JUDGMENT :

Sunita Agarwal, J.

1. Heard Sri Dileep Kumar, learned Senior Advocate assisted by Sri Rizwan Ahmad, learned counsel for the appellants, Sri Durgesh Kumar Singh, learned counsel appearing for appellant-Shyam Narain Pandey in the connected Criminal Appeal No.3239 of 2012 as also Sri Rahul Mishra and Sri Rajeev Upadhyay, learned counsels for the first informant, Sri Roopak Chaubey, learned AGA for the State.

Introduction :

2. These appeals are directed against the judgment and order dated 07.08.2012 passed by the Additional Sessions Judge, Court No.2, Azamgarh in Sessions Trial No.435 of 2006 arising out of Case Crime No.65 of 2006 under Section 147 , 148 149, 302, 120-B, 504, 506 IPC and Section 7 Criminal Law Amendment Act, Police Station Atraulia, District Azamgarh whereby the appellants (7 in number) have been convicted for the offence under Section 147 , 148, 302 read with Section 149 , 120-B IPC and 7 Criminal Law Amendment Act. They have been acquitted for the offence under Section 504 and 506 IPC. Two appellants namely Rajesh Kumar Pandey and Amit Kumar Pandey in the connected Sessions Trial No.436 of 2006 and Sessions Trial No.437 of 2006 have been acquitted for the offence under Section 3 /25 ARMS ACT .

3. The sentence awarded to the appellants are under Section 147 for one month rigorous imprisonment and fine of Rs.1000/-, the default punishment is one month additional rigorous imprisonment; under Section 148 the sentence for two years rigorous imprisonment and Rs.3000/-as fine, the default punishment is six months additional rigorous punishment; under Section 7 Criminal Law Amendment Act sentence for six months additional rigorous imprisonment. Under Section 3 02/149 read with Section 120-B, the appellants have been sentenced for imprisonment for life and Rs.25,000/-each towards fine, the default punishment is three years additional rigorous imprisonment. All the punishments are to run concurrently.

PROSECUTION CASE :

4. The prosecution story unfolded with the first information report lodged on 28.02.2006 at about 19.45 hrs. by Sri Atul Tripathi son of deceased Rajendra Prasad Tripathi resident of P.S. Atraulia, District Azamgarh. The written report given by Sri Atul Tripathi narrates that he and his deceased father were resident of P.S. Atraulia District Azamgarh. On 28.02.2006, the first informant (Atul Tripathi), alongwith Arun Kumar Pandey, Krishna Kumar Tiwari, Rajkumar Tiwari and Ram Shiromani Shukla, was waiting at the 'Kesari Chauraha' for the arrival of his father from Azamgarh. While they were standing, his father alighted from a bus and moved to the pavement towards the East-South side of the crossing (Kesari Chauraha) to go to his house alongwith the first informant and other witnesses.

5. At that point of time, suddenly from a Bolero car, Sons of Laxmi Narain Pandey namely Rajesh Kumar Pandey, Pawan Kumar @ Babloo, Amit Kumar Pandey, Umesh and Ramesh alighted carrying weapons in their hands. They encircled his father and Rajesh Kumar Pandey, Pawan Kumar @ Babloo and Amit Kumar Pandey killed his father by firing from their weapons, Umesh and Ramesh also fired. Laxmi Narain Pandey and Shyam Narain Pandey were sitting in the car and exhorting the assailants that the deceased should not be spared as he wanted to become the Principal. While firing, all the assailants ran away in the said car towards the west side. Crowd was collected on the spot.

6. While leaving the dead body of his father, the first informant went to the police station to lodge the report. The time of the incident as noted in the Check report is 28.02.2006 at about 06.00 PM and the report was lodged on 28.02.2006 at 19.45 hrs, the distance of the police station from the place of the incident which is 'Kesari Chauraha', Kasba Atraulia noted therein is half (½) kilometer. The original report and original G.D. were brought in the Court and G.D. entry of Rapat No.35 was proved to have been prepared on the same date, the carbon copy of which wa