JUDGMENT Imtiyaz Murtaza, J.
1. Since all the appeals arises out of judgment and order dated 5.8.2003 passed by Additional Sessions Judge, Court No. 1, Bareilly in S.T. No. 855 of 2001, therefore all the appeals are decided by this common judgment.
2. Criminal appeal No. 4648 of 2004 has been filed by the appellants Balwant and Chandra Pal r/o Village Dunda Junuvi P.S. Baheri, District Bareilly against their conviction in S.T.No. 855/2001 whereby the appellants have been convicted under Sections 302/34 I.P.C. and sentenced to death and under Sections 307/34 I.P.C. to undergo rigorous imprisonment for ten year and fine of Rs. 5,000/- and in default of fine six months further rigorous imprisonment.
3. Criminal appeal No. 3749 of 2003 has been filed by the appellants Nem Chand s/o Nanhe Mal r/o Dunda Junevi, P.S. Baheri, District Bareilly and Jogendra s/o Har Prasad r/o Pununagar P.S. Sheshgarh, District Bareilly in S.T. No. 855/2004 under Sections 302/34 I.P.C. and sentenced to undergo rigorous imprisonment for life and fine of Rs. 10,000/- and in default of payment of fine one year further rigorous imprisonment and under Section 307/34 I.P.C. sentenced to undergo rigorous imprisonment for ten years and fine of Rs. 5,000/- and in default of payment for fine six months further rigorous imprisonment and Government Apepal No. 6180 of 2003 preferred by the State of U.P. against and acquittal of respondents Brahm Swaroop s/o Roop Chand r/o Khamriya P.S. Sheshgarh, District Bareillly and Jagdish Baggar s/o Bache Lal r/o Himkarpur Ramrua, P.S. Nawabganj, Bareilly whereby the respondents have been acquitted in S.T. No. 855/2001 under Sections 148, 302, 149, 307, 396, 412 I.P.C. and Section 25 Arms Act.
4. Criminal Reference No. 10 of 2003 is for confirmation of death sentence.
5. The brief facts of the case mentioned in the first information report lodged by Atar Singh s/o Ram Pal Singh r/o Naugwa P.S. Baheri, District Baheri are that, his grand father Natthu Singh @ Raghunath Singh had enmity with the family of Nem Chand Gangwar. On 31.5.2000 he alongwith Natthu Singh @ Raghunath Singh, Rajendra Singh @ Goli, Virendra Singh, Dharam Pal Singh, Rajendra Singh, Satya Pal Singh had gone to New India Battery shop situated at Baheri, Nainital Road for the repairing of Dynamo of Jeep No. D.D.A. 6162. Natthu Singh @ Raghunath Singh was siting on the counter of the shop. Dharam Pal Singh and Rajendra Singh were sitting in the Jeep. Virendra Singh was standing in front of the Jeep. Gyanendra Singh came to him and started talking with Dharam Pal Singh. Gyanendra Singh kept his gun in the Jeep near Dharam Pal Singh and went towards grove for urinating. At this time about 3.00 p.m. Nem Chand Gangwar and his son Balwant, Chandra Pal, Jogendra and Brahm Swaroop and Jagdish Baggar came in a Jeep. Balwant was armed with a rifle, Brahm Swaroop was armed with a D.B.B.L.gun, Chandra Pal was armed with a D.B.B.L. gun and Nem Chandra was armed with a Kanta. They surrounded them and started firing from their respective weaponed. Nem Chandra assaulted Natthu Singh on his head with his Kanta. He died on the spot after receiving fire arm and kanta injuries. Rajendra Singh and Dharam Pal Singh received serious injuries by fire arm and they became unconscious. Virendra Singh after receiving fire arm injuries fell near the Jeep. Rajendra Singh, Dharam Pal Singh and Virendra Singh were taken to Baheri hospital. Rajendra Singhy succumbed to his injuries on way to the hospital. The informant received fire arm injuries on left thigh and right arm. Balwant took away Rajendra Singh's rifle and Jagdish Baggar took away licenced gun of Gyanendra. It is further alleged that chap of gun of accused fell on the spot. The number of chap is 5809. Rajendra Singh and Satya Pal Singh witnessed the occurrence and saved themselves by running away. Several persons on the spot also witnessed the occurrence. Theassailants after sitting on their Jeep ran away towards Nainital. The report was lodged at 3.20 p.m. The distance of police station is only 1 km.
6. Raj Guru Station House Officer, P.S. Baheri started the investigation of the case. He recorded the statement of informant Atar Singh in hospital. He reached the place of occurrence and on his direction inquest report of Natthu singh was prepared by S.S.I., N.K. Sharma. He recorded the statements of Rajendra Singh, Satya Pal Singh and Gyanendra Singh. He also prepared the site plan (Ex.Ka.24). He recovered two empty catridges, chap of gun, blood stained and plain cemented earth. He also collected plain cement and blood stained rubber from the Jeep and one belt of 19 live cartridges and another belt of six live catridges of 12 bore and prepared separate recovery memo (Ex.Ka.25). He also recorded statements of Witnesses of recovery memo, Karan Singh, Ashok Walia and A.S.I. N.K. Sharma.
7. Dr. Nar Singh Bahadur is Medical Officer District Hospital, Bareillly. He conducted the post mortem examination of Dharam Pal Singh and noted following ante-mortem injuries:
1. A gun shot wound of entry on the front of right shoulder joint measuring 0.4 cm x 0.2 cm size.
2. Four gun shot wound of entry on the right upper arm frontal part in an area of 10 cm x 9 cm size 0.2 cm x 0.1 cm one shot recovered.
3. A gun shot wound of exist on the right. Axillary fold frontal part size 0.6 cm x 0.3 cm
4. Three gun shot wound of entry on the right axilla measuring size 0.4 cm x 0.2 cm in size.
5. A stitched wound over the feet of head in middle with ten stitches 5 cm long.
8. In the opinion of the doctor cause of death was shock and haemorrhage due to ante mortem gun shot injuries.
9. He also conducted post mortem examination on the dead body of Virendra Singh on 1.6.2000 at 5.30 A.M. and found following ante mortem injuries.:
1. A contusion on the right eye upper lid size 4 cm z 2 cm.
2. A stitched wound on the front of head near right eye brow with three stitches 2 cm long.
3. A stitched wound on the left side front lat. Of head with one stitch size 0.5 cm
4. A swelling on the right side of face an area of 10 cm x 6 cm.
10. In the opinion of the doctor cause of death is shock and haemorrhage due to ante mortem injuries.
11. He also conducted the post mortem examination on the dead body of Rajendra Singh on 1.6.2000 at 6.00 A.M. and found the following ante mortem injuries:
1. A gun shot wound of entry on the front apart of left shoulder joint measuring 4 cm x 3 cm x chest cavity deep Blackening, Tattooing present.
2. A gun shot wound of exit on the back of chest in upper 1/3rd part near joint of neck & chest 6 cm x 3 cm x cavity deep corresponding to injury No. 1.
3. Three abrasion on the left side of neck in area of 12 cm x 5 cm size 6 cm x 1 cm, 3 cm x 1/2 cm
12. In the opinion of the cause of death is shock and haemorrhage due to ante mortem injuries.
13. He also conducted post mortem on the dead body of Raghunath Singh @ Natthu Singh on 1.6.2000 at 7.00 A.M. and noted the following ante mortem injuries.
1. Incised wound on the left side of face 11 cm x 2 cm x bone deep.
2. Incised wound on the left side of head 10 cm x 3 cm x bone cut left parietal bone cut.
3. A gun shot wound of entry on the right side of chest in upper 1/3rd part frontal part 2 cm x 1-1/2 x cavity cm x cavity deep.
4. A gun shot wound exit on left side of chest on the lateral side in middle part 5 cm x 3 cm x cavity deep corresponding to injury No. 3.
5. An incised wound on the front of right shoulder joint 1/2 cm x 1/2 cm x muscle deep.
6. An incised wound 1/2 cm x 1/2 cm muscle deep on the right side of shoulder joint 2 cm below injury No. 5.
7. An abrasion on the front part of right shoulder joint measuring 2 cm x 1-1/2 cm
8. A lacerated wound on the right elbow joint on the middle side 4 cm x 3 cm x Bone deep under the right ulna bone fracture.
9. Incised wound on the right elbow joint on the medical side in (Paper torn) 2 cm x 1/2 cm x muscle deep.
10. Multiple abrasion on the right side in area of 20 cm x 11 cm
11. Multiple abrasion on the right thigh in area of 24 cm x 10 cm
12. A gun shot wound of entry on the right side of buttock 2 cm x 1/2 cm x bone deep.
13. A gun shot wound of exit on the right thigh in medical part medical side 3 cm x 1-1/2 cm x muscle deep corresponding to injury No. 12.
14. Two abrasion on the left side of back of chest in area of 20 cm x 10 cm x 10 cm. Abrasion size 12 cm x 1 cm and 8 cm x 1/2 cm.
15. A lacerated wound on the back of left side of chest in upper 1/3rd part 6 cm x 1 cm x muscle deep.
14. In the opinion of the doctor cause of death is shock and haemorrahage due to ante mortem injuries.
15. Dr.N.K. Saxena examined injured Dharam Pal Singh on 31.5.2000 at 5.25 p.m. and noted following ante mortem injuries:
1. Lacerated wound 1.5 cm x 1 cm x depth not probed on front of head 7 cm above nose. Bleeding present. Abraded contusion 2 cm x 1 cm on right side face 3 cm in front of right tag, red.
2. Multiple fire arm wound in area of 11 cm x 10 cm on front & left side right upper arm 8 cm above elbow.
Largest 1.5 cm x 1 cm x depth not probed smallest 0.8 cm x 0.5 x not probed Blackening present.
16. He had also examined Virendra Singh on 31.5.2000 at 5.40 p.m. and noted following injuries:
1. Lacerated wound 3 cm x 1 cm x bone deep on right forehead just above right eye brow, bleeding present.
2. Contusion 5 cm x 4 cm on right eye could on right arm not be opened.
3. Fire arm wound 0.7 cm x 0.5 cm x depth not probed left forehead 4 cm above left eye brow, blackening.
4. Contusion 8 cm x 7 cm on right side 4 cm in front of right ear.
5. General condition very low pulse very fable.
Opinion: Duration fresh nature u.o. injury.
17. Dr. Anshu Kumar Agrawal had medically examined Atar Singh on 31.5.2000 at 3.50 p.m. and noted following injuries:
18. Multiple pellet wound with surrounding charring over anterior surface of left thigh middle part in the area of 5 cm x 3 cm.
19. Single pellet wound 5 cm. x .5 cm over the anterior surface at right arm lower part.
20. S.H.O. Ram Rahit Singh submitted charge sheet after conclusion of the investigation. The case was committed to the Court of Sessions. The Sessions Judge framed charges under Sections 396, 148, 302/149, 307/149 I.P.C. and Brahma Swaroop further charged under Section 412 I.P.C. Brahma Swaroop and Balwant further charged under Section 25 Arms Act.
21. The prosecution examined 12 witnesses in order to prove its case, namely, P.W.1 Atar Singh and P.W.2 Rajendra Singh are the eye witnesses of the case. P.W.3, Constable Uma Shankar Singh prepared the chik F.I.R. P.W.4 Dr. Nar Singh Bahadur conducted the post mortem examinations on the dead body of Dharam Pal Singh, Virendrza Singh, Rajendra Singh and Raghunath Singh. P.W.5 Dr. K.K. Saxena conducted X-ray examination of Atar Singh Singh. P.W.6 Dr. Anshu Kumar Agarwal medically examined the injuries of Atar Singh on 31.5.2000. He also examined Dharam Pal Singh & Virendra Singh and referred them to the District Hospital. P.W.7 sub-inspector N.K. Sharma prepared the inquest memo. P.W.8 Ram Rahit Singh is the first investigating officer. P.W.9 Dr.N.K. Saxena examined the injuries of Dharam Pal Singh and Virendra Singh. P.W.10 Raj Guru, Inspector P.S. Baheri concluded the investigation. P.W.11 J.S. Thankariyal sub-inspector, P.S. Devratia, Distt. Bareilly submitted charge sheet. P.W.12 is Head Constable Rajiv Kumar. He was posted at P.S. Kotwali Bareillly.
22. P.W.1 Atar Singh deposed that about 3 years back he alongwith Nathu Singh, Virendra Singh, Rajendra Singh, Dharam Pal Singh, Satya Pal Singh and Rajendra Singh @ Goli had gone to Baheri from their house in his Jeep No. DDA 6162 and stopped the vehicle in front of New India Battery Shop for repairing of Dynamo of Jeep. At that time Dharam Pal was sitting on the back seat of the Jeep and Rajendra @ Goli was sitting in front of New India Battery shop for repairing of Dynamo of Jeep. At that time Dharam Pal was sitting on the back seat of the Jeep and Rajendra @ Goli was sitting in front seat of the Jeep alongwith their rifles. Virendra Singh was standing near the bonnet of the Jeep. Natthu Singh was sitting at the counter of the shop. He was standing inside the shop. Thereafter Rajendra Singh came and started talking with Dharam Pal Singh, who was sitting on the back seat of Jeep. He left his licensed gun near Dharam Pal and went towards the grove for urinating. Rajendra Singh and Satya Pal singh were standing on the northern side of the Jeep. The time was 3.00 p.m. At that time one Balwant Singh, Nem Chandra, Brahm Swaroop, Chandra Pal, Joginder and Jagdish Baggar came in a Jeep. Jagdish Baggar was armed with a D.B.B.L. gun, Chandra Pal was armed with a D.B.B.L. gun, Balwant was armed with D.B.B.L. gun, Jogendra was armed with a rifle, Nem Chandra with a kanta, and Brahm Swaroop was armed with a D.B.B.L. gun and they all started firing. Thereafter Nem Chanda assaulted Natthu Singh with Kanta who died on the spot. Due to firing of the accused he received fire arm injuries on his right and left leg. Dharam Pal Singh, Rajendra Singh @ Goli, Virendra Singh had also received firearm injuries. Jagdish Baggar took away the gun of Rajendra Singh which he kept near Dharam Pal Singh and Balwant Singh took away the rifle of Rajendra Singh @ Goli.
23. One chap of gun of the accused fell on the spot whose number is 58409. After the occurrence he, Virendra Singh, Dhram Pal Singh and Rejendra Singh, @ Goli went to the hospital on the car if Ashok Wallian. On way to the hospital Rejendra Singh, @ Goli succumbed to his injuries. In the hospital the dictated F.I.R. to Prem Pal Singh. The occurrence was witnessed by several persons. After the occurrence assailants went away in the Jeep. After prepration the report he went to lodge report at the police station Baaheri. The case was registered on the basis of report F.I.R. is Ext.Ka.1. Virendra Singh and Dharam Pal Singh were refferred to Bareilly Hospital from Bather hospital. Virendra Singh and Dharam Pal Singh died in Bareilly Hospital. It is further alleged that there is a dispute with a land with the accused persons.
24. In the cross-examination he stated that Ashok Willian and Saudan Singh, Surendra Singh and Sukhveer Singh, Scribe Prem Pal and Atar Singh are all his relatives. He stated threat he did not know he name of the father of Jagdish Baggar. He had not mentioned the name of the father of Jagdish Baggar in his report. He did not know the name of the father of Brahm Swaroop. He had not mentioned the name of the father of Brahm Swaroop in his report.
25. He stated that deceased Natthu Singh was his grand father. He was sentenced to 5 years rigorous imprisonment in a case under Section 307 I.P.C. and the appeal is pending in the High Court. His grand father Natthu Singh was also sentenced to life imprisonment in the murder case of Ranjit Singh. Dharam Pal Singh, his brother Ram Pal Singh and Abdul Ghani were also convicted alongwith Natthu Singh and they were on bail in the appeal. His grand father was also accused in the murder case of Gendan Lal, but he was acquitted. His grand father Natthu Singh was also accused in the murder case of Lal Singh. Balwant Singh, Jagdish Baggar and Brahm Swaroop are facing a trial in the case under Section 307 I.P.C. The report was lodged by Rajendra Singh, P.W.2.
26. P.W.2 Rajendra Singh deposed that on the date of occurrence at about 12.30 P.M. he alongwith his father Raghuhath Singh @ Nathu Singh, Virendra Singh, Satya Pal Singh, Dharam Pal Singh. Rajendra Singh @ Goli and nephew Atar Singh had gone to Baheri for the repairing of Dynamo of Jeep No. DDA 6162. Natthu Singh had to go to Block for filing nomination of Pradhan. His father went inside the shop and sat on the counter. Atar Singh was inside the shop. Dharam Pal Singh was sitting on the back seat of Jeep. Rajendra Singh @ Goli was sitting on front seat. He and Satyaapal were standing near the Jeep. Virendra Singh was standing near the bonnet of the Jeep. After some time Chandra Pal, Nem Chand, Balwant, Jagdish Baggar, Brahm Swaroop and Jogendra came in a Jeep. Chandra Pal was armed with a D.B.L.Gun, Nem Chand was armed with a Kanta. Brahm Swaroop was armed with a D.B.B.L. gun, Jagdish Saggar was armed with a D.B.B.L. gun and Jogendra was armed with a rifle and they all Started firing. Nem Chand assaulted his father with kanta on the head. Some of the accused had assaulted with the butt of the gun on his father and Virendra Singh. At the time of occurrence Rajendra left his gun near Dharam Pal Singh. After the firing jagdish Baggar took away the gun of Rajendra.
27. The chap No. 58409 of the gun of the accused fell on the spot. Atar Singh, Dharam Pal Singh, Virendra Singh Rajendra Singh @ Goli were taken to Baheri hospital in the car of Ashok Wallian. His father died on the spot. The inquest reports of Virendra Singh and Dharam Pal Singh were prepared in his presence (Ext.Ka. 1 & Ext. Ka.2). The Jeep was handed over to him in his custody. The supardagi memo was prepared (Ext.Ka.4).
28. His statement was recorded by the investigating officer prior to the preparation of inquest report. He stated that he had told the investigating officer that his father and brother were assaulted by the butt of the gun. He did not know the reason why the investigating officer did not mention this fact in his statement. He stated that on 6.5.2000 he had lodged the report against accused persons under Section 307 I.P.C. Atar Singh was present in the Jeep alongwith him at that time. He stated that he did not receive injured Virendra Singh and Dharam Pal Singh from the District hospital Bareilly for admitting them in Dhanvatri Tomar Hospital and he had not given any undrtaking that "MAIN APNE MARIZ KO HAI CENTRE LE JA RAHA HOON MARIZ KI ZIMMEDARI MERI HAI". He did not sign any such undrtaking.
29. P.W.3 Constable Uma Shankar Singh stated that on 31.5.2000 he was posted as clerk constable at police station Baheri. On the bassis of F.I.R. (Ext.Ka.1) he prepared the chik F.I.R. of case crime No. 384/2000 under Section 396 I.P.C. Photo copy of G.D. report is Ext.Ka.6.
30. P.W.4 Dr. Nar Singh Bahadur Medical Officer, District Bareilly had conducted post mortem of the deceased Dharam Pal Singh, which is already mentioned in the earlier part of the judgment.
31. P.W.5 Dr.K.K. Saxena Radiologist, District Hospital, Bareilly had conducted X-ray examination of Atar Singh and had prepared the report. He found three small rounded radio opaque with metallic density F.B. shadow seen on diddle of left thigh right arm. Nothing abnormal was detected in the X-ray report of right arm. X-ray report is Ext.Ka.11.
32. P.W.6 Dr. Anshu Kumar Agrawal, Medical Officer, Office of the Additional Director & Family Welfare, Bareilly had medially examined Atar Singh on 31.5.2000. Medical Examination report is already mentioned in the earlier part of the judgment.
33. P.W.7 Sub-inspector N.K. Sharma had prepared the inquest reports of Rajendra Singh and Raghunath Singh on the direction of S.H.O. (Ext.Ka. 16 and Ext.Ka. 17). On 3.6.2000 he alongwith other police officers had arrested Balwant Singh and Brahm Swaroop. One rifle of 315 bore was recoverd from the possession of Balwant Singh and one D.B.B.L. gun and 5 cartridges were recovered from the possession of Brahm Swaroop. On the pointing out of Balwant Singh one rifle of 315 bore recovered and on the pointing out of Brahm Swaroop one D.B.B.L. gun was recovered. The recovered memo was prepared (Ext.Ka. 18). On 17.6.2000 accused Prem Raj was arrested. He had informed that his gun was used by the accused persons and Chap was fallen on the ground and the gun was deposited in Tarari Gun House and the said gun was recovered from the said gun house (Ext. Ka. 19).
34. P.W.8 Ram Rahit Singh was posted as Inspector, P.S. Bareilly. He arrested Balwant Singh and Brahm Swaroop. One rifle was recovered for the possession of Balwant and one D.B.B.L. gun was recovered from the possession of Brahm Swaroop. Recovery memo was prepared (Ext. Ka.20). On the pointing out of Balwant and brahm Swaroop one rifle and one D.B.B.L. gun was recovered and the recovery memo was prepared on the dictation of Sub-inspector N.K. Sharma(Ext.Ka. 18). On 17.6.2000 he recorded the statement of Prem Raj and recovered his gun from Tarai Gun House. He submitted charge sheet on 20.8.2000 (Ext.Ka.21).
35. P.W.9 Dr. N.K. Saxena, Surgeon, District Hospital, Shahjahanpur had medically examined injured on 31.5.2000. The injuries report are already mentioned in the earlier part of the judgment.
36. P.W. 10 Raj Gure, Inspector, C.B.C.I.D. Sector Agra stated that on 31.5.2000 he was posted as Station House Officer, P.S. Baheri. He started investigation of the case. He prepared the chik F.I.R. He recorded the statement of Atar Singh in the hospital. The inquest report of Rajendra Singh was prepared by Sub-inspector N.K. Sharma On his dictation. He reached at the place of occurrence and on his dictation Sub-inspector N.K. Sharma prepared the inquest report of Natthu Singh. He recorded the statements of Rajendra Singh, Satyapal Singh & Gyanendra Singh. On the pointing out of Rajendra Singh he prepared the site plan (Ext. Ka.24). He collected two empty cartridges, chap of gun, blood stained cemented earth where Natthu Singh had fallen. He also prepared recovery memo of plain cement from there. He recovered blood stained piece of rubber of chap where blood of Dharma Pal had fallen down. A belt of racksin containing 19 live cartridges which were kept in the front seat of the Jeep was also recoverd. He also collected a cloth belt containing 6 live cartridges of 12 bore and 4 cartridges of one number from the back seat of the Jeep and other liver cartridges. He prepared the revovery memo, which is Ext.Ka.25. He took into his possession Jeep No. DDA 6162 of complainant and handed over to Rajendra Singh in his supardagi. He prepared the recovery memo (ext.Ka.4). Thereafter he recorded the statements of Karan Singh, witness of recovery memo, Ashok Wallian, Senior Sub-inspector N.K. Sharma, Inquest witness. Saudan Singh, Vijay Pal Singh, Hari Sen Singh, Kalyan Singh and Surendra Singh. On 2.6.2000 he was transferred.
37. In the cross-examination he stated that he inspected the place of occurrence in the presence of Rajendra Singh at about 8 p.m. He did not find any pellet mark on the Jeep. He did not take into possession of blood stained clothes of Rajendra or Atar Singh. He further stated that on 31.5.2000 at 11.30 a.m. he left the police station for Nogawan and returned at 2 p.m.
38. P.W.11 Sub-inspector J.S. Thakriyal stated that on 3.6.2000 Clerk constable Devendra Pal Singh had prepared chik F.I.R. of case crime No. 204 of 2000 and 205 of 2000 (Ex.ka.31 & Ext.Ka.32). He investigated the case and prepared the site plan (Ext.Ka.33). He obtained the sanction for the prosecution by the District Magistrate
39. (Ex.Ka.34 & Ext.Ka.35). He submitted the charge sheet against the accused (Ext.Ka.36 & Ext.Ka.37).
40. P.W. 12 Head Constable Rajiv Kumar stated that on 31.5.2000 he was posted at P.S. Kotwali, Bareilly as Head Constable. He proved memo 27 Ka written by constable clerk 417 Balbir Singh (Ext.Ka.49).
41. Sub-inspector Bharat kumar Gautam has been examined as a court witness. He stated that on 1.6.2000 he was posted as sub-inspector at P.S. Kotwali, Bareilly. He prepared the inquest memo of Virendra Pal Singh (Ext.Ka.2). He also prepared other relevant papers, challan lash, photo lash, letter to C.M.O. (Ext.Ka.2A to Ext.Ka.2D).
42. The case of the defence is of denial and false implication. The defence examined only one witness namely, Anoop Singh. He is Finger Print and Hand Writing Expert. He compared the signature of Rajendra Singh on B.H.T. dated 31.5.2000, Dharam Pal Singh paper No. Ext.Kha.2, Virender Singh paper No. Ext.Kha.3, which were marked as Q1 & Q2. The signature of Rajendra Singh on inquest report of Virendra Singh dated 1.6.2000 paper No. Ext.Ka.3 supardagi nama Jeep dated 31.5.2000 paper no Ext.Ka.2 to Ext.Ka.4 which were marked as A1, A2 & A3. He stated that dispute signatures Q1 & Q2 and admitted signatures A1, A2 & A3 are by name person. The report dated 1.7.2003 is Ext.Kha.4.
43. In the cross examination he stated that he prepared his report on the basis of photographs. He denied the suggestion that the signatures are by two different persons.
44. The Sessions Judge considering the evidence on record convicted the appellants as aforesaid and acquitted Brahma Swaroop and Jagdish Baggar of all the charges. Hence these appeals have been filed before this Court.
45. We have heard the counsel for the appellants and the learned A.G.A. for the State and the counsel for respondents in Government appeal and perused the entire record and the order of Sessions Judge.
46. The counsel for the appellants firstly challenged the findings of the Sessions Judge on the ground that motive for the crime is not proved in this case. In the F.I.R. informant Atar Singh(P.W.1) stated that there is family dispute with Natthu Singh, his uncle grand father and the family Nem Chand Gangwar. Nature of dispute is not mentioned on the F.I.R. In his statement in court he stated that there was dispute with regard to a land in village Beejpur. The area of the land is 32 Bighas. He denied that this land was in the name of Ram Lal. He also denied that after the death of Ram Lal his name was missing and the land was in the name of his son and his and his wife Bhoori Devi. He stated that Natthu Singh used to do pairavi of his case. He had no knowledge that Smt. Bhoori Devi had executed a sale deed in consideration of Rs. 4,66,000/- in the name of Balwan Singh, Pritam Singh, Narpat Singh etc. at the time of execution of sale deed. He also expressed his ignorance that Smt. Bhorri Devi had moved an application for mutation in the court of Tahsildar, Baheri and then litigation started. He also expressed his knowledge that on what basis Natthu Singh has claiming this land. He had no knowledge that Tahsildar, Baheri had mutated the name in favour of Balwant Singh. He had also expressed his ignorance that Natthu Singh had filed any appeal before the Sub Divisional Magistrate and the said appeal was dismissed. He also expressed his ignorance about the fact that Registrar Kanoongo had entered the name of Smt. Bhoori Devi on 6.5.1998 on the basis of the same order. The statement of this witness clearly indicates that there was some dispute between the parties with regard to the land. It is not disputed that some objections were made by Natthu Singh with regard to mutation proceedings. It is a case of direct evidence and motive in such, cases does not play any important role. The Apex Court in the case of Nathuni Yadav and Ors. v. State of Bihar and Anr. reported in 1998 (9) Supreme Court Cases 238 it was observed:-
"Motive for doing a criminal act is generally a difficult area for prosecution. One can not normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable.
47. In our view this submission of the counsel for the appellants that the appellants had no motive to commit the crime has no force. It is difficult to lay down a hard and fast rule as to how and in what manner as person would react and to achieve his motive could go to what extent in the commission of crime under a particular circumstance. It is not possible to measure up the extent of his feelings, sentiments and desire and say as to what compel him to commit a particular crime. In the present case if the evidence of the eye- witnesses is creditworthy and is believed by the court the question whether there is any motive or not becomes wholly irrelevant.
48. Counsel for the appellants has also challenged the findings of the Sessions Judge on the ground that no independent witness is supporting the prosecution case. Both the eye witnesses P.W.1, Atar Singh and P.W.2 Rajendra Singh are highly interested witnesses. P.W.1. Atar Singh stated that witness Ashok Baliyan, Saudan Singh, Surendra Singh, Sukhbeer Singh and Scribe Prem Pal Singh are his relative. He also admitted that he is a witness in a case under Section 307 I.P.C. the report of which was lodged by P.W.2 Rajendra Singh against Balwant Singh, Jagdish Baggar and Brahma Swaroop. Similarly P.W.2, Rajendra Singh is son of Raghunath alias Natthu Singh brother of Virendra Singh, Cousin Satyapal Singh, Dharam Pal Singh and Rajendra Singh alias Goli as his brother. He also admitted that on 6.5.2000 he had lodged a report in which P.W.1 Atar Singh was a witness. In view of this relationship and enmity counsel for the appellants states that the testimony of these witnesses should be rejected on the ground that both are highly interested and partisan witnesses.
49. It is a settled position of law that if a witness being close relatives and consequently being partisan witness, should not believed upon has no substance. This theory was repelled by Apex Court as early as in Dilip Singh v. State of Punjab in which surprise was expressed over the impression which prevailed in the minds of the members of the Bar that relatives were no independent witnesses speaking through Vivian Bose, J. It was observed :
"We are unable to agree with the learned Judges of High Court that the testimony of the two eye witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule if it is grounded on the reason that they are family related to the deceased, we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. State of Rajasthan, we find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel."
50. The Apex Court in the case of Rizan and Anr. v. State of Chatisgarh, through the Chief Secretary, Govt. of Chhatisgarh, Raipur, Chhatisgarh JT. 2003 (2) SC 191 observed as under:
"We shall first deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible."
51. In our view the testimonies of P.W.1 Atar Singh and P.W. 2 Rajendra Singh cannot be rejected solely on the ground that they are interested, partisan and inimical witnesses.
52. Counsel for the appellants has challenged the authenticity of the F.I.R. on the ground that in the F.I.R. the name of father of Jagdish Baggar and Brahma Swaroop is mentioned. He drawn our attention to the testimony of P.W.1 Atar Singh. His testimony shows that he stated that Jagdish Baggar is resident of village Chamerua Nafaina police station Nawabganj. He could not tell the exact distance between his village and the village of Jagdish Baggar. He never talked with Jagdish Baggar prior to the occurrence. He did not know the name of the father of Jagdish Baggar. He had not mentioned the name of father of Jagdish Baggar in his report. Brahma Swaroop is resident of village Khamariya which is situated, in police station Shishgarh. Village Khamariya is at a distance of 6 kms. from his village. He had never talked with Brahma Swaroop prior to the occurrence. He did not know the parentage of Brahma Swaroop. He did not mention the names of father of Brahma Swaroop in his report. There is no suggestion or any opportunity was given to this witness to explain how the names of the father of Jagdish Baggar and Brahma Swaroop are mentioned in the F.I.R. P.W.1 Atar Singh is not scribe of the F.I.R. He had already admitted that scribe Om Prakash is his relative. There is no suggestion that he does not identify these two accused. He has specifically mentioned that he knows them prior to the occurrence. He knows their residence, therefore, if the name of the father is mentioned it cannot be inferred that he is falsely roping these persons. There is no suggestion that the names of father of these persons are introduced at the instance of some other person. No opportunity is given to this witness as to how names of father of these accused are mentioned in the report. On the other hand the testimony of this witness inspires confidence. He is a truthful witness. He had not avoided any uncomfortable questions. Thus the submission of learned counsel that no reliance can be placed on the F.I.R. has no force and is rejected.
53. Learned counsel for the appellants submits that the presence of P.W.1 Atar Singh at the place of occurrence is highly doubtful. If he was present at the alleged time of occurrence then why the assailants had left him alive is a circumstance which shows that he was not present alongwith other deceased. It is further submitted that his injury report does not indicate that he received injuries at the alleged time of occurrence. He was medically examined by P.W. 6 Dr. Anshu Kumar on 31.5.2000 at 3.50 p.m. and the duration of the injuries described as fresh. This submission has no force because the doctor describes the injuries as fresh if they are within the duration of six hours. It cannot be said that the injuries which are examined within one hour cannot be described as fresh. It is further submitted that according to the first information report it is mentioned by P.W.1 Atar Singh that while taking Rajendra Singh, Dharampal Singh and Virendra Singh to Hospital, Rajendra Singh succumbed to his injuries and the Doctor after examining Rajendra Singh declared him dead. The statement of P.W.1 is not clear on the part whether Rajendra Singh died on his way to the Hospital or he was declared dead in the Hospital. There is no such contradiction in his statement which creates doubt about his presence at the place of occurrence. The eye witness account furnished by Atar Singh is credible and trustworthy and his presence at the place of occurrence is supported by the injuries suffered by him and corroborated by the medical evidence and his presence also shown in the site plan and corroborated by other witnesses. He is also informant of the case. The report in this case has been lodged promptly and his statement was also recorded by the investigating officer in the Hospital.
54. Learned counsel for the appellants has also challenged the presence of P.W. 2 Rajendra Singh on the spot. It is submitted that according to his statement he was also fired upon by the assailants from a distance of about 8 - 10 steps but he did not receive any injury and this is not believable that if he was present why he has not received any injury. The testimony of this witness cannot be rejected solely on the ground that he did not receive any injury while he had described the prosecution case which is supported by other eye witness account of injured witness as well as corroborated by the medical evidence. It is further submitted by the learned counsel that the conduct of this witness that he did not accompany the dead body of his father is very unnatural. This submission has no force because the testimony of this witness shows that his brother Virendra Singh had also received injury in the occurrence who subsequently succumbed to his injuries and he stated that he came to Bareilly to see his injured brother. This conduct is not unnatural. His priority was to save the life of his brother.
55. Learned counsel for the appellant submitted that the first information report is ante timed and registered after consultation and deliberation. It is vehemently argued by the learned counsel that the scribe of the report is one Prem Pal who is resident of village Bhojraj which is at a distance of 8 km. from Baheri. The F.I.R. has been lodged in this case within 20 minutes of the occurrence. This submission of learned counsel has no force. The distance of the place of occurrence from the police station is only 1 km. The chik report was prepared on the basis of the first information report which is proved by P.W. 3. There is nothing on the record to suggest the first information report is ante timed. It is further submitted that in the inquest report and other police papers crime number is not mentioned, therefore, it can be said that at the time of preparation of inquest reports the F.I.R. was not in existence. It is further submitted that the report under Section 157 Cr.P.C. reached before the Magistrate after 5 days. In the case of Balram Singh and Anr. v. State of Punjab reported in 2004 S.C.C. (Crl) 149 held as under:
"At any rate, while considering the complaint of the appellants in regard to the delay in the F.I.R. reaching the jurisdictional magistrate we will have to also bear in mind the creditworthiness of the ocular evidence adduced by the prosecution and if we find that such ocular evidence is worthy of acceptance the delay in registering the complaint or sending the same to the jurisdictional magistrate by itself would not in any manner weaken the prosecution case."
56. The registration of the F.I.R. at the alleged time is proved from the chik report and the statement of the complainant which was promptly recorded and any defect in the preparation of the inquest report by the investigating officer cannot led to an inference that the F.I.R. was not registered at the alleged time. On the other hand first information report is promptly lodged in this case. The occurrence took place on 31.5.2000 at 3 p.m. and written report is lodged at the police station at 3.20 p.m. and the distance is only 1 km. The F.I.R. contains all the essential features of the prosecution case including names of eye witnesses, time and place of incident, namely of the victim, motive, name of the appellants, weapons in their hands, manner of assault, all have been mentioned, lend a seal of assurance not only to the presence of eye witnesses on the place of incident but also to the participation of the appellants in the crime. Courts attach great importance to the prompt lodging of F.I.R. and prompt interrogation of a witness under Section 161 Cr.P.c. as the same substantially eliminates the chances of embellishment and concoction creeping in the account contained therein.
57. It is further submitted that there is conflict in direct evidence and the medical evidence. It is submitted that in the post mortem report of Virendra Singh ( Ext. Ka-8) injury No. 1 is a contusion and in the post mortem report of Rajendra Singh ( Ext. Ka-9) injury No. 3 is an abrasion and in the post mortem report of Nathhu Singh ( Ext. Ka-10) five incised wounds and five abrasions were found and these injuries were not explained by the prosecution. The prosecution failed to explain the injuries and thus there is conflict between the direct evidence and the medical evidence.
58. We have carefully considered the submissions of learned counsel for the appellants and the evidence on record. The manner of assault in the circumstances of the case clearly indicates that the deceased must have reacted to the assault and they might have received some abrasions and contusions in order to save themselves, therefore, it cannot be said that there is any conflict between the direct and medical evidence and hold that there are unexplained injuries which creates doubt about the presence of witnesses. On the other hand in the present case the eye witness account is also furnished by an injured witness whose presence at the place of occurrence cannot be doubted. There is no conflict in the direct evidence and medical evidence.
59. Learned counsel for the appellant submits that the investigation of the case is tainted and Rajendra Singh, P.W. 2 was not present at the alleged time of occurrence. The counsel for the appellants drawn our attention towards certain portion of testimonies of P.W. 9 and P.W.10. The investigating officer, P.W.10 S.H.O. Rajguru stated that the site plan was prepared on the pointing of P.W. 2 Rajendra Singh. It is further submitted that P.W. 9 Dr. N.K. Saxena stated that Dharam Pal was discharged from the Hospital on 31.5.2003 at 6.15 p.m. and Rajendra Singh had signed the discharge certificate ( Ex. Kha-2) and Virendra Singh was also discharged from the Hospital on 31.5.2000 at 6.10 ( Ext. Kha-3) and these two documents are signed by P.W. 2 Rajednra Singh. The contention of learned counsel for the appellant is that the investigating officer had handed over the Jeep to Rajendra and it was also signed by Rajendra Singh and at the alleged time his presence is proved at the Hospital. P.W. 2 Rajendra Singh stated that he remained at the place of occurrence up till 7 p.m. and he denied his signature on the bed head ticket. To prove the handwriting of P.W. 7 Rajendra Singh on the discharge certificate of Dharampal and Virendra Singh ( ext. Kha 2 and 3 ) defence had examined D.W. 1 Anoop Singh who stated that signature on superdiginama of Jeep and inquest report and Ext. Kha 2 and Kha 3 are by the same person. So far as the main occurrence is concerned, there is no infirmity in his testimony. It is also to be noted that the evidence in this case recorded after about 3 years and if there is some infirmity with regard to subsequent conduct of the witness that does not affect the credibility of the witness.
60. We have carefully examined the evidence of P.W. 1 and 2. The evidence of P.W. 1 shows that on the alleged date of occurrence he had gone to Baheri in his Jeep No. DDA 6162 alongwith Nathhu Singh, Virendra Singh, Rajendra Singh, Dharampal Singh, Satya Pal Singh, Rajendra Singh alias Goli and he stopped his vehicle near New India Battery Shop for repairing of dynamo. He described the occurrence, manner of assault which finds full corroboration from the post mortem reports and his injuries also guarantees his presence at the place of occurrence. After the occurrence he had lodged the report promptly at the police station describing the essential features of the prosecution case, manner of assault, time of occurrence, weapons in the hands of assailants and motive of the crime. The promptness in lodging of the report lends assurance to the truthfulness. The testimony of this witness is corroborated by P.W. 2 Rajendra Singh who stated that he was also coming alongwith Raghunath Singh alias Nathhu Singh, Virerndra Singh, Satyapal singh, Dharampal to Baheri for repairing of Dynamo of the Jeep. At the alleged time of occurrence the accused persons started firing and he fully described the manner of assault and corroborated the testimony of P.W. 1 Atar Singh. After the occurrence, report was lodged by Atar Singh at the police station. His statement was earlier recorded by the investigating officer. In this occurrence of broad day light there is no doubt about the identity of the assailants and the manner of assault is fully described by the eye witness account which is corroborated by the medical evidence. The place of occurrence is proved by the investigation. Investigating Officer collected the blood from inside the Jeep as well as from the place of occurrence, preparation of inquest report etc. Both these witnesses were subjected to searching and grueling cross examination but nothing useful to the accused Could be elicited therefrom. In our opinion the testimonies of both the witnesses are credible and inspires full confidence. We are of the opinion that the prosecution has fully proved its case beyond reasonable doubt and the sessions Judge rightly recorded the finding of conviction.
61. Criminal appeal No. 6180 of 2003 filed by State of U.P. is against the acquittal of Biahm Swaroop and Jagdish Baggar under Section 148, 302, 149, 307, 396 and 412 I.P.C. and under Section 25 Arms Act.
62. So far as the acquittal of respondents Brahm Swaroop under Section 25, Arms Act shows that the Sessions Judge has considered the evidence in detail. It is the prosecution case that on 31.6.2000 at 4.45 p.m. Brahm Swaroop was arrested and a D.B.B.L. gun and five cartridges were recovered from his possession. The Sessions Judge has considered the evidence on record that the arrest has been made on the basis of prior information and no independent witness was associated for the recovery nor any detail has been mentioned as to why no independent witness is called for the alleged recovery. Another circumstance relied upon by the sessions Judge that the recovery memo is also not proved in this case and held that recovery memo Ex. Ka 20 is a doubtful document. The evidence on record shows that P.W. 7 Shri N.K. Sharma stated that the recovery memo was prepared on the dictation of S.H.O. by S.O. Deoraniya Rajpal Singh. P.W. 8 Ram Rais Singh investigated the case and he stated that after the arrest the recovery memo was prepared by Shri N.K. Sharma on his dictation. Thus it is not clear as to who had prepared the recovery memo. Shri N.K. Sharma stated that the recovery memo was prepared by S.O. Deoraniya Rajpal Singh. The Sessions Judge after appreciating the evidence acquitted Brahm Swaroop under Section 25 Arms Act, the view taken by the Sessions Judge cannot be said to be either perverse, unreasonable. Therefore, the acquittal of Brahma Swaroop under Section 25 Arms Act is upheld.
63. Lastly, the acquittal of Brahm Swaroop and Jagdish Baggar in the main offence is concerned the Sessions Judge acquitted these respondents on the ground that the names of the father of Brahm Swaroop and Jagdish Baggar is mentioned in the F.I.R. The testimony of P.W. 1 Atar Singh, informant shows that Jagdish Baggar is a resident of village Jamrua Maphau Naka whereas in the F.I.R. he is described as a resident of village Himkarpur Elamsua and he further held that he did not know the name of the fathers of Jagdish Baggar and Brahmswroop. He further stated that he did not mention the name of the father of Jagdish Baggar. In the same manner he stated that he did not know the name of father of Brahm Swaroop. On this ground learned counsel for the appellant submitted before the Sessions Judge that the name of these persons included in the F.I.R. at the instance of some other person and both these persons did not participate in the occurrence. It is further submitted that these respondents had no motive to commit the offence. It is further submitted that the scribe of the report is also not produced in this case. It is mentioned that after the occurrence Jagdish Baggar took away the licensee gun of Gyanendra and according to the prosecution this gun was recovered on 3.6.2000 from Brahm Swaroop and it is further mentioned that how this gun was recovered from the possession of Brahm Swaroop. It is further submitted that Brahm Swaroop had got one S.B.B.L. gun recovered on his pointing out which was sent for scientific Laboratory for analyses and it was found that this gun was not used. In view of these infirmities the Sessions Judge given benefit of doubt and acquitted both these respondents, Brahm Swaroop and Jagdish Baggar.
64. The first ground of acquittal of respondents Brahm Swaroop and Jagdish Baggar is that in the first information report the names of father of these two. accused is mentioned by the informant P.W. 1 Atar singh. In the court he deposed that he did not know the name of fathers of these two accused persons. He stated that Jagdish Baggar is resident of village Himkarpur chamraua police station Nawabganj District Bareilly. He could not tell the distance of the village of Jagdish Baggar from his house. Prior to the occurrence he never talked with Jagdish baggar. He did not know the name of father of Jagdish Baggar and he did not mention the name of his father in the F.I.R. He further stated that Brahm Swaroop is resident of village Khamriya police station Sheeshgarh. Village Khamriya is at a distance of 6 - 7 km. from his village. Prior to the occurrence he never talked to Brahm Swaroop. He did not know the parentage of Brahm Swaroop. He did not mention the name of the father of Brahm Swaroop in the F.I.R. On the basis of this evidence the Sessions Judge has held that the names of these two accused is not mentioned by the informant in his F.I.R. On the other hand, the names of these two persons is mentioned at the instance of some other persons and the scribe of the report has not been examined in the trial court. The Sessions Judge further held how the names of father of these two accused is mentioned in the first information report and mentioning of their names in the F.I.R. is doubtful. We have already held that the report of the occurrence has been promptly lodged. Name of the accused persons with their specific roles and weapons are mentioned in the F.I.R. merely because the name of father of these two accused is mentioned in the report does not led to an inference that they are falsely roped in this case at the instance of some other persons. There is no suggestion to this witness that the name of father of these two accused persons is mentioned at the instance of some other persons or no question has been asked to ascertain how the name of father of these accused is mentioned in the report. Without affording any opportunity to this witness no adverse inference can be drawn that the name of these two accused is at the instance of some other person
65. The second ground for doubting the complicity of these two accused is that in the F.I.R. it is mentioned that the gun of Gyanendra was taken away by Jagdish Baggar but the case of the prosecution is that the said gun is recovered from the possession of Brahm Swaroop and the prosecution could not explain how this gun is recovered from the possession of Brahm Swaroop and the recovery of the weapon from the possession of Brahm Swaroop and Balwant Singh is doubtful. So far as the recovery of weapon is concerned, the Sessions Judge has rightly disbelieved the recoveries and the reasoning given by him disbelieving the recoveries cannot be said to be perverse. But so far as the recovery of gun of Gyanendra from the possession of Brahm Swaroop is concerned the Sessions Judge has raised a hypothetical question that how the gun of Gyanendra which was taken away by Jagdish Baggar is recovered from the possession of Brahm Swaroop. The answer to this question would be in the special knowledge of the accused. The prosecution cannot led any evidence as to how and in what manner weapon was transferred to another accused. This is not the duty of the prosecution to explain how and why accused changed the weapons. No benefit can be given to the accused persons on the ground that how the gun of Gyanendra which was taken away by Jagdish Baggar is shown to have been recovered from the possession of Brahm Swaroop.
66. Another ground for acquitting these two accused persons is that on 3.6.2000 a gun was recovered on the pointing out of Brahm Swaroop and he had admitted that he had used the gun in the crime. The said gun was sent for ballistic expert to Vidhi Vigyanshala, Agra, U.P. The report of the said laboratory ( Ext. Ka-28) shows that in the barrel of the gun Nitrate or Nitrite was not recovered and this has been alleged to be used by Brahm Swaroop does not corroborate the use of the said gun in the crime. This finding of the Sessions Judge is perverse. This was not the case of the prosecution that the gun which was alleged to have been recovered from the possession of Brahm Swaroop was used in the crime. In the F.I.R. it is mentioned that Brahm Swaroop was armed with a D.B.B.L. gun and witnesses have deposed that Brahm Swaroop was armed with a D.B.B.L. gun. But the recovered gun was not specified either in the F.I.R. or in the testimonies of the witnesses. It was the statement of the accused that he had used the said gun in the crime. The Sessions Judge has come to the conclusion that the said gun was not used in the crime. In arriving this finding the Sessions Judge had considered the inadmissible evidence. The statement of Brahm Swaroop that he had used the gun was inadmissible as this was the statement given to a police officer while he was in custody. The Sessions Judge has wrongly held that the prosecution failed to prove the use of the said gun in the said crime.
67. In our opinion the findings of the Sessions Judge are perverse and based upon flimsy grounds. The acquittal of these two accused persons on the basis of such finding is wholly unjustified. The prosecution has fully proved its case beyond reasonable doubt. The eye witness account is in harmony with medical evidence and investigation. Therefore, we set aside the order of acquittal of Brahm Swaroop and Jagdish Baggar and they are convicted under Section 302/34 I.P.C. and sentenced to undergo imprisonment for life and a fine of Rs. 10,000/- and in default of payment of fine R.I. for a period of one year and they are further convicted under Section 307/34 I.P.C. and sentenced to 10 years R.I. and fine of Rs. 5000/- and in default of payment of fine for a further period of six months R.I.
68. Lastly, learned counsel for the appellants submitted that the Sessions Judge has wrongly sentenced the appellants Chandra Pal and Balwant of death. The reason for awarding the death sentence is that in this occurrence four persons have been murdered and the occurrence took place in broad day light in a public place.
69. This is a serious question for consideration that whether imposition of death penalty to appellants Chandra and Balwant in the facts and circumstances of case is justified?
70. Under the old Code of Criminal Procedure ample discretion was given to courts to pass death sentence as a general proposition and the alternative sentence of life term could be awarded in exceptional case and that too after advancing special reasons for making departure from the general rule. The new Code of 1973 has entirely reversed the approach. A sentence for imprisonment for life is now the rule and capital sentence is an exception. It has also been made obligatory on the courts to record special reasons if ultimately death sentence is awarded. A Constitutional Bench of the Sapreme Court in the case of Bachan Singh v. State of Punjab. A.I.R. 1980 S.C. 898 while upholding the constitutional validity of the death sentence voiced that as a legal principle death sentence is still awardable but only in rarest of rare cases when the alternative option of lesser sentence is unquestionably foreclosed.
71. Considering the aggravating and mitigating circumstances we are of the opinion that in the facts and circumstances of the case, this case does not fall within the category of 'rarest of rare case' and it can not be said that imposition of lesser sentence of life term altogether foreclosed.
72. We therefore, alter the death sentence to imprisonment for life of the appellants Chandra Pal and Balwant.
73. In view of the above the sentence of Chandrapal and Balwant is modified and in place of death sentence they are sentenced to imprisonment for life under Section 302/34 I.P.C.
The above appeals are decided as under:
Criminal Appeal No. 4648 of 2004 (Balwant and Chandra Pal v. State)
74. The appeal is dismissed with the modification that while affirming the conviction of the appellants Chandra Pal and Balwant under Section 302 read with 34 I.P.C. we set aside the sentence of death imposed by the trial court and alter the same to imprisonment for life. The conviction and sentences of the appellants awarded by the trial court under Section 307/34 I.P.C. are upheld.
Criminal Appeal No. 3749 of 2003 (Nem Chand and Jogendra v. State )
75. The appeal is dismissed. The conviction and sentences of appellants Nem Chand and Jogendra under Sections 302/34 and 307/34 awarded by the Sessions Judge, are upheld.
76. Appellants Chandra Pal, Balwant, Nem Chand and Jogendra are in jail. They shall be kept there to serve out the sentences as modified by this court.
Government appeal No. 6180 of 2003 (State of U.P. v. Brahm Swaroop and Jagdish Baggar)
77. The appeal is partly allowed. We set aside the order ofacquittal of Brahm Swaroop and Jagdish Baggar and they are convicted under Section 302/34 I.P.C. and sentenced to undergo imprisonment for life and a fine of Rs. 10,000/- and in default of payment of fine R.I. for a period of one year and they are further convicted under Section 307/34 I.P.C. and sentenced to 10 years R.I. and fine of Rs. 5000/- and in default of payment of fine for a further period of six months R.I. All the sentences shall run concurrently. However, the acquittal of respondent of the offence under Section 25 Arms Act is upheld.
78. Appellants Brahm Swaroop and Jagdish Baggar are directed to surrender to serve out the sentence. The C.J.M., Bareilly is also directed to take the appellants into custody forthwith on receipt of a copy of this judgment and send them to jail to serve out the sentences awarded by us.
79. Reference made by learned Sessions Judge for confirmation of death sentence of appellants Chandra Pal and Balwant is rejected.
80. Judgment be certified to the lower court immediately for reporting compliance to this court within two months from the date of receipt.