(1.) This criminal appeal under Section 374 Cr.P.C. has been filed by accused Suresh Kumar Mallah against judgment and order dated 19.04.2010 passed by learned Additional Sessions Judge/Fast Track Court No. 14, Sultanpur in Sessions Trial No. 178/03 (State of U.P. v. Krishna Kumar @ Gabbar and others), arising out of Crime No. 309/2003, under Section 302 read with Section 34 I.P.C., Police Station - Gosainganj, District - Sultanpur, whereby the present appellant was convicted under Section 302/34 I.P.C. and sentenced with life imprisonment and a fine of Rs. 10,000/- and in default of payment of fine, six months additional imprisonment would be extended.
(2.) Brief facts relevant for disposal of this appeal are that on 27.02.2003 at 16.00 hours complainant Rananjay Singh @ Santosh S/o. Raj Kishor Singh, R/o. Village - Mahmoodpur, Police Station - Gosaiganj, District - Sultanpur had submitted a written complaint in Police Station - Gosaiganj, District - Sultanpur. The said complaint was scribed by one Arun Kumar Singh, Advocate S/o. Sri Jagat Bahadur Singh R/o. Village - Mahmoodpur, Police Station - Gosainganj, District - Sultanpur. It is stated in the complaint that complainant is having inimical term with one Rakesh S/o. Samar Bahadur Singh, R/o. Village - Ram Nagar, Police Station - Kotwali Nagar, District - Sultanpur, and due to which the said Rakesh Singh was inimical with the cousin brother of the complainant, namely, Ram Bujharat Singh. It is also stated that Rakesh Singh is a hardened criminal and absconder and constantly was in attempt to kill them. On 27.02.2003 the cousin brother of the complainant Rambujharat Singh alongwith his cousin brother Ram Nayan Singh were traveling on a motorcycle. Ram Bujharat Singh was driving the motorcycle and Ram Nayan Singh was the pillion rider. They were going on Katka-Mayang road from Shankergardh Bank to Katka Bajar, behind them the complainant was also going on another motorcycle having a pillion rider Veerbahadur Singh. At about 1.30 pm. when the motorcycle of Rambujharat Singh reached near Gram Sabha - Sarvan, from opposite direction, on a motorcycle Krishna Kumar @ Gabbar Yadav R/o. Village - Patna, Police Station - Kurebhar having pillion rider Rakesh Singh S/o. Samar Bahadur Singh, R/o. Ram Nagar Cot, Police Station - Kotwali Nagar, District - Sultanpur and on another motorcycle Pavan Kumar Singh S/o. Shiv Bahadur Singh R/o. Ram Nagar Cot, Police Station Kotwali Nagar, District - Sultanpur alongwith pillion rider Suresh Kumar Mallah S/o. Ram Bharos Mallah R/o. Village - Nakha, Police Station Gosainganj, District - Sultanpur, came there. Accused Krishna Kumar Yadav and Pawan Kumar Singh exhorted and said that let they be roasted by bullet, they should not be saved. Whereupon Rakesh Kumar Singh and Suresh Kumar Mallah having arms opened indiscriminate fire upon Rambujharat Singh and Ram Nayan Singh, which hit them, due to the said injury Ram Bujharat Singh and Ram Nayan Singh fallen on the ground from the motorcycle. All the accused persons were recognized. Seeing the commotion, complainant and other persons, Veer Bahadur Singh ran away towards Gosaiganj. Hearing commotions, some persons of the locality came near spot but seeing occurrence and seeing the miscreants, they ran away and entered in the village. Passers on the road also fled away throwing their belongings to save their lives. There was commotion on the spot. The labourers working in the field were also frightened and leaving their work, they ran away from the field. There was atmosphere of fear. The shops started closing. The complainant alongwith co-villagers Subedar Singh and other persons of the locality took the injured in a Tempo to District Hospital Sultanpur, where both of them were declared dead. It is also stated that motorcycle of Rambujharat Singh was lying on the spot. A request was made that a report was lodged and legal action be taken. On the basis of this written report, a chick F.I.R. being Case Crime No. 309/2003 under Section 302/34 I.P.C. was registered at Police Station concerned on 27.02.2003 at 16.00 hours and an entry to this effect was made at GD Report No. 30 at 16.00 hours on 27.02.2003. The inquest of the deceased persons were prepared on 27.02.2013 and bodies were sent for postmortem. The Investigating Officer visited the scene of occurrence, prepared site plan and collected plain soil and soil with blood from the scene of occurrence. From the scene of occurrence also five numbers of bullet, one empty cartridge and one live cartridge 9 mm were recovered. The Investigating Officer recorded the statement of witnesses and filed chargesheet against the accused Krishna Kumar @ Gabbar, Pavan Kumar Singh, Suresh Kumar Mallah and Rakesh Singh. However, the chargesheet against Rakesh Singh and Suresh Kumar Mallah was filed as absconder. The accused persons were summoned by the Chief Judicial Magistrate concerned vide its order dated 24.06.2003. The case of Krishna Kumar @ Gabbar, Pavan Kumar Singh and Suresh Kumar Mallah was committed to the court of Sessions, however, since accused Rakesh Singh had died during committal proceeding, as such, his case was abated at the time of committal itself. Accused Krishna Kumar @ Gabbar and Pavan Kumar Singh were charged under Section 302/34 I.P.C. whereas accused Suresh Kumar Mallah was charged under Section 302 I.P.C., to which they denied and demanded trial.
(3.) During trial as many as seven witnesses were produced, wherein P.W. 1-Dr. Subodh Kumar, who had conducted post-mortem, P.W. 2 - Rananjay Singh @ Santosh Singh, who is the complainant of this case, P.W. 3 - Subedar Singh, another witness of fact, P.W. 4 - Phoolchandra Prakash, Sub-Inspector, P.W. 5 - Sri Nand Lal Yadav, P.W. 6 - Indra Prakash Singh, Inspector, and P.W. 7 - Pannalal Sub-Inspector. From the side of defence two witnesses D.W. 1 A.P. Singh and D.W. 2 Ram Baran Yadav have also been produced.