Point of Law : Conviction on the basis of statements of two police officials alone is not sustainable.

JUDGMENT :

Om Prakash Tripathi, J.)

Heard Shri Rajiv Lochan Shukla, learned counsel for the appellants and Shri A.N. Mulla, learned A.G.A. for the State and perused the material on record.

1. The appellants have preferred this criminal appeal aggrieved by judgment and order dated 27.07.2006 passed by Additional Sessions Judge/ Fast Track Court IInd Court No. 7, Banda, in Session Trial No. 86/2004 arising out of Case Crime No. 198 of 2003 (under Section 302/34 I.P.C.), Session Trial No. 87 of 2004 arising out of Case Crime No. 210 of 2003 (under Section 25/27 Arms Act), Session Trial No. 88 of 2004 arising out of Case Crime No. 202 of 2003 (under Section 25 Arms Act), Session Trial No. 89 of 2004 arising out of Case Crime No. 203 of 2003 (under Section 25 Arms Act), Session Trial No. 90 of 2004 arising out of Case Crime No. 204 of 2003, (under Section 30 Arms Act) Police Station -Baberu, District-Banda convicting and sentencing the appellants to undergo imprisonment for life under Section 302/34 I.P.C. with a fine of Rs. 5000/-each and in default of payment of fine to undergo six months additional rigorous imprisonment, convicting and sentencing the appellant nos. 1, 2 & 4 under Section 25 of Arms Act to undergo two years rigorous imprisonment and fine of Rs. 1000/-each and in default of payment of fine to undergo two months additional rigorous imprisonment and appellant no. 3 Ramchandra under Section 30 of Arms Act to undergo three months imprisonment. All the sentences shall run concurrently.

2. The prosecution case is as follows:

3. Virendra Singh, the complainant lodged the first information report on 06.10.2003 at Police Station-Baberu, District-Banda alleging therein that on 06.10.2003 at 6:00 p.m. his son Suresh Singh, Sughar Singh S/o Chandan Singh R/o Vibhar Thok, Kasba Baberu and Other relatives were coming to their village. On the way (near to ‘Puliya’) accused Makrand Singh S/o Shiv Kumar, Ramjeet, Ramkaptan, Rishikesh S/o Chandrabali came with arms in their hands. Everyone fired with their own weapons, which hit Suresh, after being shot, Suresh fell in a pool of blood and died in agony. Then the accused fled away from the scene of occurrence.

4. On the basis of the written report (Exhibit Ka-1), the police registered Case Crime No. 198 of 2003, under Section 302 I.P.C. Investigation of the case was taken over by Inspector Jai Shankar Pandey (PW-10). He rushed to the spot and recorded the statements of the witnesses under Section 161 Cr.P.C. and prepared a map of the site. The postmortem of the dead body has been done after ‘Panchayatnama’.

5. During investigation, recovery has been made from the possession of accused persons. On 09.10.2003 at 11:00 a.m. S.H.O. Jai Shankar Pandey (PW-10) along with his police personnel caught two person namely Ramjeet Singh and Rishikesh Singh both S/o Chandrabali Singh. One factory made Rifle AB01/4150 (315 bore) with three live cartridges have been recovered from the possession of Ramjeet Singh. One country made pistol and two live cartridges (315 bore) have been recovered from the possession of accused Rishikesh Singh. On the pointing of Ramjeet and Rishikesh Singh, one licensee rifle (315 bore) has been recovered from the possession of Ramchandra Singh.

6. On 22.10.2003, one S.B.B.L. Gun (12 bore), two live cartridges have been recovered from the possession of accused Makrand Singh.

7. On the basis of aforesaid recovery, Sections 25 & 25/27 of Arms Act have been made upon accused Ramjeet Singh, Rishikesh Singh and Makrand Singh respectively.

8. The postmortem examination of the dead body of the deceased Suresh Singh was conducted by Dr. S.P. Gupta (PW-5) on 07.10.2003. As per the post mortem report, the deceased was about 38 years old. On internal examination of the deceased, the doctor opined that the deceased died due to haemorrhage and shock as a result of Ante-Mortem Firearm Injury. Ante-mortem injuries are as follows:-

(i) The firearm wound of entry of 3cm x 3cm, bone deep on right s