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2015 Supreme(All) 1559
ALLAHABAD HIGH COURT
BEFORE : ARVIND KUMAR TRIPATHI AND ARVIND KUMAR MISHRA-I, JJ.
JEETAN KUMARI AND OTHERS ....Appellants
Versus
STATE OF U.P. ....Opposite Party
(Capital Appeal Nos. 1358, 1909 and 2003 of 2013, decided on 21st December, 2015)
Counsel :
From Jail, Devottam Pandey, L.P. Singh, V.S. Singh, Daya Shanker Mishra, Chandrakesh Mishra and Kameshwar Singh for the Appellants; A.G.A. for the Opposite Party.
Headnote:(Indian) Penal Code, 1860 – Sections 302/149 – Murder – Conviction – No reliable evidence is available against accused-appellants ‘L’ and ‘S’ for committing murder of deceased and ‘R’ and assaulting injured ‘L’ – However, it is very surprising that not only they were convicted but death punishment was awarded – Hence, conviction in respect of accused ‘L’ and ‘S’ set aside – Other accused-appellants were involved in incident of murder in furtherance of common object – There is not material contradiction to disbelieve statement of PW-6 ‘V’ PW-7 ‘S’ and examination-in-chief of informant ‘L’ PW-1 regarding commission of offence, which is corroborated by statement of witnesses ‘V’ and ‘S’ – Hence, accused-appellants ‘J’ and ‘S’ are guilty of committing offence under Section 302 I.P.C. and 302/149 I.P.C. – Other appellants except ‘L’ and ‘S’ are guilty of committing murder of deceased ‘S’ and R’ under Section 302 I.P.C. and read with Section 149 I.P.C. as offence was proved beyond reasonable doubt – Hence, appellants ‘J’ is convicted under Section 302 I.P.C. and sentenced for life imprisonment with fine – Accused-appellants ‘N’ ‘S’ ‘A’ ‘C’ are hereby convicted under Section 302/149 I.P.C. and sentenced for life imprisonment with fine.
Order Accordingly.
(Delievered by Hon'ble Arvind Kumar Tripathi, J.)
1. Capital Case No. 1358 of 2013 was filed (from jail) on behalf of Jeetan Kurmi and Others, Capital Case No. 1909 of 2013 Jeetan Kurmi and Others Vs. State and Capital Case No. 2003 of 2013 Ashok Patel & Another Vs. State, were filed through counsels. Reference No. 6 of 2013 is for confirmation of Capital punishment in Session Trial No. 217 of 2008.
2. Mr. Daya Shanker Mishra and Mr. Chandrakesh Mishra, learned Advocates appeared on behalf of appellants Jeetan Kurmi, Nand Kishore, Saijnath, Shiv Ji Yadav. Mr. Kameshwar Singh, learned Advocate appeared on behalf of the appellants Ashok Patel, Chitranjan Kurmi and Mr. Satrunjay Singh, learned Advocate appeared on behalf of the appellant Lal Sahab. Learned Government Advocate and Mr. A.N.Mulla, learned AGA appeared on behalf of the State.
3. The appellants were convicted and sentenced vide judgment dated 7.3.2013 passed by Additional Session Judge/X-cadre, Ballia under Section 302/149 IPC to Hang Till Death with fine for a sum of Rs. 50,000/- each and in default four years civil imprisonment, under Section 148 IPC, two years rigorous imprisonment with fine for a sum of Rs. 5,000/- each and in default three months civil imprisonment. Since capital punishment was awarded, hence, Reference was made for confirmation of the sentence to this Court. Against the impugned judgment of conviction and sentence, abovenoted Criminal Appeals (Capital Cases) were preferred on behalf of the appellants, hence, abovenoted cases were being heard and being decided jointly by a common order.
4. The brief fact of the case is that the F.I.R. was lodged and registered by the informant Laxman Sahni, P.W.-1. The report was written by one Arun Prakash on 4.7.2007. According to F.I.R., police personnel of different police stations came in the village for search of accused-appellants Sailesh Kurmi and with the help of P.W.-7 Shanker Mallah s/o Vishun Mallah, the police party went for search of him and raided at the houses of different persons. With regard to date of raid, there is overwriting but according to statement, police party came for search of Sailesh Kurmi on 1.7.2007. When Sailesh Kurmi came to know then just to take revenge along with his companion, Sailesh Kurmi, Jeetan Kurmi, Chitranjan, Ashok Patel, Nand Kishore, Saijnath all r/o Khadipur Mallahichak, P.S. Bansdih Ballia, Hridayanand r/o Khiruchhapra present r/o Kharauni P.S. Bansdih came stating that people belonging to 'Mallah' caste were taking steps with assistance of the police to kill the person of their caste. They reached at the place towards the west of the village where deceased Radhakishun was present in his corn field. They caughthold of him, took him at some distance and shot fire at him. Thereafter they proceeded towards north where deceased Swaminath was present at his tube-well and also shot fire at him. Thereafter, they proceeded towards Laxman Patel, injured P.W.-2 and shot fire at him. From there they went towards Diyara. The incident was witnessed by Vishram Patel P.W.-6, Sushil (not examined), Shanker Mallah P.W.-7, Shringar (not examined), Subhash and other people of the village in the moon light and torch light. The injured were taken by jeep to Ballia for medical aid. By the time, they reached Radhakishun and Swaminath expired. Injured Laxman Patel whose condition was serious, was referred to Varanasi. The incident took place in the night of 3.6.2007 at 10.30 P.M. The report was written by Arun Prakash on behalf of the informant Laxman Sahni and the same was lodged and registered on 4.7.2007 at 2.15 A.M. at P.S. Kotwali Bansdih, District Ballia as Case Crime No. 106 of 2007, under Sections 147, 148, 149, 302, 307/34 IPC and 7 Criminal Law Amendment Act.
5. After the F.I.R. was lodged, investigation was started by Incharge Inspector B.L.Singh P.W.-11. He recorded statement of the informant Laxman Sahni at the police station itself and went at the place of inciden
