Point of Law:
Section 148 creates liability on persons armed with the deadly weapon and is a distinct offence and there is no requirement in law that members of unlawful assembly have also to be charged under Section 148 IPC for legally recording their conviction under Section 302 read with Section 149 IPC.

JUDGMENT :

1. Heard Sri Rahul Misra, learned counsel for the appellant, Sri L.D. Rajbhar and Sri Prem Shankar Misra, learned A.G.A.(s) for the State-respondents.

2. The present criminal appeal has been filed challenging the judgment and order dated 17th October, 1997 passed by the Additional Sessions Judge/Special Judge (E.C. Act), Mainpuri in Sessions Trial No. 298 of 1988 (State vs. Santosh) arising out of Case Crime No. 609 of 1987 under Sections 148, 307/149 and 309/149 IPC, Police Station Kotwali, District Mainpuri.

3. The above trial had proceeded only against accused Santosh, the appellant herein out of five accused persons for the murder of deceased Suresh Singh. The accused Mukesh to whom main role of firing had been assigned, had died before commencement of the trial. Whereas another accused Pappu remained absconded. The identity of two other unnamed accused persons could not be determined during investigation. Resultantly, after trial only the appellant has been convicted under Section 302 and 149 IPC read with Section 148 IPC for life imprisonment and ten years' rigorous imprisonment for offences under Section 307 and 149 IPC. All the sentences are to run concurrently.

4. As per averments in the first information report lodged on a written report given by Ramesh Singh son of Natthu Singh, his elder brother deceased Suresh Singh was murdered by Mukesh son of Shankar Pahelwan in the unlawful assembly of Pappu son of Farid Khan, Santosh (the appellant herein) and two unknown persons outside his house situated at Punjabi Colony, Police Station Kotwali, Mainpuri. As the prosecution story begins, the first informant Ramesh Singh heard a calling from outside his house while he along with his elder brother Suresh Singh, younger brother Mahesh and Ram Prakash resident of Punjabi Colony was sitting inside his house. The voice called ^^jes'k gS D;k\** Hearing the same, deceased Suresh Singh, Mahesh, the first informant, Rajendra and Ramesh came out of the door of the house one after the other. The deceased Suresh Singh was first to come out and the last one was Ram Prakash. When the first informant came out, he witnessed all the accused persons standing there carrying Country made pistols in their hands. Seeing them, Suresh asked ^^D;k ckr gS**(what happened?). Hearing this, the accused Mukesh while hurling abuses exhorted others by saying^^ns[krs D;k gks ekjks^^ and opened a fire at Suresh which hit his abdomen. The accused persons were challenged and chased by the complainant and other witnesses but all accused persons fired shots from their country made pistols with intention to kill them and it was a narrow escape for the complainant and witnesses. The accused persons had, however, succeeded in fleeing from the spot.

5. The first informant along with other witnesses took deceased to hospital in a car, where he was declared brought dead by the Doctors. The first informant then reached the police station to lodge the report. The distance of the police station from the place of incident (namely Punjabi Colony) as shown in the Chik report is around 1 & ½ Kms. The date and time of incident as narrated is 9.10.1987 at around 2.00-3.00 PM, whereas the first information report was lodged on the same day at around 04:32 PM. The reason for delay in FIR of about 1 and ½ hours has been explained in the Chik FIR as the time consumed in taking deceased to hospital. The prosecution produced two witnesses of facts, PW-1 Ramesh Singh (eye-witness and brother of the deceased), PW-2 Ram Prakash Singh (another eye-witness).

6. Amongst the formal witnesses, PW-6 Shruti Sen Singh Constable Clerk posted in the police station Kotwali, Mainpuri proved the Chik FIR and GD entry of the same as Exhibit 'Ka-10' and Exhibit 'Ka-11'. He proved that the GD entry after registration of the Chik FIR was made in his writing and signed by him. The Exhibit 'Kha-1' is the G.D. no. 43 proved by him in the writing of Rameshwar Dayal Mishra, another police officer. The