ORDER

1. This order will dispose of Criminal Appeal Nos. 1100-1101 of 2003 titled State of U.P. v. Ramji Tiwari and Ors. and Criminal Appeal Nos. 1098-1099 of 2003 titled Chandrawati v. Ramji Tiwari and Anr. Etc.

2. The facts have been taken from the appeals filed by Chandrawati Devi, the complainant in Criminal Appeal Nos. 1098-1099 of 2003.

3. On 31st October, 1997 the accused were removing hay from the land in front of the house of Nazir, a neighbour of Chandrawati. Nazir objected to this action and started abusing them and tried to assault them as well. On hearing the altercation Chandrawati's husband Bindeshwari and son Raj Kumar came out to intervene on which Godavari-accused brought a double barrel (DBBL) gun and cartridges and gave them to accused Ramji Tiwari and exhorted him to kill Nazir and the others to settle the dispute for all times to come. Ramji Tiwari first fired a shot at Nazir and a second shot at Smt. Kunna (PW-4) wife of Hazrat Ali. On hearing the sound of the firing, the other accused namely Virendra Tiwari, Chandreshwar Tiwari and Laxmi further exhorted Ramji Tiwari and shouted that Bindeshwari was also coming from a side lane and he too should not be spared. On this Ramji Tiwari fired a shot at Noor Jahan, Bindeshwari and his son Raj Kumar. Nazir and Bindeshwari died at the spot whereas Raj Kumar, Smt. Kunna and Noor Jahan were seriously injured. The incident was witnessed by Nawwa, Narad, Laxmi and others. Chandrawati lodged a FIR at about 10.40 a.m. on 31st October, 1997. The bodies of the deceased, and the injured who were in serious condition, were removed to the Primary Health Centre at Etwa but Raj Kumar succumbed to his injuries on the way and Noor Jahan too succumbed to her injuries a little later. On the completion of the investigation, the case was committed to the Court of Sessions. The Court of Sessions framed charges inter alia under Sections 302/149, 307/149, 147, 148 and 307 of the Indian Penal Code. Relying on the evidence of the injured witnesses and that of the doctor and keeping in view all the circumstances, the Sessions Judge vide his judgment dated 8th August, 2000 convicted Ramji Tiwari under Section 302 and sentenced him to death. The other accused were convicted under Sections 302 read with 109 of the Indian Penal Code and were sentenced to imprisonment for life.

4. The matter was thereafter taken to the High Court in appeal by the accused and was also referred on the question of the death sentence under Section 366 of the Code of Criminal Procedure. The High Court declined the murder reference but dismissed the appeal filed by Ramji Tiwari. The High Court also acquitted the other four appellants relying on the Judgment of this Court in Wakil Yadav v. State of Bihar 2001 SCC (Crl.) 149 held:

The appellant having faced trial for being a member of an unlawful assembly which achieved the common object of killing the deceased, could in no event be substantively convicted for offence under Section 302 I.P.C with the aid of Section 109 I.P.C. There was obviously thus not only a legal flaw but also a great prejudice to the appellant in projecting his defence. He, on such error committed by the High Court, has rightly earned his acquittal.

5. Two appeals have been filed in this Court, one by Chandrawati, the complainant, challenging the acquittal of the four accused as also seeking a death sentence for Ramji Tiwari, and the other by the State of U.P. making the same prayer. We also see from the record that the SLP filed by Ramji Tiwari has been dismissed at the initial stage.

6. Mr. Das, the learned Senior Counsel for the appellant-State of U.P. in Criminal Appeal Nos. 1100-1101 of 2003 at the very initial stage argued that the High Court had taken a very hyper technical view in the matter and had placed reliance on the judgment in Wakil Yadav's case (supra) but the judgment aforesaid had ignored the provision of Section 464 of the Code of Criminal Procedure whereby in order to vitiate a tri