left upper arm, 5 cm. below left axilla margins everted, communicative of injury No. 4.
5. According to the opinion of the doctor cause of death was shock and hemorrhage due to fire arm injuries.
6. Injured Ashu Nigam had also succumbed to his injuries and his post mortem was conducted by Dr. M. Dikshit on 31.10.2001 at 5 a.m. He found following ante mortem injuries:
1. Firearm wound of entry 1 cm. x 1 cm. x bone deep on outer side of right upper arm 6 cms. Below top of right shoulder. Margins are inverted. Abrasion and grease collar present around the wound. Tattooing present around the wound underlying bone fractured.
2. Firearm wound of exit 1 cm. x 1 cm. x bone deep on outer side of right upper arm, 9 cm. below top of right shoulder and 5 cm. below and inner to injury No. 1 Margins are everted. Wound communicating to injury No. 1.
3. Firearm wound of entry 1 1/2 cm. x 1 1/2 cm. x chest cavity deep on right side of back 2 cm. below right scapula. Margins are inverted scorching present around the wound. Abrasion and grease collar present around the wound.
4. Stitched wound 18 crn. long ( with ten stitches ) situated on inner side of right upper arm right axilla and outer side of right upper chest. Wound communicating to injury No. 3.
5. Firearm wound of entry 1 cm. x 1 c. x abdominal cavity deep on right side of abdomen 6 cm. way from umbilicus and 14 cm. below and away from xiphisternum. Margins are inverted. Scorching and an abrasion grease collar present around the wound.
6. Firearm wound of exit 2 !/2 cm. x 2 1/2 cms. And abdominal cavity deep on outer side of left side abdomen just above left iliac crest, margins are everted. Wound communicating to injury No. 5.
7. Abraded contusion 3 cm. x 1 cm. size on outer part of right side abdomen 8 cm. above right iliac crest and 8 cm. away from injury No. 5.
7. In the opinion of the doctor cause of death was shock and temorrhage as a result of ante mortem injuries.
8. After registration of case S.K. Tripathi P.W. 9 had started investigation. He recorded the statement of Manish Awasthi at the police station and thereafter he reached at the place of occurrence on 31.10.2001 He inspected the place of occurrence, prepared its site plan, Ex. Ka 9. He recovered plain and blood stained earth, empty cartridges and bullet cases, plastic chairs and clothes of Manish Awasthi. The recovery memos were prepared by S.I. Raghupati Tripathi on his dictation. Recovery memos are Ex. Ka 10 to 14. On 1.11.2001 he recorded statement of Rewant Mishra and Amit Nigam. He arrested Arun Singh alias Raje Bhadauriya on 3.11.2001 and recovered a D.B.B.L. gun No. 153645 and one revolver and prepared the recovery memo Ex. Ka 15 on 4.11.2001. He arrested Ashok Singh and thereafter arrested Bauwa Pandey and recovered one country made pistol, one D.B.B.L. Gun and one Rifle. Its recovery memo was prepared. It is Ex. Ka 16. He also got registered one F.I.R. as case crime No. 851 of 2001 under Section 25 Arms Act. He has sent the weapons for analysis to Scientific Laboratory, Lucknow through constable Amar Singh. He submitted charge sheet Ex. Ka 17.
9. He also admitted that in the documents sent along with the weapons there occurred a mistake in the number, but the weapons are the same, which are well connected with the offence. He admitted that he had not recorded the statement of Amul Hitkari nor he had examined the papers regarding ownership of the house. He further stated that he did not record the statement of witnesses of the neighbouring houses because no one was ready to give evidence. He had also not recorded the statement of B. Nigam whose name is mentioned at the time of admission of Ashu Nigam in the Hospital record. The letter which was received for admission of Ashu Nigam shows the time of admission mentioned therein as 9.09 p.m. and the time of death was 10.55 p.m. Address of Ashu Nigam was mentioned in this memo as 12/M/14 Dabauli, Kanpur, The address of B. Nigam was also mentioned as 12/M/14 Dabauli, Kanpur. He had not interrogated the driver of Tempo who had brought the deceased to the Hospital. He further stated that witnesses had told him that Bauwa Pandey is servant of Ashok Singh. He submitted the charge sheet, thereafter the case was committed to the court of Sessions for trial of these accused.
10. During the trial prosecution has relied upon 12 witnesses, namely P.W. 1, Manish Awasthi, informant of the case, P.W. 2, Amit Nigam an eye witness, P.W. 3, Dr. M. Dikshit who conducted post mortem examination of Ashu Nigam, P.W. 4, Head Constable Najar Singh, who escorted the dead body of Ashu Nigam for post mortem examination, P.W. 5, constable Ram Prakash had escorted the dead body of Chakresh Awasthi for post mortem examination. P.W. 6, Dr. Farhat Shahin, is Serologist in Scientific Laboratory, Lucknow. She had prepared the report of articles, which is Ext. Ka 5. P.W. 7 constable Razi Ullah Khan had prepared chik F.I.R. and G.D. entries which are Ext. Ka. 6 and Ka. 7. In the cross-examination, he stated that control room was informed by R.T. set. Control room is situated at Kotwali, which enters the information sent from different police stations. P.W. 8, V.Ram is Ballistic Expert. He had prepared the report Ext. Ka. 8. P.W. 9 is Shyama Kant Tripathi. P.W. 10 is Sub-inspector Umesh Chandra, he initially investigated the case crime No. 851 to 853 of 2001 and thereafter the investigation of the case was transferred to M.P. Sandonia, P.W. 11 Jaivir Singh had prepared the inquest report of Chakresh Awasthi, prepared letters to R.I., C.M.O., Ext. Ka 20 and Ka. 21 challan nash and seal, which are Ext. Ka 22 and ka 23. He also prepared the inquest report of Ashu Nigam. He prepared form No. 33, letter to C.M.O., seal, photo nash, letter to R.I. which are Ext. Ka 25 to ka 29, P.W. 12 constable K.D. Dikshit ha prepared the chik F.I.R. of crime No. 851 to 853 which is Ext. Ka 30 and its G.D. entry is Ext. Ka 31.
11. Ashok Singh Bhadauria had filed his written statement and the defence had also produced D.W. 1 Santosh Singh, S.I. Radio Anurakshak Adhikari, City Control Room, Kotwali, Kanpur Nagar. He stated that on 17.5.2003 he was posted as R.M.O. and log book was prepared in the control room which was prepared by the operator on duty. Date and time and all the informations are entered in the said log book. He stated that in the officer grade log book it is mentioned that on 30.10.2001 at 8.37 p.m. information was received that S.P. South had informed that spot location is 80 ft road and A.D.M. City had informed that A.C.M. VI shall reach Regency Hospital and look after the affairs. On 30.10.2001 at 8.45 p.m. information was entered that two students of D.A.V. College are injured. One of them had expired and other is under treatment. At 8.50 it is entered that security for the house of Chakresh Awasthi be made. At 9.55 p.m. it is entered that public are not permitting to bring down the dead body. On 30.10,2001 at 10.45 p.m. Tiger asked to do the checking effectively, the ages of the culprits are 28 to 35 years and they have Tata Sumo, Santro and Bulerro and they can escape to anywhere, all the vehicles should be checked effectively. He stated that in all these informations entered in the log book name of the accused is not mentioned. In the officer grade log book except a reference of 80 ft road no other information about the murder is entered. In the log book of the same day at about 11.10 p.m. Panther 'A' had informed that inquest is completed but copy of F.I.R. is required. Police stations were contacted but the copies of inquest report were not available with the police stations. Photo copy of the log books are Ext. Kha 1 to kha 6.
12. Sessions Judge relying upon the prosecution evidence convicted the accused persons, as aforesaid.
13. Learned counsel for the appellants vehemently argued that there is delay in lodging the report, log books of the control room indicate that till the preparation of inquest memos nobody was named as an accused hence the F.I.R. is ante timed. There is conflict in the post mortem report and the eye-witness account. No independent witness or any witness of the locality is examined in support of the prosecution case. Presence of eye-witnesses, namely, P.W. 1 Manish Awasthi and P.W. 2 Amit Nigam at the place of occurrence is highly doubtful. Prosecution also failed to prove the motive in the said crime.
14. We have heard the learned counsel for the parties and perused the entire record. The conviction of the appellant is founded on the ocular account furnished by P.W.I Manish Awasthi & P.W.2 Amit Nigam.
15. P.W. 1 Manish Awashti is the informant of the case, he is real brother of the deceased Chakresh Awasthi. He stated that Chakresh Awasthi had purchased House No. 111/443, Ashok Nagar and obtained power of attorney in his name by Amul Hitkari, the owner of the house. Possession was handed over to his brother and power of attorney was also registered. He stated that they are not residing in 311/443. They only visited the said house on 31.10.2001 at about 7 p.m. Chakresh Awasthi and his brother Ashu Nigam were talking to each other in the Verandah of the house No. 311/443 and he alongwith Amit Mishra and Rewant Mishra were standing and talking to each other when the accused came there. There was light of bulb. At that time Ashok Singh alias Gappu Bhadauriya was armed with a D.B.B.L. gun, his brother Arun Singh alias Rajey Bhadauriya with a Revolver, Ajit Singh alias Guddu Bhadauriya was armed with a Rifle and their servant Bauwa Pandey was armed with country made pistol. They came from the southern side of the Verandah. Gappu Bhadauriya challenged his brother Chakresh Awasthi and told him that he will teach them a lesson for purchasing the house. All the accused immediately started firing from their respective weapons. Both the persons fell on the ground from their chairs. He alongwith Rewant Mishra and Amit Nigam raised alarm. It is further stated that they also fired at them but they escaped their shots by entering into the adjacent room. Several persons heard gun shot reports, but due to indiscriminate firing nobody came near the place of occurrence. Considering Chakresh Awasthi and Ashu Nigam dead they fired in air in jubilation and went away. After the assailants left the place he examined his brother and Ashu Nigam. Finding them alive he brought them to Regency Hospital for treatment. The doctors in Regency Hospital declared his brother Chakresh Awasthi dead and admitted Ashu Nigam for treatment. The accused had fired upon the two ft-deceased from 4-5 steps. He prepared the first information report after taking a blank paper from a P.C.O. and came to the police station. There he handed it over to the constable. After registration of the report its carbon copy was given to him, Ex. Ka 1. Photo copy of the power of attorney obtained by Chakresh Awasthi was brought on record as Ext. Ka. 2. Investigating officer recorded his statement and site plan was prepared on his pointing out. In the cross-examination he stated that he alongwith his brother resides in house No. 104A/179B Rambagh, police station Bazariya. His brother was a student leader. He was an active member of Bhartiya Janta Party. He stated that he is not a student leader nor he is member of any political party. He is a private agent in R.T.O. Office. He works for preparation of licences and registration of vehicles. At the time of occurrence his brother was a student of M.A. I year in D.A.V. College. He stated that his brother was not prosecuted under Section 3/4 Goonda Act in case crime No. 42 of 1997 and he further stated that he had no knowledge if he was prosecuted. He had no knowledge that his brother was arrested in the year 1997 under Arms Act. He had no knowledge that his brother was prosecuted in the year 1998. He had no knowledge whether his brother was prosecuted in a case under Section 307 I.P.C. police station Chaman Ganj. He did not know that his brother was prosecuted in case crime No. 10 of 1995 under Sections 323, 504, 506 I.P.C. He feigned ignorance that his brother was prosecuted in case crime No. 303 of 1992 under Sections 147, 148, 149, 504, 506 I.P.C. or crime No. 6 of 1991 or 9 of 1991 under Section 25 Arms Act. He also denied any knowledge that several non-rcognizable reports were registered against his brother. He further stated that he had no knowledge about the criminal activities of his brother. Chakresh Awasthi and Ashu Nigam were witnesses in case crime No. 179 of 2000 under Section 302 I.P.C. He did not know that Sardar Narendra Singh was the informant in the said case. He pleaded that his brother had filed an Affidavit in case crime No. 134 of 2001 State v. Narendra Singh under Sections 504, 506 I.P.C. It was stated therein that Narendra Singh had threatened him. He did not know that Ashu Nigam was threatened by the complainant in a case State v. Amarjeet, under Section 302 I.P.C. and filed an affidavit to this effect. He was also General Secretary of D.A.V. College probably in the year 1989-90. From 1989 he was student of D.A.V. College till his death. He did not know about any election related enmity of his brother with any one. He used to run a gambling house and used to run an arms factory is not within his know. No sale deed was executed with regard to house No. 111/443, Ashok Nagar. Only power of attorney was executed. He did not know that Laxmi Shanker Choudhary, Rajesh Kumar Choudhary, Smt. Usha Srivastava, Smt. Lakhpati Devi were joint owners of this house. He did not know the names of the tenants of the said house. He could not confirm that there are 20-40 tenants in the house. He did not know that Amul Hitkari was a tenant in the said house. He stated that Amul Hitkari was staying in his portion as an owner of the house, which was purchased by his brother. There is a ground floor and a First floor. There were four rooms in the ground floor and first floor. There are two Verandahs, one in the ground floor and another in the first floor. The possession of the house was handed over to his brother on 20.10.2001 and he alongwith his brother started staying there, they had shifted bed, chairs and stools to this house. Bauwa Pandey was the servant of Ashok Singh and this was told to hind by Amit. Ashok Singh has been running cable operation. He is known because of his terror. He knows that Ramesh Dubey is a tenant in 111/443. He is possession by him. He did not know that a case was registered against him on the application of Ashu Nigam. Chakresh Awasthi on one hand and Ramesh Dubey on other side wanted to take possession of the said house was not known to him. He further stated that it is wrong to suggest that his brother had several enemies due to political and election disputes. He stated that he was an independent candidate for Sabhasad in the Nagar Nigam election and was defeated by Prakash Agnihotri. He stated that he has licences for Revolver and Gun. There are two stairs for entry in this house. One is on southern side and another on eastern side. The Verandah is 7 ft wide and 6 ft in length. Regency Hospital is 5-6 kms from the place of occurrence. Tempo had taken 45 minutes or an hour in reaching the Hospital. The doctor had attended the two injured in the reception Hall. He prepared his written report in Regency Hospital, P.C.O., from where paper was obtained, is only 5-6 steps from the Hospital. He went to the police station by his scooter, which was brought there by Alok Dubey. He had taken 10-15 minutes in writing the F.I.R. and 10-15 minutes in reaching the police station. He took about 5 minutes in placing the injured in the Tempo. Head Moharrir had given him the carbon copy and thereafter the Inspector met him and the narrated the whole occurrence to him. After registration of the report he came to the place of occurrence alongwith the Inspector. His house was locked. He possessed keys and opened the lock. On the date of occurrence he did not go to R.T.O. office. Normally he used to go there at 9.30 a.m. and return by 5 p.m. On the date of occurrence he arrived at 5.30. p.m. Chakresh Awasthi, Ashu Nigam and Amit Nigam were already there when he came there. Rewant Mishra had reached there half an hour later. Chakresh Awasthi and Ashu Nigam were sitting on the chairs. They were standing in front of the room on the left side of the Verandah. His brother's leg was amputed and replaced by an artificial leg. He kept the artificial leg in the Almirah.
16. P.W. 2 Amit Nigam stated that Ashu Nigam was his brother. He was a friend of Chakresh Awasthi. On 30.10.20001 at 7 p.m. they were talking to each other in House No. 111/443. Ashok Nigam and Chakresh Awasthi had purchased this house from Amul Hitkari. He had executed a power of attorney in his name. He had also given the possession of the house to him. Ashu Nigam and Chakresh Awasthi were sitting on the chair; there was light of bulb inside and outside the Verandah. At about 7 p.m. Ashok Singh alias Gappu Bhadauriya armed with D.B.B.L. Gun, Arun Singh Bhadauriya armed with Rifle, Ajit Singh Bhadauriya armed with Rifle and servant Bauxva Pandey armed with country made pistol came there. Ashok Singh challenged Chakresh Awasthi and told him to teach a lesson for purchasing the house and thereafter all of them started firing at Ashu Nigam and Chakresh Awasthi. They fell down from their chair after receiving the injuries. They raised alarm. Assailants had also fired at them but they escaped because they had entered into the room. The accused then started firing in air. Treating Chakresh Awasthi and Ashu Nigam dead they ran away. He stated that thereafter he alongwith Manish Awasthi and Rewant Mishra took both the injured to Regency Hospital for treatment. Chakresh Awasthi was declared dead on arrival and his brother Ashu Nigam was medically examined. In the meantime his grand father also reached there and got his brother admitted. His brother succumbed to his injuries at 11 p.m. In the cross-examination he stated that his statement under Section 161 Cr.P.C. was recorded on 1.11.2001 in the house of Manish Awasthi. After the occurrence and till his statement under Section 161 Cr.P.C. he remained in Kanpur. Firstly, statement of Rewant Mishra was recorded and thereafter his statement by investigating officer. Before the occurrence he visited the disputed house only once. The house was purchased by Chakresh Awasthi, who was a close friend of his brother Ashu Nigam. Both were students of same college. He stated that he is a distributor of Pepsi Cola. On the date of occurrence, he returned before the scheduled time to his house and thereafter he went to the house where the incident occurred. He came early to his house to attend to some personal work. There are rooms in left and right side of the Verandah. He told the investigating officer that he was standing in front of a room.
He never disclosed to the investigating officer that he was standing outside the courtyard. He did not know how the investigating officer mentioned in his statement to him that he was talking in the courtyard. When he reached the place of occurrence chairs were lying in the Verandah. His brother and Chakresh Awasthi were talking while they were sitting on the chairs. He told to the Investigating Officer that his grand father reached the hospital but he could not tell the reason why the investigating officer had not mentioned it therein. His grand father reached the Regency Hospital after five minutes of their reaching at the reception Hall. His brother used to reside with him. Dabauli is at a distance of 6-7 kms from his house. His grand father knew about his and his brother's address. He lacked knowledge that his brother was accused in case crime No. 101-A of 1998 under Sections 323, 504, 506 I.P.C. He feigned ignorance that he was a witness in case crime No. 101 of 1998 under Section 307, I.P.C. He had no knoweldge that his brother was witness alongwith Chakresh Awasthi in a case State v. Amarjeet Singh and they had filed affidavits for not giving evidence. He also pleaded lack of knowledge that informant of that case had threatened them for not giving evidence. He did not know that his brother was associated with Land Mafia. He had no knowledge that his brother used to run a gambling house in connivance with the police of Nazirabad. He denied that his brother lived with his grand father.
17. P.W.3 is Dr. Mukesh Dikshit. He had conducted the post mortem of Ashu Nigam on 31.10.2001 on the direction of A.D.M. (City), Kanpur Nagar and Chief Medical Officer, Kanpur Nagar. The dead body was identified by constable Najar Singh and Ram Swaroop. Post mortem report is already mentioned in the earlier part of the judgment. The death occurred due to cumulative effect of ante mortem injuries. His post mortem report is Ext.Ka.3.
18. P.W.4 is Constable Najar Singh. On 30.10.2001 he was posted as Head Constable at Police Station Nazirabad. On the direction of Sub-inspector Jaivir Singh he reached the Regency Hospital. Inquest of dead body of Ashu Nigam was prepared by Sub-inspector Jaiver Singh and he also prepared the relevant papers and sealed the dead body. It was handed over to him and Constable Ram Swaroop for the post mortem. He reached the post mortem house in the morning at 5 a.m. After the post mortem he was handed over the articles recovered from the dead body in a packet, which he deposited at the police station.
19. P.W.5 is Constable Ram Prakash. He received the direction from the police station for reaching the Regency Hospital. He reached there in the night alongwith Constable Ganesh Prasad. The sub-inspector prepared the inquest of Chakresh Awasthi and also prepared all the connected papers. The dead body was sealed and handed over to them for the post mortem. They brought the dead body and relevant papers in the office of R.I. and after it was forwarded he deposited it alongwith its papers in the Mortuary.
20. P.W.6 is Dr. Farhat Shahin, She is a Senior Scientific Assistant in Vidhi Vigyan Prayogshala, Lucknow. She received articles of case crime No. 195/01 for analysis. She conducted the analysis according to rules and prepared her analysis report, which is Ext.Ka.5. She found human blood in Exts. 1, 4, 6 & 8.
21. P.W.7 is Constable Razi Ullah Khan. He was posted as Head Moharrir at the said police station. He registered the first information report at case crime No. 195/01. He prepared the chik report of case crime No. 195/2001 registered on the report of Manish Awasthi. Chik report is Ext.Ka. 6. He entered the report in G.D. No.26, which is Ext.Ka.7.
22. P.W.8 is V. Ram. He is a Ballistic Expert in Vidhi Vigyaan Prayogshala, Lucknow. He stated that on 27.11.2001 he was working on the said post. He received the articles of case crime No. 195/01 and conducted its examination according to rules. His report is Ext.Ka. 8.
23. In the cross-examination he stated that it an injured person is lying on the floor and the assailant is standing then the shape of the wound can be oval instead of being round and if there is scorching in the wound then it can be a shot fired from less than one ft. If there is charring also present in the wound then the distance can be less than one ft.
24. P.W.8 was recalled for re-examination because in examination-in-chief he stated that in his report, Ext.Ka.8 he mentioned the number of D.B.B.L. gun as 2A-338, but in the sealed bundle D.B.B.L's. No. 5 B 9501099 were mentioned. Similarly in Ext.Ka.8 the number of rifle is mentioned as NAB 01/4588, but the number of rifle, which was used, is 21224. He also admitted that in the letter sent by the police different numbers were mentioned than the numbers of the weapons which were inside the bundle. He further stated that he had examined D.B.B.L. 12 bore gun No. SV 9501099 only and he did not examine any other gun. Similarly he stated that he examined the rifle bore 275 made in Chekoslavabia No. 21224 and he did not examine any other rifle. He admitted that he did not seek any clarification from C.M.M. about the variations in the number of the weapons in the letter.
25. P.W.9 is Shyama Kant Tripathi. He is the investigating officer of the case. He recorded the statement of Manish Awasthi at the police station and thereafter proceeded the the place of occurrence. He recorded the statement of Alok Dubey and prepared the site plan, Ext.Ka. He collected plain and blood stained earth, empty cattridges, bullet and empty cases, plastic chairs and clothes of Manish Awasthi. Recovery memo was prepared by the Assistant Sub-inspector Raghupati Tripathi. The recovery memos are Exts.ka 10 to 14. He recorded the statement of Rewant Mishra on 1.11.2001 and there after he recorded the statement of Amit Nigam. He arrested the accused A run Singh @ Raje Bhadauria on 3.11.2001 and recovered a D.B.B.L. gun No. 153645 and revolver No. F.G.6748 from him. He prepared its recovery memo Ext.Ka. 15. On 4.11.2001 he arrested Ashok Singh and thereafter he arrested Bauwa Pandey and recovered a country made pistol, one D.B.B.L. gun and a rifle. Apart from this he recovered a D.B.B.L. gun and one rifle from the box. He prepared recovery memo, Ext. Ka. 17 and got registered case crime No. 851/01 at the police station. Recovered weapons were sent for comparision to Vidhi Vigyan Prayogshala, Lucknow through constable Amar Singh. He identified the weapons, which were recovered, Ext 3 & 4 and other articles. He admitted that he wrongly the number of the weapons on docket. He explained that other weapons were also recovered and due to some confusion this mistake had occurred. He admitted that he had not recorded the statement of Amul Hitkari. He had not found pellet mark on the floor or wall of the house where incident occurred. He had not found any eye witness at the place of occurrence. He had not recorded the statement of B. Nigam, who got Ashu Nigam admitted in Regency Hospital. Time of admission of Asha Nigam in the hospital is mentioned as 21.09 hrs. Time of death is mentioned as 22.55 hrs. and the address of Ashu Nigam is mentioned 12/M/14, Dabauli, Kanpur. It is address of B. Nigam who admitted Ashu Nigam in the hospital. His address was noted against his name in the medical report.
26. P.W.10 is Sub-inspector Umesh Chandra. He stated that on 4.11.2001 he was posted at police Station Naubasta and case crime No. 851/2001 connected with case crime No. 853/2001 was got registered by Shyama Kant Tripathi. He prepared the chik report and recorded the statement of accused and thereafter the investigation was transferred from him.
27. P.W. l1 is Sub-inspector Jaiveer Singh. He stated that on 30.10.2001 he was posted as Sub-inspector at police station Nazirabad. He received instructions for preparing the inquest of case crime No. 195/01. He prepared the inquest of Chakresh Awasthi, which is Ext.Ka-18, its photo lash, Ext.ka-19, letter to R.I. and C.M.O. Ext.Ka-20 and 21. He also prepared the challan lash and sample of seal, Exts.Ka-22 & 23. He handed over dead body and relevant papers to Constable Ram Prakash and Ganesh Prasad. He received second information at 11.45 P.M. about the death of Ashu Nigam and had received instructions for conducting inquest at 00.30 a.m. Inquest memo of Ashu Nigam is Ext.Ka-24, Challan lash and letter to C.M.O., sample of seal, photo nash, letter 16 R.I. was Was also Prepared which are Ext.ka. 25 to 27. He handed over the dead body to Head Constable Ram Swaroop and Najar Singh for the post mortem. He completed this inquest at 1.30 P.M.
28. P.W. 12 is Constable K.D. Dixit. He prepared the chik No. 360 on 4.11.2001 of case crime Nos. 851, 852, 853/2001 on the basis of report lodged by S.K. Tripathi. He prepared G.D. No. 38, which is Ext.Ka.31.
29. The defence case is of denial. They Produced D.W.1 Sub-inspector Santosh Singh, Incharge of City Control Room. He produced log book entries of date 31.10.2001. The entries of log book are kha 1 to kha 6. They have also filed affidavit of Ashu Nigam, Ex.Kha-7, statement of Chakresh Awasthi under Section 200 Cr.P.C., kha 8, Chrgesheets kha-9 and kha-10. The order passed by District Magistrate against Chakresh Awasthi kha-12. Appellant Ashok Singh alias Gappu Bhadauria had filed a written statement under Section 313 Cr.P.C. He had stated that Chakresh Awasthi and member of his gang wanted to grab the house on the basis of forged power of attorney obtained by standing one fake person as owner of the house. He used to threaten the tenants. On this account actual owner and tenants were inimical. Ramesh Dubey also wanted to grab this house and there was very strong enmity between Ramesh Dubey op the one hand and Chakresh Awasthi and Ashu Nigam on the other. After the murders of Chakresh Awasthi and Ashu Nigam Ramesh Dubey entered into the house. Chakresh Awasthi being a student leader had enmity with several persons. Chakresh Awasthi was an old criminal and he had several enemies. Chakresh Awasthi had married Vandana, who is his niece and brother, father and her other relatives were also inimical to him. The informant Manish Awasthi had also criminal background. He further stated that witnesses are also criminal and they were not present on the place of occurrence. Report was lodged after consultation and deliberation. He was arrested from his house and the police has wrongly shown their arrest arid recoveries of the said weapons from them.
30. We have heard learned counsel for the parties all length.
31. As it becomes manifest from the above facts that the conviction of the appellants was based upon the testimony of two eye witnesses alone, namely P.W.1 Manish Awasthi, the informant of the case and P.W.2 Amit Nigam. Both these witnesses are close relatives of the two deceased. P.W.1 Manish Awasthi is brother of deceased Chakresh Awasthi, and P.W.2 Amit Nigam is brother of deceased Ashu Nigam. It is well settled that the evidence of a witness can not be diseased merely on the ground that he is either partisan, interested or both if otherwise the same is found to be reliable. This (sic)equally applies to a relative witness as well.
32. P.W.1 Manish Awasthi has described the prosecution case in great detail. He is the author of the written report Ex. Ka-1. He described the essential features of the prosecution case, which finds full corroboration from the post mortem report as well as Ballistic Expert's report. We have already discussed his evidence in full detail earlier.
33. Similarly P.W.2 also described the prosecution case in all details. He has fully supported the version of P.W.1 Manish Awasthi. The testimony of both these witnesses inspire full confidence. His evidence has also been discussed by us earlier.
34. Learned counsel for the appellants had challenged the findings of the Sessions Judge on the ground firstly, that there is unexplained delay in lodging the report. According to the prosecution case occurrence is alleged to have taken place at 7.00 p.m. on 30.l0.2001 and the first information report is lodged at 9.50 p.m. The distance of the police station from the place of occurrence is only 1 -1/2 km.
35. Considering the submissions of the learned counsel for the appellants we are of the opinion that there is no such delay in lodging the report to doubt the prosecution case. A perusal of the first information report indicates that the informant had firstly taken the two injured to Regency Hospital, which is at a distance of 5-6 km from the place of occurrence. The prime consideration of the informant and other witnesses was to save their lives so it was but natural for them to arrange for their treatment before going to lodge any report. The police station is at a distance of only 15 minutes from the Regency Hospital.
36. A perusal of this statement of P.W.1 indicates that he had prepared the first information report at the Regency Hospital itself. He had collected paper from the nearby P.C.O. He took 10-15 minute in preparing the written report and thereafter proceeded for the police station to lodge the report. According to his Own statement it took him about 45 minutes in reaching Regency Hospital from the place of occurrence. He had to cover the distance through heavy traffic. He is real brother of the deceased Chakresh Awasthi. On reaching the hospital his brother was declared dead. It must have taken him some time to recover from the shock. It is not at all expected that be will immediately rush to lodge the report without making any effort to save the life of his real brother. His medical examination must have taken sometime. He gave the duraitions on an approximation. He was not expected to check his watch at such (sic) hour. Two and 15 minutes taken in lodging the report cannot be said to be improper by any stretch of imagination. The report, therefore, is not delayed at all. Submission made to the contrary is hereby strongly repelled.
37. The next submission of the learned counsel for the appellants is that the presence of the informant at the time of occurrence is doubtful. It has come in evidence that he is a private agent in the Regional Transport Office so he could not he present at the time of occurrence at the said house. P.W.1 has stated that he is not government employee in the Regional Transport Office. He is not even a registered agent. His work is only to get the preparation of licence and registration of vehicles for those who approach him. The evidence on record indicates that there was some dispute with regard to the possession of the house and Chakresh Awasthi had obtained the possession of the house on the basis of a power of attorney.
38. It appears that to make their possession effective the house all of them collected there. They must be fully aware of the fact that the accused are equally keen to grab this house. This makes their presence plausible with the two deceased. He has fully described the manner of assault. He also lodged the written report promptly apart from taking the injured to Regency hospital. It clearly establishes that he was present in the said house at the time of occurrence.
39. The fact that this witness was having his living and residence in a different locality from his brother hardly has, any bearing upon his presence. It has not been elicited in his evidence that there existed no affinity between them. Has there been any serious acrimony between them the contention may have some force. So we do not find any impropriety or improbability in his presence at the place of occurrence when this incident happened.
40. Another submission of the learned counsel for the appellants is that none of these witnesses had received any injury, which indicates that they were not present at the time of occurrence. The testimony of the witnesses can not be rejected solely on the ground that they Had not received any injury. The witnesses have fully explained the manner of assault and they have also stated that they entered inside a room to save themselves wh(sic) the assailants turned their attention towards them. Apart from this the evidence on record indicates that Chakresh Awasthi and Ashu Nigam were the main target of the assailants. The post mortem report clearly indicates the deceased suffered their injuries from a sufficiently close range. These witnesses were standing a little away from the two deceased. On coming to the spot the accused straight away rushed to the two deceased who were busy in conversation facing each other It was enough for these witnesses to rush into the room. They were Standing in front of its door. The assailants hardly exposed any interest in them. The recovery of the weapons from the accused on their attest and confirmative opinion of the ballistic expert about their employment in the offence provides strong corroboration to their participation in the incident.
41. It is also relevant to mention here that nothing has been suggested why the informant and other witnesses are falsely implicating the accused persons leaving the actual assailants. No motive for false implication was elicited from them except that they happen to be brothers of the two deceased.
42. Next submission of the learned counsel for the appellant son the presence of informant and Amit Nigam at the time of occurrence being doubtful is that the medical examination import of Ashu Nigam indicates that he was brought to the hospital by his grand father and it is not mentioned that he was brought to the hospital by P.W.1 Manish Awasthi or P.W.2 Amit Nigam. It is strenuously contended that if any of these persons brought the injured to the hospital their names ought to have been mentioned in the record of the hospital. It is hot always necessary for the doctors to mention the name of the person who actually brought the injured to the hospital. P.W.1 stated that Chakresh Awasthi was declared dead on examination. This witness would withdraw from the scene for preparing his report. Ashu Nigam therefore, must have been examined by the doctor a few minutes later. In the meantime the grand father might have arrived at the hospital when the question of his admission arose, he being a responsible person might have come forward and his name, thus, occurred in hospital record. No inference as suggested can necessarily be drawn. Besides to infer the absence of P.W.1 & P.W.2 at the scene of occurrence only because their names have not been noted by the doctor in the medical register would be a most illogical inference. The presence of the witnesses is to be judged on the credibility and reliability of their testimony. It has come in evidence that P.W.1 had taken his brother to the hospital and when he was declared dead he proceeded for lodging the report. The presence of the witnesses therefore, can not be disbelieved solely on the ground that the names of these witnesses are not mentioned as the persons who brought the injured to the hospital.
43. Learned counsel for the appellants has placed reliance on the R.T. messages received and recorded in the control room to prove that the first information report was not in existence and it is ante timed. D.W.1 was produced to substantiate their submission. He stated that in the R.T. message received on 30.10.2001 at 20.37 it is mentioned that location is 80 ft. road and A.D.M.(City), Kanpur Nagar had asked the A.C.M. VI to reach the Regency Hospital at 20.45. It is also mentioned that out of the two injured students of D.A.V. college, one had expired. At 20.50 p.m. there is an entry for security of the house of Chakresh Awasthi. At 21.55 p.m. it is mentioned that public is not permitting to bring down the dead body. On 30.10.2001 at 22.45 p.m. it is mentioned that accused are within the ages of 28-35 years and they had Tata Sumo and other vehicles and a direction for effective checking of the vehicles was given.
44. In the same breath it is pointed out that in the message of 23.10.2001 it is mentioned that Panther 'A' had informed that inquest is completed and copy of the first information report is request and it is also mentioned that when the police station was contacted the copies of the inquest report had not reached at the police station. On the basis of the above messages learned counsel for the appellants has vehemently argued that uptill 30.10.2001 copy of the F.I.R. was not ready.
45. We have considered the submission of the learned counsel for the appellants and perused the statement of D.W.1 in detail. Our conclusion is that the submission of the learned counsel for the appellants is not borne out from these R.T. messages. First three R.T. messages are purely academic and do not come to the rescue of the defence. The two remaining messages need a bit of scrutiny. Firstly none of messages proved by D.W.1 pertain to the police station where the F.I.R. was registered. Message at 22.45 p.m refers to the ages of the culprits and the vehicles they were using to make their escape good. First message was only for a limited purpose to thwart any escape of these culprits out of the town so whatever was necessary for the said purpose was relayed to the local police force everywhere. Who dispatched the message and how much information was in his possession ought to have been proved by examining that police officer. No inference adverse to the presence of these witnesses follows from it. Analyzing the message of Panther 'A' we find that for the first time the concerned police station was contacted but for a different purpose i.e. receipt of memos of inquest there. Unless the person who prepared the inquest is cross examined on the point and Panther 'A' is examined by defence nothing adverse is possible. Panther 'A' is a code name of some police officer. Inquest of Chakresh Awasthi was started at 10.15 p.m. and concluded at 10.30 p.m. This is not disputed at all.
46. A perusal of the inquest report indicates that in the name of the column for the informant, name of P.W.1 Manish Awasthi is mentioned therein. The column for nature of the report indicates " BHAI KO GOLI LAGNE SE MRITYU HONA" After the conclusion of the inquest dead body was sent for post morteml examination. List of enclosures appended with inquest report indicates that F.I.R. was also one of the enclosures.
47. A perusal of the R.T. message further clearly indicates that information was given to all the police stations for the arrest of the accused. Therefore the copy of the F.I.R. was required by the police officer who relayed the said message. It might have been done before the copy of the F.I.R. was received by him in abundant precaution.
48. The contention of the learned counsel for the appellants that F.I.R. was not in existence uptill 30.10.2001, therefore, is not acceptable. The administration showed extraordinary alertness because the two deceased were student leaders to avoid any undue student disturbance.
49. Learned counsel for the appellants has also challenged the report of Ballistic Expert. The investigating officer had collected empty cartridges and cases of bullets from the place of occurrence. P.W.9 S.K. Tripathi had recovered the weapons of assault from these accused persons. The Same were sent for examination to Ballistic Expert and the report of Ballistic Expert is Ext.Ka. 8. Ballistic Expert's report is that the cartridges were fired form the recovered weapons. Appellants' counsel submitted that there is mistake in the number of the weapons on the docket, which was sent to the Ballistic Expert for examination alongwith the weapons. The investigating officer had admitted that due to some error because of recovery of several weapons wrong number was mentioned on the docket.
50. We have considered this submission of the appellants counsil recovery memos of the empty cartridges as well as weapons which were recovered by P.W.9, S.K. Tripathi. Recovery memos contained the number of the gun and the same gun was examined by the Ballistic Expert. We, therefore, come to a definite conclusion that the recovered cartridges were fired from the said weapons. Merely on account of some error or mistake in the numbers mentioned on the docket by the investigating officer it can not be said that these weapons were not used especially when evidence of the eye witnesses and evidence of recovery inspires confidence with regard to the use of weapons and the empty cartridges recovered from the place of occurrence. The fired cartridges were recovered after the occurrence 31.10.2001 and recovery memo was prepared in the presence of the witnesses and the weapon was recovered on 4.11.2001. The copy of the recovery memo of the weapons was given to the accused also. The only conclusion, which follows is that these weapons were used in the incident and recovered cartridges were fired from these weapons. It is pertinent to mention that all the recovered weapons from these accused were submitted to the ballistic expert. The mistake referred to above, therefore, fails to impress us.
51. As regard submission by the learned counsel for the appellants that the independent witnesses were not produced regarding recovery of firearmsz. P.W.9 S.K. Tripathi had recovered the weapons and thereafter a report was lodged under Arms Act Recovery memo Ext.ka. 15 & 16 were prepared. So far as the production of other witnesses are concerned, several efforts were made. There is no suggestion that due to some influence of the investigating officer witnesses were not produced. There is no ground for disbelieving the testimony of P.W.9 only on this ground. We have also considered the order of the Sessions Judge. He had considered the objection regarding non-production of Other witnesses carefully and has given good reasons for non-examination of other witnesses. We see no reason to disbelieve the recoveries on this ground.
52. The testimonies of eye-witnesses stand corroborated by first information report and medical evidence on record and recoveries of weapons also find full corroboration from the ballistic expert's report. We find that the learned trial judge was perfectly justified in accepting the prosecution case. The prosecution has proved its case beyond any reasonable doubt.
53. Lastly, learned counsel for the appellants submitted that Sessions Judge was not justified in imposing the death penalty in the facts and circumstances of the case. The Sessions Judge has assigned his reasons for awarding the death sentence. The reasons assigned are that deceased Chakresh Awasthi was invalid and he has only one leg. He was in possession of a house on the basis of an agreement to sell and a power of attorney. The murders were committed by licensed weapons and country made pistol. The murders were well planned and deceased were aged about 28 and 30 years.
54. Taking all the facts and circumstances of the case we are of the opinion that the present case does not fall within the purview of a rarest of rare case nor it can be held to be an exceptional case where lesser Sentence of life imprisonment is unquestionably foreclosed. It could also not be said that the appellants are such dangerous persons that to spare their lives will endanger the community at large. We are also not satisfied that the Circumstances of the crime are such that there is no alternative but to impose death sentence. In this view of the matter we are unable to uphold the death sentence passed by learned Sessions Judge. We accordingly supplement the same with the sentence imprisonment for life.
55. For the reasons stated above, while affirming the conviction of appellants under Section 302/34 I.P.C. we set aside the sentence of death imposed by the trial court and instead sentence them to imprisonment for life. The appellants are in jail and they shall remain there to serve out their sentences as modified by this court. Reference made by the learned Sessions Judge is, therefore, rejected.