Point of law : Section 28 of the Criminal Procedure Code empowers the Court to impose sentence authorised by law.

JUDGMENT :

Sunita Agarwal, J.

1. Heard Sri Apul Mishra learned Advocate on behalf of appellants Phool Singh, Hari @ Harish Chandra and Charan, Sri Vinod Kumar learned Advocate on behalf of appellant Kallu and Sri Roopak Chaubey learned A.G.A for the State.

2. These three connected appeals are directed against the judgment and order dated 30.9.2003 passed by the Sessions Judge, Mahoba in Sessions Trial no.55 of 1998 arising out of Case Crime no.219 of 1997 P.S-Kulpahad District-Mahoba whereby five appellants namely Kallu, Phool Singh, Hari @ Harish Chandra, Charan and Jogendra have been convicted for the offence under Section 302/149 I.P.C and sentence for life imprisonment; under Section 324/149 I.P.C they were sentenced for rigorous imprisonment for three years as also for the offence under Section 148 I.P.C. punishment for which is two years rigorous imprisonment. All the punishment are to run concurrently.

These three connected appeals are filed by five accused persons, amongst them one appellant Jogendra had died and the appeal on his behalf has been abated.

3. The prosecution story unfolds with a first information report lodged on 19.11.1997 at about 17.00 hours which was on a written report given by Ratan Singh s/o Karore Yadav resident of Kulpahad, Mahoba. As per the written report, the brother of the first informant namely Jai Singh while going to his fields at about 3.00 p.m. on 19.11.1997 was attacked by Kallu and Phool Singh by their 12 bore gun and rifle. At that point of time, the victim was near the house of Tikka Ram and was heading towards “Arjun Bandh” from his house. The fires opened by Kallu and Phool Singh hit at the hands of Jai Singh and he ran towards his house. At that time appellants Jogendra, Hari and Charan came out of the house of the Kallu carrying 12 bore guns and started firing at the victim Jai Singh. These persons also fired at the back of the victim Jai Singh. As per the version of the first informant in the written report, the fires opened by the appellants hit the head, back, chest, hands and face of the victim who fell down at the door of his house and died. In the course of firing, one child Sunil s/o Kallu Teli aged about four years had also sustained pellet injuries in his Torso. The motive of committing the crime had been assigned to appellant Charan and Jogendra who were accused in criminal case wherein the deceased was a witness. It was stated that the appellants were having ill will against the deceased on account of his evidence. The incident was witnessed by the younger brother of the deceased namely Todan and one person named Bhaiyan s/o Amar Singh Yadav resident Ragauli P.S-Srinagar and Mohan Singh s/o Balkhandi Sela.

4. Based on the written report, check F.I.R was prepared by the Constable Moharrir P.S-Kulpahad examined as P.W-3. This witness had proved the check report as Exhibit Ka-2 and the G.D entry no.25 dated 19.11.1997 at 17:00 hours as Exhibit Ka-3. In cross, P.W-3 had proved that the written report bears thumb impression of the first informant and the copy of the check was handed over to the Investigating Officer before he proceeded to the spot. The suggestion that the written report was scribed and the check FIR was lodged after the Investigating Officer had returned from the spot had been categorically denied.

5. The papers prepared during the course of investigation had been proved by the Investigating Officer examined as P.W-7, who has deposed that he was posted as Station House Officer in P.S-Kulpahad on the date of the incident and the FIR was lodged in his presence. The investigation was received by him and he proceeded to the place of the incident where the statements of the first informant and other witnesses were recorded. However, as by that time, the night had set in and there was no sufficient light, the dead body and other incriminating material relating to the incident were kept preserved by the police officials posted there. On the next date, i.e 20.11.1997, th