JUDGMENT :

Sudhir Agarwal, J.

All these appeals have arisen from a common judgement dated 9.12.1999 and order dated 14.12.1999 passed by Sri A.K. Mishra, Additional Sessions Judge/Special Judge, (Dacoity Affected Area Act), Lalitpur.

2. Jail Appeal No. 8472 of 2008 has been preferred by accused-appellant Mithaiya under Section 383 I.P.C. through Senior Jail Superintendent, Agra whereas Criminal Appeal No. 109 of 2000 has been preferred by accused-appellant Rao Raja and Phool Singh and Criminal Appeal No. 251 of 2000 has been preferred by accused-appellant Kailash @ Mahendra Tiwari against the aforesaid judgement and order.

3. By the impugned judgement accused-appellants Mithaiya, Rao Raja, Phool Singh and Kailash @ Mahendra Tiwari have been convicted and sentenced to undergo life imprisonment under Section 302 read with Section 149 I.P.C. Accused-appellants Phool Singh and Rao Raja have been sentenced under Section 147 I.P.C. to undergo one year rigorous imprisonment, while accused-appellant Mithaiya and Kailash @ Mahendra Tiwari have been convicted and sentenced to two years rigorous imprisonment under Section 148 I.P.C. All the sentences of accused-appellants are directed to run concurrently.

4. In short, factual matrix of the case, appearing from First Information Report (hereinafter referred to as 'FIR') as well as evidence available on record, may be briefly stated as under.

5. A written report Ex.Ka-3 was submitted at Police Station, Girar, District Lalitpur on 28.12.1996 by PW-1 Kapoor Singh son of Mukundi stating that on 27.12.1996, Informant along with his brother Roop Singh Tanay were sitting at Chabutara out side their house. Besides them, other persons of the village, namely, Rajbhar Tanay, Kisori Lodhi, Mitthu Tanay, Jagannath Lodhi, Ramesh Tanay, Mohan Lal Lodhi and Jagat Tanay were also present and engaged in conversation. At about 6:00 P.M. Jagbhan Singh Thakur and Mithaiya Gaderiya, residents of Rasankhera, P.S. Badagaon (M.P.) armed with guns; Rao Raja Thakur and Phool Singh Thakur, residents of village Heerapur, P.S. Girar armed with Lathi; and Kailash Pandit armed with Axe, came over there from the side of temple. Jagbhan Singh Thakur exhorted Informant's brother, Roop Singh, saying that he had been acting as Informer of police against accused. Informant's brother denied the allegation levelled against him whereupon aforesaid five miscreants, after catching hold of Roop Singh, dragged him towards Jhakar. The Informant and others followed accused persuading them to leave Roop Singh but they did not pay heed. Accused-appellants took Roop Singh towards Jungle of Ramgadha in the field of Jhundare. Informant and other villagers were at the distance of 10 to 5 paces from the accused, when accused persons reached the aforesaid field, and Jagbhan opened fire on Informant's brother at about 7:00 P.M. Consequently, Informant's brother fell down and died instantaneously. Informant and others being scared, in order to save their lives, fled away and reached village. On account of fear, they remained in village throughout night and in the morning of 28.12.1996, along with villagers, went to the field of Jhundare and found dead body of Roop Singh, lying there.

6. On the basis of written report, (Ex.Ka-1), PW-6, Constable Muharrir Pramod Kumar prepared Chick FIR (Ex.Ka-3) and registered case in General Diary (hereinafter referred to as 'G.D.') as Case Crime No. 62 of 1996 under Sections 147, 148, 149, 302 I.P.C. After registration of FIR, Investigation commenced. PW-9, Investigation Officer, (hereinafter referred to as 'I.O.') Bhagwat Singh recorded statements of Informant, rushed to the place of incident and prepared inquest in his own hand writing which is Ex.Ka-7 on record. He also prepared relevant documents including Photonash, letter to C.M.O., letter to R.I., Specimen of seal etc; took in possession sample of simple and blood stained earth and prepared recovery memo, Ex.Ka-14, in respect thereof; took in possession shoes