Point of Law: Conviction set aside - FIR is ante-timed and there are no independent witness of the incident. Prosecution has failed to prove the charges against the appellants-accused beyond reasonable doubt.

JUDGMENT :

Chandra Kumar Rai, J.

Heard Sri Rajiv Lochan Shukla assisted by Sri K.K. Pandey and Sri K.K. Mishra, learned counsels for the appellants and Smt. Manju Thakur, the learned AGA for the State.

1. These criminal appeals have been preferred against the judgment and order dated 18.3.2011 passed by the Additional Sessions Judge, Court No.8, Fatehpur in Sessions Trial No. 309 of 2006, arising out of Case Crime No.50/2006, State vs. Darshrath and others, under Sections 302/34 IPC and Section 7 of the Criminal Law Amendment Act, P.S. Ashothar, District Fatehpur, convicting and sentencing the accused-appellants Dashrath @ Badka, Ramswaroop @ Chotka, Suresh and Shivpersona @ Bantwa for life imprisonment and fine of Rs.7000/-and in default of payment of fine, they have to further undergo imprisonment of 1 year and sentencing them under Section 7 of the Criminal Law Amendment Act for imprisonment of 3 months and all the sentences will run concurrently. Further accused-appellant Ramswaroop @ Chotka was also convicted under Section 25 of the Arms Act in S.T. No.312 of 2006, arising out of Case Crime No.64/2006, State vs. Ramswaroop, P.S. Ashothar, District Fatehpur and sentenced for rigorous imprisonment of 3 years and a fine of Rs.2000/-and in default of payment of fine, he has to further undergo imprisonment of 3 months and all the sentences will run concurrently. Further accused appellant Suresh was also convicted under Section 25 of the Arms Act in S.T. No. 313/2006, arising out of Case Crime No.56/2006, P.S. Ashothar, District Fatehpur and sentenced for rigorous imprisonment of 3 years and a fine of Rs.2000/- and default of payment of fine, he has to undergo imprisonment of 3 months and all the sentences will run concurrently.

2. Since all the four appeals have been filed against the same judgment, hence all the four appeals are being heard and decided jointly by common judgment.

3. Briefly the facts of the case are as follows :-

First informant Asha Devi, wife of Shri Shiv Singh is resident of village-Bensari, P.S. Asothar, District Fatehpur. On 4.5.2006, her husband, Shiv Singh aged about 36 years along with son Ajeet and Sujeet and Dewar Jai Singh went in the Tilak Ceremony of Shiv Pratap, brother of Ram Ashrey Gupta of the same village, there was too much rush there and everybody was sitting in order to take dinner of Tilak Ceremony and it was 9.00 P.M. Dashrath @ Badka, Ramswaroop @ Chotka, sons of Ram Dularey, Shiv Prakash Yadav, brother-in-law of Chotka, resident of village-Ajhei and Suresh, son of Sita Ram came to her husband from whom dispute relating to house is going on, they dragged the husband towards the hand pipe of Hemchandra Yadav, thereafter, Shiv Prakash and Badka catch hold her husband and Ramswaroop @ Chotka and Suresh who were armed with country-made pistol in their hand, fired and murdered his husband. Her son and Dewar rushed up to escape him but accused pushed them so they fell down. Due to dragging her husband and open firing, resulting into murder, stampede occurred on the spot and people were running away, leaving the dinner. Accused went in east direction with country-made pistol in their hand, the dead body of her husband is lying on spot. Prayer was made to lodge the report and legal action be taken.

4. On the basis of written report (Ext. Ka-8), chik no. 36 of 2006, case crime no. 50 of 2006 under Section 302 IPC and Section 7 of Criminal Law Amendment Act was registered on 4.5.2006 at 22.30 with P.S. Ashothar against accused Dashrath @ Badka, Ramswaroop @ Chotka, Shiv Prakash Yadav and Suresh. chik FIR is on record as Ext. Ka-15. The investigation of the case was taken up by Sri Anand Kumar Singh, S.O. Asothar and relevant entry was made in general diary vide rapat no. 28 at 22.30 (Ext. Ka-6). On 5.5.2006 at 00.05 inquest was conducted on the dead body of deceased Shiv Singh and prepared inquest report (Ext. Ka-21). He also prepared letter to C.M.O. (Ext. Ka-22), letter to R.I. (Ext. Ka-23), challan