JUDGMENT :

Umesh Chandra Sharma, J.

1. These criminal appeals have been preferred by the appellants against the common judgment and order of conviction and sentence passed by the Court of Special Judge (SC/ST Act), Bareilly, passed in Sessions Trial No.249 of 2002, under Section 302 read with Sections 147, 148, 302, 149 IPC, Section 3(2)(5) of the Scheduled Caste (SC) and Scheduled Tribe (ST) (Prevention of Attrocities) Act, 1989 (which shall be called in later part of judgment as SC/ST Act) and Section 25 and 4/25 Arms Act, Police Station Kila, District Bareilly on 19.02.2009 in which the trial court convicted the accused persons only under Sections 147, 148, 302 and 149 IPC and acquitted from the charges under Section 4/25, Section 3/25 Arms Act and Section 3 (2) (5) SC/ST Act, hence they are being decided together.

2. In brief, facts of the case are that on 29.09.2001 the complainant/informant, Ramesh Chandra Bharti, PW-1 moved a written complaint on 24.09.2001 at 08:25 p.m. that on 24.09.2001 at 07:00 p.m. he (complainant) was returning to his house with his brother Suresh Chandra Bharti from their shop and when they reached in front of the shop of Dr. R.K. Sharma, Om Prakash, Hawaldaar and Ganga Ram of his locality met them, he stopped and started talking. In the meantime, his brother moved forward about 5-6 steps where Tahir, Bhaiyan, Pappu with pistols, in their hands, Nazuk and Nazim with knives and Hasan with batten (danda) stopped him. Tahir and Hasan caught hold of Suresh and threw him down with intention to kill him, Tahir, Bhaiyan and Pappu @ Kamina fired bullets from hand held pistols, Nazuk and Nazim attacked with knives and Hasan beaten him with a stick. His brother fell on the spot, there was chaos, people walking on the road spared by firing by the accused, the people closed their shops and doors and windows of their houses. Out of fear, when they challenged, the accused ran away towards the New Basti. They recognized the accused persons committing the offence and running away well in the light of the electric bulbs. With the help of the people, he took him to the district hospital where the doctor declared him dead, thereafter he went to the concerned police station keeping the dead body to the mortuary. He requested to take action against the accused persons.

3. After the F.I.R. was lodged, the Investigating Officer (which shall be called later on as 'I.O.') started the investigation. The I.O. took the blood stained soil, empty cartridge of 315 bore from the place of occurrence in his possession and arrested the accused Pappu @ Kamina on 26.09.2001, recovered country-made pistol of 315 bore and live cartridges of the same bore. The inquest report Ex. K-19 was prepared on the same day from 21:30 p.m. to 23:00 p.m. The post-mortem was done by Dr. G.D. Katiyar on 25.09.2001 at 03:15 a.m. He found firearm wounds, incised wounds and abrasions. According to him, death of the deceased was occurred due to shock and hemorrhage on account of ante mortem injuries. The I.O, C.O. (City) Mr. Dinesh Singh collected the post mortem report Ex.Ka-4, prepared the spot map Ex.K-16, recorded the statements of the complainant and the witnesses, arrested the accused persons, recovered country-made pistols and knives from their custody, prepared spot map with regard to recovery of weapons, took permission to prosecute the accused persons under Action 25 Arms Act and filed the charge sheets as Ex.K-12, Ex.K-29, Ex.K-30, Ex.K-31 and Ex.K-32 against five accused persons under Sections 25 and 4/25 Arms Act and charge sheet Ex.K-18 against all the six accused persons under the aforesaid Sections of the I.P.C. and the S.C./S.T. Act.

4. The prosecution has examined the following witnesses:-

(i) PW-1, Ramesh Chandra Bharti, complainant/informant; (ii) PW-2, Om Prakash; (iii) PW-3, Ganga Ram; (iv) PW-4, Sewak Ram; (v) PW-5, Dharampal; (vi) PW-6, Dr. G.D. Katiyar; (vii) PW-7, Head Constable Ram Singh; (viii) PW-8, I.O. Nawab Singh; (ix) PW-9, S.I