Sajendra and Others vs State of U.P.

Subhash Chandra Agarwal, J.—This criminal appeal has been filed against the judgment and order dated 11.3.2005, passed by Addl. Sessions Judge/Special Judge, E.C. Act, Meerut in Sessions Trial No. 821 of 1999 whereby Appellants (1) Sajendra, (2) Yogendra alias Toni, (3) Sanjay and (4) Santoo were convicted under Sections 148 and 302/149, I.P.C. Each of the Appellant was sentenced to R.I. for two years u/s 148, I.P.C. and to life imprisonment with fine of Rs. 5,000 with default clause u/s 302/149, I.P.C. Both the sentences awarded to the Appellants were directed to run concurrently.

The incident took place on 24.4.1999 at 5.30 p.m. in village Tigri, P.S. Mawana, district Meerut. The F.I.R. (Ext. Ka-1) was lodged by the complainant Ranvir Singh (P.W. 1) on the same day at 6.40 p.m. at P.S. Mawana.

The prosecution story as unfolded in the F.I.R. is that there was long standing enmity between the families of Ranvir Singh (P.W. 1) and Appellant Sajendra. On 24.4.1999, Ranvir Singh (P.W. 1), his brother''s brother-in-law (sala) (Sudhir (P.W. 3) were going to complainant''s fields to supervise the harvesting of wheat crop. At about 5.30 p.m., as they reached near the house of Jal Singh, complainant''s brother Raj Singh and nephew Arvind (both deceased) came from Mawana side on Bullet motorcycle No. D.L. 4-S-E-1922. As their motorcycle reached in front of house of Atar Singh, accused Satya Prakash and Appellant Sajendra armed with rifles, Robin, Appellants Sanjay, Yogendra alias Toni and Santoo armed with country-made pistols, came out of field of Raghuvir Singh and stopped the motorcycle of Raj Singh. Satya Prakash exhorted his companions to kill them. On alarm being raised, Rajvir Singh (P.W. 2) also reached there. Sajendra fired from his rifle hitting Arvind from behind. Arvind fell down from the motorcycle. Thereafter, Robin and Sanjay opened fire at Arvind with country-made pistols. Raj Singh left the motorcycle and ran towards his house. All the accused chased Raj Singh, surrounded him in front of house of Jal Singh, and opened fire at Raj Singh who got injured and fell down at the door steps of Jal Singh. Satya Prakash shot Raj Singh in the head. All the accused went away towards jungle in the South. Neighbours felt terrorised and closed their doors. Complainant and witnesses went near Raj Singh and Arvind and found them dead. Ranvir Singh (P.W. 1) wrote the written report Ext. Ka-1 and gave it at Mawana Police Station on the same day at 6.40 p.m.

On the basis of written report, Ext. Ka-1, Head Moharrir Chhotey Singh (P.W. 5) prepared check report Ext. Ka-5 on 24.4.1999 at 18.40 hours and the case was registered at Crime No. 266 of 1999 under Sections 147, 148, 149 and 302, I.P.C. against the accused persons and an entry was made in the G.D. at 18.40 hours on 24.4.1999 at serial No. 99 (copy Ext. Ka-6). S.H.O. Sri K.N. Singh (P.W. 6) was not present at the police station at the time of lodging of the F.I.R., but was present in the qasba Mawana to monitor Moharram procession. He was informed about the incident through wire-less set.

S.H.O. Sri K.N. Singh (P.W. 6) after receiving information about the incident through wire-less set, proceeded towards the place of occurrence. On the way he met the complainant Ranveer Singh at his house at Mawana and interrogated him. S.S.I. Sundar Singh Dukhtal met him at the place of incident. He got the inquest performed on the dead body of the deceased Arvind and Raj Singh through S.S.I. Sundar Singh Dukhtal. Dead bodies were sealed and sent for post-mortem through constable Vijay Dutt Sharma (P.W. 10) and constable Rajpal Singh. On the same day, he inspected the place of occurrence in the light of Petromax. One live cartridge and two cartridge cases of 315 bore and two cartridge cases of 12 bore were recovered from the spot, which were sealed and recovery memo Ext. Ka-12 was prepared. Motorcycle of the deceased was taken into police custody and given in the supurdagi of the complainant and memo Ext. Ka-13 was prepared. He also took blood stained and plain earth from the places where the dead bodies of Arvind Kumar and Raj Singh were found and prepared memos Ext. Ka-14 and Ka-15. He got the site plan (Ext. Ka-16) prepared through S.S.I. Sundar Singh Dukhtal. On 25.4.1999, he interrogated Sudhir (P.W. 3) and witnesses of the inquest. On 28.4.1999, he interrogated Rajveer Singh (P.W. 2) and Randhir Singh. Appellants Yogendra and Sanjay surrendered in Court. The Investigating Officer interrogated them in jail. On 15.5.1999, they confessed to the crime and promised to get the arms used in the incident recovered. He took both of them on police custody remand. At the instance of Appellant Sanjay, one country-made pistol and one live cartridge of .315 bore were recovered on 21.5.1999 at 7.25 a.m. from the jungle of village Tigri from a grove. One country-made pistol and one live cartridge of 12 bore were recovered at 7.45 a.m. at the instance of Appellant Yogendra alias Toni and recovery memo Ext. Ka-17 was prepared. On 1.6.1999 Appellant Santoo was taken on police remand and at his instance, one country-made pistol and one live cartridge of 12 bore were recovered and recovery memo Ext. Ka-18 was prepared. Thereafter, the investigation was handed over under the orders of S.S.P., Meerut to Inspector in-charge S.I.S., Meerut Sri R.K. Singh (P.W. 8) who submitted charge-sheet (Ext. Ka-25) against four Appellants and Robin Singh.

Cases u/s 25 of Arms Act registered against Sanjay, Yogendra alias Toni and Santoo were investigated by S.I. Vijay Pratap Singh (P.W. 7) and S.I. Jagdish Singh (P.W. 9). After obtaining sanction for prosecution, S.I. Vijay Pratap Singh (P.W. 7) submitted charge-sheets Exts. Ka-23 and 24 against Yogendra alias Toni and Sanjay and P.W. 9 submitted charge-sheet Ext. Ka-26 u/s 25, Arms Act against Santoo.

Accused Satya Prakash named in the F.I.R. was not charge-sheeted by the police. Accused Robin Singh was charge-sheeted but he died during trial and the case against him abated.

Autopsy on the dead body of Arvind was performed on 25.4.1999 at 10.30 a.m. by Dr.R.N. Gupta (P.W. 4). The deceased was about 25 years of age and died about three quarters of a day before. Rigor Mortis was present in whole of body. Following ante-mortem injuries were found on the dead body:

(1) Multiple abrasions size 4 cm. x 2 cm. to 3 cm. x 1.5 cm. on right side forehead and left side face region.

(2) Gunshot (fire arm) wound of entry size 5 cm. x 4 cm. x brain cavity muscle deep on the right side parietal region, 6 cm. above right eye-brow. Margins are inverted and lacerated. Bullet recovered.

(3) Fire-arm wound of entry size 2 cm. x 1.5 cm. x through and through on right scapular region. Margin inverted and lacerated.

(4) Fire-arm wound of exit 4 cm. x 3.5 cm. x communicating to injury No. 3 on right side back upper third region 5 cm. outer to central line. Margin everted and lacerated.

(5) Two abrasions size 2 cm. x 2 cm., 1.5 cm. x .75 cm. on dorsal vertebral region area 10 cm. x 4 cm.

(6) Two abrasions 2 cm. x 1 cm., 1 cm. x 1 cm. on right elbow back side.

On internal examination frontal, parietal and occipital bones of right side were found fractured, brain and membranes were lacerated. Base and survical vertebra were fractured. Stomach was empty. Post-mortem report is Ext. Ka-3. As per opinion of the doctor, Arvind could have died on 24.8.1999 at 5.30 p.m. by fire-arm injuries. Autopsy on the dead-body of Raj Singh was performed by Dr.R.N. Gupta (P.W. 4) on 25.4.1999 at 11.30 a.m. The deceased was about 55 years of age. The death was caused about 3 quarters of a day before. Rigor Mortis was present. Following ante-mortem injuries were found on the dead body:

Fire-arm wound of entry size 2 cm. x 1.5 cm. x brain cavity deep on left side head, 3 cm. above left ear, margins inverted and lacerated wound is at one O''clock position.

Fire-arm wound of exit size 7 cm. x 6 cm. x communicating to injury No. 1 on head right side, 2 cm. behind to right ear at 9 O''clock position. Margin everted and lacerated.

Direction: left to right and straight.

Gun shot wound of entry, size 1.5 cm. x 1 cm. x bone deep on left side forehead just above left eyebrow. Margins inverted and lacerated.

Gun shot wound of exit 2 cm. x 3 cm. communicating to injury No. 3 on left side upper eye lid region. Margins everted, lacerated, direction downward.

Gun shot wound of entry 2.5 cm. x 2 cm. x brain cavity deep on left ear region. Margins inverted and lacerated.

Gun shot wound of exit 4 cm. x 3 cm. x communicating to injury No. 5 on chin left side. Margins everted and lacerated.

Direction: left to right downward and forward.

Gun shot wound of entry size 1.5 cm. x .75 cm. x chest cavity deep on right scapular region. Margins inverted and lacerated.

Gun shot wound of exit 4 cm. x 4 cm. x communicating to injury No. 7 on neck left side just above the clavicle. Margins everted and lacerated.

Direction: right to left forward and upward.

Gun shot wound of entry size 2 cm. x 2 cm. x abdomen deep on left side abdomen 16 cm. outer to umbilicus at 2 O''clock position. Margins inverted and lacerated.

Gun shot wound of exit size 4 cm. x 3 cm. x communicating to injury No. 9 on back right side, middle third, 6 cm. outer to centre line. Margins everted and lacerated.

Direction: left to right straight and downwards.

Gun shot wound with loss of portion of skin and muscle size 6 cm. x 3 cm. x muscle on left fore-arm, middle third front. Margins lacerated and mixed inverted and inverted direction could not be ascertained.

On internal examination various bones of head and face were found fractured. Brain and membranes were lacerated. Base was fractured. Many vertebra were fractured. Spinal cord was lacerated in upper part. Both lungs and it''s membranes were lacerated. Stomach was empty. In the opinion of doctor, death of Raj Singh could have been caused on 24.4.1999 at 5.30 p.m. by fire-arm injuries. Post-mortem report is Ext. Ka-4.

Charge under Sections 148 and 302/149, I.P.C. was framed by the Sessions Judge against the Appellants. The Appellant Sanjay, Yogendra alias Toni and Santoo were also charged u/s 25, Arms Act. The Appellants denied the charge and claimed to be tried.

Prosecution examined as many as 10 witnesses in support of its case. Ranvir Singh (P.W. 1), Rajvir Singh (P.W. 2) and Sudhir (P.W. 3) were examined as witnesses of fact. Dr.R.N. Gupta (P.W. 4) has proved the post-mortem reports of deceased Arvind and Raj Singh. Chhotey Singh (P.W. 5) is the scribe of check report Ext. Ka-5 and G.D. entry Ext. Ka-6. He is also the scribe of check report Ext. Ka-7 u/s 25, Arms Act and the relevant G.D. entry Ext. Ka-8. K.N. Singh (P.W. 6) and R.N. Singh (P.W. 8) are Investigating Officers of the case u/s 302, I.P.C. V.P. Singh (P.W. 7) and Jagdish Singh (P.W. 9) are the Investigating Officers of the cases u/s 25, Arms Act. Affidavit of Vijay Dutt (P.W. 10) was filed to prove that he took the dead-bodies of Arvind and Raj Singh to the mortuary in sealed condition.

The Appellants in their statements u/s 313, Code of Criminal Procedure denied the prosecution allegations and claimed that they have been falsely implicated due to enmity and that the F.I.R. was lodged much later in collusion with the police. The Appellant Sajendra has further stated that in the year 1990, Ranvir (P.W. 1), his brother Rohtash and father Hoshiyarey had entered his house, killed his father Bhanwar Singh and fired at the wife of Subodh. The Appellants did not adduce any oral evidence in defence.

Relying upon the prosecution version and the evidence adduced on behalf of the prosecution, learned Sessions Judge convicted the Appellants under Sections 148 and 302/149, I.P.C. and sentenced them as aforesaid. However, the Appellants Sanjay, Yogendra alias Toni and Santoo were acquitted of the charge u/s 25, Arms Act.

We have heard Ashok Nath Tripathi, learned Counsel for the Appellants, Sri K.N. Vajpayee, learned A.G.A. Ist for the State, Sri Virendra Singh, learned Counsel for the complainant and perused the trial court record.

Learned Counsel for the Appellants submitted that there is no legal and credible evidence against the Appellants. Ranvir Singh (P.W. 1) was examined-in-chief by the trial court, but opportunity of cross-examination was not given to the Appellants as Ranvir Singh (P.W. 1) died and could not be cross-examined. It was further submitted that without cross-examination, the statement of Ranvir Singh (P.W. 1) is not admissible in evidence. It was further submitted that through Rajvir Singh (P.W. 2) supported the prosecution case in his examination-in-chief but on cross-examination, he admitted that the incident did not take place in his presence and he had given his statement at the time of recording his examination-in-chief on the persuasion of Ranvir Singh (P.W. 1) who was his cousin brother. It was further submitted that the third and the last eye-witness of the incident Sudhir (P.W. 3) had also not supported the prosecution case and denied his presence at the place of incident and was declared hostile by the prosecution. The pith and substance of the submission made by the learned Counsel for the Appellant is that the statement of Ranvir Singh (P.W. 1) is not admissible against the Appellant as he could not be cross-examined by the Appellants on account of his death and the statement of Rajvir Singh (P.W. 2) could not be relied upon on account of his admission in the cross-examination that he was not present on spot and did not see the incident. It was further submitted that there is no legal and credible evidence against the Appellants and the learned trial court recorded the findings of conviction without any evidence.

It was further submitted by the learned Counsel for the Appellants that one co-accused Satya Prakash was also named in the F.I.R. but was exonerated by the police and no charge-sheet was filed against him. During trial, Ranvir Singh (P.W. 1) and Rajvir Singh (P.W. 2) specifically stated that Satya Prakash also fired at the deceased but Satya Prakash was not summoned to face trial by the trial court u/s 319, Code of Criminal Procedure

It was further submitted that the Appellants had enmity with the complainant Ranvir Singh (P.W. 1) only but no attempt was made by the Appellants on his life. The Appellants had no motive or enmity to kill to deceased Arvind and Raj Singh. It was further submitted that Ranvir Singh (P.W. 1) and Rajvir Singh (P.W. 2) did not reside in the village Tigri but lived at qasba Mawana which is at the distance of about 5 km. and were teachers at Mawana and both of these witnesses had no occasion to be at the place of incident and were merely chance witnesses. Their presence at the time of incident was highly doubtful.

It was further submitted that special report of the incident was not sent by the police to the higher authorities and the F.I.R. was ante-timed. The check report does not show any date below the signatures of the Circle Officer. Learned Counsel drew the attention of the Court to the statement of S.I., Sri K.N. Singh (P.W. 6), the Investigating Officer that the case was registered in his absence. On receiving the information about the case, he proceeded towards the place of incident. On the way, he met the complainant at his (P.W. 1''s) house at Mawana and interrogated him. It was further submitted that the Appellants belonged to different families and there was no common ground among them to commit the crime. No independent witness of the locality was interrogated by the Investigating Officer nor examined by the prosecution and only interested witnesses have been produced. It was further submitted that the place of occurrence is towards North of the village whereas the fields of the informant are in the South and, therefore, the presence of Ranvir Singh (P.W. 1) is highly doubtful. The Appellants were allegedly armed with two rifles and four country-made pistols and there was no necessity to chase Raj Singh. Ranvir Singh (P.W. 1) did not make any effort to save his brother and nephew which makes his presence at the spot doubtful. It was further submitted that as per the prosecution case, Raj Singh was surrounded by the Appellants and fired at by the Appellants, but all the injuries on his body are on the left side. Arvind was shot at by three persons, but sustained only two gun-shot wounds of entry and no explanation has been furnished by the prosecution regarding injuries Nos. 1, 5 and 6 which are abrasions.

Per contra, learned A.G.A. and learned Counsel for the complainant submitted that Ranvir Singh (P.W. 1) was examined-in-chief on 16.2.2000 but he was not cross-examined by the learned Counsel for the Appellants on the same date. Even on subsequent dates, he was not cross-examined. On 30.5.2000, the witness was present but despite opportunity being given, he was not cross-examined by the Appellants and right of cross-examination was closed by the trial court. Ranvir Singh (P.W. 1) apprehended danger to his life from the Appellants and learned trial court provided him with security for coming to the Court but despite security being provided, Ranvir Singh (P.W. 1) was murdered by the friends and relatives of the Appellants, in respect of which, F.I.R., Case Crime No. 78 of 2001 under Sections 147, 148, 149, 307 and 302, I.P.C. was lodged against Dharamvir, Ajay alias Pinki, Nauraj, Harendra and Sanjiv alias Munshi. After submission of the charge-sheet in the murder of Ranvir Singh (P.W. 1), the case was tried by Additional Sessions Judge, Court No. 15, Meerut as S.T. No. 627 of 2001 which ended in conviction vide judgment and order dated 28.10.2003. It was further submitted that opportunity to cross-examine Ranvir Singh (P.W. 1) was fully provided to the Appellants but they deliberately avoided the cross-examination of Ranvir Singh (P.W. 1) who was later on murdered by relatives and friends of the Appellants. The judgment of the trial court in Sessions Trial No. 627 of 2001 has been filed as Annexure-1 to the counter-affidavit filed by Randhir Singh, the brother of the deceased complainant Ranvir Singh. In the counter-affidavit, criminal history of the Appellants and relationship of accused in the murder of Ranvir Singh with the Appellants is also shown. It is submitted that the statement of Ranvir Singh (P.W. 1) is admissible even without cross-examination u/s 33 of the Indian Evidence Act, 1872 as the Appellants had the right and opportunity to cross-examine him but despite opportunity being given, failed to exercise their right of cross-examination. It was further submitted that when Rajvir Singh (P.W. 2) was examined, he was also not cross-examined on that date and the Appellants sought adjournment after adjournment on various grounds to demoralise the witness. Rajvir Singh (P.W. 2) was cross-examined after the murder of Ranvir Singh (P.W. 1). By that time, P.W. 2 felt highly terrorised due to murder of Ranvir Singh (P.W. 1) and turned hostile due to fear psycosis. It was further submitted that the cross-examination of Rajvir Singh (P.W. 2) shows that he turned hostile only half heartedly. He supported the prosecution case regarding date, time and place of the occurrence. He also admitted the presence of Ranvir Singh (P.W. 1) in the village soon after the incident. When cross-examined by the prosecution, he failed to answer the question as to whether his statement given in the examination-in-chief was true or false. It was further submitted that in the background of Ranvir Singh (P.W. 1) being murdered, the fact of Rajvir Singh (P.W. 2) turning hostile is understandable and his statement given in the cross-examination should be ignored and his statement given in the examination-in-chief is fully reliable. Rajvir (P.W. 2) though turned hostile, admitted that Sudhir (P.W. 3) was also present in the village though Sudhir turned hostile to the prosecution and deposed that he was not present in village Tigri at the time of incident.

It was further submitted that the F.I.R. was not ante-timed. Ranvir (P.W. 1) and Rajvir (P.W. 2) were not cross-examined on this point at all. The parties were highly inimical. Earlier, the father of Appellant Sajendra was murdered in 1990 by Ranvir Singh (P.W. 1), his brother Rohtash and father Hoshiyarey. Thus, the Appellants had grudge against the family of the complainant and for this reason, the brother and nephew of the complainant were killed. During trial, co-accused Robin was also murdered. In that case, Ranvir Singh (P.W. 1), Rohtash, Randhir, Rajvir (P.W. 2), Sachin and Chaman Singh were accused. There have been many serious incidents between the parties and in such circumstances, no independent person could dare to come forward to give evidence against the Appellants. It was further submitted that even the hostile witness Rajvir Singh (P.W. 2) has admitted his presence and the presence of the complainant in the village on the date of incident and the plea of the Appellants that these two witnesses resided at Mawana and could not be present in the village was not tenable. It was submitted that Mawana is at a distance of 5 km. only from village Tigri though Ranvir Singh (P.W. 1) and Rajvir Singh (P.W. 2) had built their houses at Mawana but their agricultural lands were in village Tigri and their presence in village Tigri was natural.

To appreciate the contentions raised by the learned Counsel for the parties, it is necessary to have a look at the evidence of eye-witnesses examined at the trial. Ranvir Singh (P.W. 1) was examined-in-chief on 16.2.2000. He stated that Appellants Sajendra, Santoo, Yogendra and Sanjay belong to his village. In 1990, Bhanwar Singh, father of Appellant Sajendra was murdered. A false report was lodged against him, his brother and father. In 1995, they were acquitted of the charge of murder of Bhanwar Singh. Since then the accused harboured enmity with them. On 24.4.1999 at about 5.30 p.m., he (P.W. 1) alongwith Sudhir (P.W. 3) were going to jungle to supervise the harvesting of wheat. As they reached near the house of Jal Singh, his brother Raj Singh and nephew Arvind came there from a motorcycle. Motorcycle was being driven by Raj Singh and Arvind was sitting on the pillion seat. As Raj Singh and Arvind reached in front of house of Mahipal Singh, accused Satya Prakash, Sajendra, Sanjay, Yogendra, Robin and Santoo came out of the field of Raghuvir Singh and stopped the motorcycle. Satya Prakash and Sajendra were armed with rifles and the rest of the accused were armed with country-made pistols. On the exhortation of Satya Prakash, Sajendra fired at Arvind from behind. Arvind fell down from the motorcycle. Thereafter, Sanjay and Robin fired at Arvind with country-made pistols. In the meantime, Raj Singh started running towards the village leaving the motorcycle on the spot. On alarm, Rajvir Singh (P.W. 2) also reached there and saw the incident. The accused persons chased Raj Singh and surrounded him in front of the house of Jal Singh and fired at him. Raj Singh was injured and fell down. Satya Prakash also fired at the head of Raj Singh. All the accused ran away towards the jungle brandishing their weapons. Raj Singh and Arvind died on spot. He himself wrote F.I.R. Ext. Ka-1 and gave it to the police. Raj Singh was employed in the agricultural department at Jansath. Arvind was a mechanical engineer.

Rajvir Singh (P.W. 2) stated in his examination-in-chief that on 24.4.1999 at 5.30 p.m. he was going from his fields to his house, he heard the shrieks of Ranvir Singh and Sudhir and saw the incident. He narrated the whole incident and fully supported the statement of Ranvir Singh (P.W. 1). He was examined on 2.2.2001. He further stated that the F.I.R. was lodged by Ranvir Singh (P.W. 1) at Police Station, Mawana. Police reached the spot on the same day and inquest proceedings were held. Inquest memo Ka-1 and Ka-3, bear his signatures. His examination-in-chief was recorded on 2.2.2001, but the counsel for the Appellants did not appear in the trial to cross-examine him. He was cross-examined after more than a year on 3.4.2002 in which he turned hostile and stated that he did not see the incident. He reached the spot at about 6 p.m. He saw the dead-bodies of both the deceased. On that day, he was present in the village. F.I.R. was written by Ranvir Singh in his presence.

Sudhir (P.W. 3) was examined on 16.5.2002 and stated that he did not see the incident. He came to know about the incident from his family members. He was declared hostile by the prosecution and was cross-examined by learned prosecutor. He disowned the statement recorded by the Investigating Officer u/s 161, Code of Criminal Procedure

Section 33 of the Indian Evidence Act provides:

Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.-Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:

Provided-

that the proceeding was between the same parties or their representatives in interest ;

that the adverse party in the first proceeding had the right and opportunity to cross-examine ;

that the question in issue were substantially the same in the first as in the second proceeding.

Explanation.-A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this Section.

Whether the statement of Ranvir Singh (P.W. 1) is admissible against the Appellants u/s 33 of Indian Evidence Act is to be decided on the basis of the fact as to whether the Appellants had the right and opportunity to cross-examine him when he was alive.

A perusal of the order sheet of the sessions trial reveals a sordid state of affairs as to how the trial was hijacked by the Appellants by harassing and intimidating the witnesses and also by creating insurmountable impediments for the trial court. Charge against the Appellants was framed on 15.11.1999. On 2.2.2000, an application 8-Kha was moved before the trial court, i.e., 6th Additional Sessions Judge, Meerut by Ranvir Singh (P.W. 1), Rajvir Singh (P.W. 2) and Sudhir (P.W. 3) for police protection on the ground that they apprehended danger to their lives from relatives and friends of the Appellants who wanted to kill them. Police protection was ordered. On 16.2.2000, examination-in-chief of Ranvir Singh (P.W. 1) was recorded, but the cross-examination was deferred on the basis of an application for adjournment moved by learned Counsel for the Appellants, though the same was strongly objected by the prosecution. On 1.3.2000, 2.3.2000 and 18.4.2000, the lawyers were on strike and on 19.4.2000, Ranvir Singh (P.W. 1) sought exemption from appearing in Court on the ground that he was busy in examination duty. On 30.5.2000, Ranvir Singh (P.W. 1) was present in Court, but learned Counsel for the accused-Appellants did not turn up till 3 p.m. to cross-examine him and therefore learned trial Judge closed the opportunity of cross-examination of Ranvir Singh (P.W. 1). On the very next date on 12.6.2000, Ranvir Singh (P.W. 1) was present in Court. The Courts could not function due to condolence, but an application 14-Kha for recalling Ranvir Singh (P.W. 1) for cross-examination was moved on behalf of Appellants on the ground that on 16.2.2000, the counsel for the accused was busy in another case. This application was opposed by the prosecution, but was allowed by the trial court on 19.7.2000 with the condition that if the accused did not cross-examine Ranvir Singh (P.W. 1) on the next date, i.e., 10.8.2000, the opportunity shall come to an end. On 10.8.2000, Ranvir Singh (P.W. 1) was present but three out of four accused could not be summoned from jail and the case was adjourned. Ranvir Singh (P.W. 1) again appeared for cross-examination on 15.9.2000 but an application 16-Kha for adjournment was moved by a new counsel Jagvir Singh Pawar on the ground that he was engaged on that very day. The application was allowed and last opportunity was granted. On 25.9.2000 and 9.10.2000, the witness did not appear. On 16.10.2000 and 31.10.2000, the record was not available as the same had been summoned by the Sessions Judge, Meerut for the hearing of Transfer Application No. 108 of 2000 moved by the Appellant Sajendra on the ground that he was not given an opportunity to cross-examine Ranvir Singh (P.W. 1) and the complainant had some contact with the presiding officer.

The transfer application was allowed by the Sessions Judge, Meerut vide order dated 15.11.2000 and the case was transferred to the Court of VI Ith Additional Sessions Judge, Meerut. On 22.11.2000, the accused were not produced from jail. On 14.12.2000, Ranvir Singh (P.W. 1) reached late in Court and in the mean time, the case has been adjourned. On 16.1.2001, Ranvir Singh (P.W. 1) was present in Court for cross-examination. Fresh vakalatnama of Rajpal Singh, the previous counsel for the Appellants was filed and application for adjournment was made which was allowed by the trial court on the basis of undertaking given by the learned Counsel that he would not seek any adjournment for the purpose of cross-examination. It was further ordered that case would proceed on day-to-day basis. On the next day, i.e., on 2.2.2001, another drama was enacted. Ranvir Singh (P.W. 1) and Rajvir Singh (P.W. 2) were present. Rajpal Singh, advocate, learned Counsel for the accused stated before the trial court that the accused had withdrawn the file from him. The accused persons sought time to engage a new counsel. Examination-in-chief of Rajvir Singh (P.W. 2) was recorded. The trial court found that various advocates including Anil Kumar, Rajpal Singh, Amit Kumar Tewatiya, K.K. Pahawa, Chaudhary Jagveer Singh Pawar and Santosh Kumar Singh had been engaged by the accused who did not wish to let the case proceed further. Therefore, prayer for adjournment was rejected and opportunity for cross-examination was closed.

On 28.2.2001, again an application was moved by the accused persons for recalling Ranvir Singh (P.W. 1) and Rajvir Singh (P.W. 2) for cross-examination. Objections were invited and 23.3.2001 was fixed for disposal. In the meantime, the case was again transferred to the Court of v. Ith Additional Sessions Judge, Meerut vide order dated 28.2.2001, passed by the Sessions Judge, Meerut. On 23.3.2001, 10.4.2001, 1.5.2001 and 24.5.2001, the witnesses were not present. On 4.6.2001, v. Ith Additional Sessions Judge, Meerut wrote a letter to the Sessions Judge for transferring this case to some other Court. On 25.7.2001, the case was taken up by VI Ith Additional Sessions Judge, Meerut to whom the case was transferred vide order dated 23.6.2001, passed by Sessions Judge. Arguments were heard on the application moved by the accused persons for recalling Ranvir Singh (P.W. 1) and Rajvir Singh (P.W. 2) for examination. The application was opposed by the prosecution and learned Counsel for the complainant. It was further stated by the prosecution that on 6.3.2001, Ranvir Singh (P.W. 1) was murdered by family members and friends of accused and they wanted to murder Rajvir Singh (P.W. 2) also. Learned trial court vide a very detailed order found that enough opportunity was given to the accused to cross-examine Ranvir Singh (P.W. 1) but he was deliberately not examined. Moreover Ranvir Singh (P.W. 1) was dead by that time. Permission to cross-examine Rajvir Singh (P.W. 2) was granted on the basis of undertaking of Sri Jairam Singh Rana, learned Counsel for the accused that he would cross-examine P.W. 2 on 21.8.2001.

On 21.8.2001, there was a lock out in the Courts. On 4.9.2001, 27.9.2001 and 15.10.2001, lawyers were on strike. On 17.11.2001, P.O. was on leave. Thereafter Rajvir Singh (P.W. 2) remained absent on 14.12.2001, 14.1.2002, 31.1.2002, 22.2.2002 and 7.3.2002 an arrest warrant was issued against Rajvir Singh (P.W. 2). On 18.3.2002, an application for recall of arrest warrant was moved by Rajvir Singh (P.W. 2) on the ground that he could not attend the Court as the police did not reach his house to escort him to the Court. His application was rejected. On the next date on 3.4.2002, Rajvir Singh (P.W. 2) was cross-examined by the accused persons. During cross-examination, he turned hostile. On the very next date on 16.5.2002, Sudhir (P.W. 3) was also examined and declared hostile by the prosecution.

The above facts clearly go to show that the Appellants were afforded sufficient opportunity to cross-examine Ranvir Singh (P.W. 1) but they failed to exercise their right of cross-examination. Whenever Ranvir Singh (P.W. 1) appeared in the Court for cross-examination, adjournment were sought on one ground or another. Counsels were changed and reappointed repeatedly simply to create grounds for adjournment. Transfer applications were moved without any reasonable cause.

Considering the above facts, we have come to the conclusion that the Appellants never intended to cross-examine Ranvir Singh (P.W. 1). They were simply trying to prolong the case till Ranvir Singh (P.W. 1) was either won over or eliminated. Ranvir Singh (P.W. 1) was ultimately murdered by the relatives and friends of the Appellants. Copy of the judgment passed by the Additional Sessions Judge, Court No. 15, Meerut passed in Sessions Trial No. 627 of 2001, 6 of 2002 and 628 of 2001 dated 28.10.2003, filed in appeal as Annexure-1 of counter-affidavit filed by Randhir Singh, brother of the complainant reveals that Dharamveer, Ajay alias Pinki and Nauraj were found guilty of the murder of Ranvir Singh (P.W. 1). Counter-affidavit also shows that Nauraj is the uncle of Appellant Sajendra and Pinki alias Ajay is the real nephew of Nauraj. Thus, it is clear that the persons who killed Ranvir Singh (P.W. 1) are relatives of Appellant Sajendra. It was stated by learned Counsel for the Appellants that an appeal against conviction is pending before the High Court.

Learned Counsel for the Appellants relied upon the ruling of Jammu and Kashmir High Court in the matter of Dwarka Dass and Others Vs. State and Others, wherein it was held that the right of cross-examination was one of the principles of natural justice that the evidence may not be read against the party if the same has not been subjected to cross-examine or at least an opportunity has not been given for cross-examination. This ruling does not help the Appellants at all as sufficient opportunity was afforded by the trial court to the Appellants to cross-examine Ranvir Singh (P.W. 1).

Learned Counsel for the Appellants also relied on Nandram Khemraj Vs. State of M.P. and Another, wherein Hon''ble Madhya Pradesh High Court held that in a complaint case, the accused did not have any right to cross-examine a witness u/s 244, Code of Criminal Procedure but after framing of the charge, if the witness is not available for cross-examination u/s 246, Code of Criminal Procedure the statement recorded u/s 244, Code of Criminal Procedure cannot be relied upon. This ruling is also of no help of the Appellants as this ruling relates to a complaint case triable by a Magistrate where the witness is examined-in-chief u/s 244, Code of Criminal Procedure and at that stage, the accused does not have any right to cross-examine the witness. In the instant case, the procedure prescribed for sessions cases is applicable where the witnesses are examined u/s 231(1), Code of Criminal Procedure and the accused have a right to cross-examine the witnesses u/s 231(2), Code of Criminal Procedure Thus, the accused had the right to cross-examine Ranvir Singh (P.W. 1) at the time of his examination and sufficient opportunity was also given to the Appellants for cross-examination which was not availed.

Learned A.G.A. has placed reliance on Mulkh Raj Sikka Vs. Delhi Administration, wherein under the old Code of Criminal Procedure a witness was examined before the committing Magistrate, but could not be examined at the trial due to death and his statement recorded before the committing Magistrate was tendered before the Sessions Court. The Hon''ble Apex Court held that as per the provisions of Section 33 proviso 2 of Indian Evidence Act, the accused had a right to cross-examine the witness in the committing court but his counsel had preferred not to cross-examine at that stage and had reserved it for the Session Court and thus, both the conditions of Section 33 were satisfied and the evidence of such witness recorded in committing court was admissible in the sessions trial. This ruling fully applies to the facts of the present case. In the present case also, the Appellants had a right to cross-examine P.W. 1 when he was examined and even thereafter sufficient opportunity was provided to the Appellants to cross-examine Ranvir Singh (P.W. 1) but the Appellants with ulterior motive failed to cross-examine him. Thus, proviso 2 of Section 33 of Indian Evidence Act is attracted and the statement of Rajvir Singh is admissible against the accused-Appellants.

From the above discussion, we are satisfied that more than enough opportunity was given to the Appellants by the trial court to cross-examine Ranvir Singh (P.W. 1). It were the Appellants who failed to cross-examine him. Trial was deliberately delayed by the Appellants on one pretext or the another. In these circumstances, we find that the statement of Ranvir Singh (P.W. 1) is relevant and admissible u/s 33 of the Indian Evidence Act even without cross-examination as the Appellants were given sufficient opportunity by the trial court to cross-examine him, but they deliberately avoided to avail the opportunity.

We therefore, do not find any force in the submissions of learned Counsel for the Appellants in this regard.

Regarding Rajvir Singh (P.W. 2) also, we find that his cross-examination was also deliberately avoided till murder of Ranvir Singh (P.W. 1). We cannot lose sight of the fact that at the beginning of the trial all the three eye-witnesses made an application to the trial court for police protection as they apprehended danger to their lives from friends and relatives of the Appellants. In this background, it can be easily understood as to why Rajvir Singh (P.W. 2) turned hostile out of fear, but only half heartedly. In his examination-in-chief recorded on 2.2.2001, he fully supported the prosecution case and corroborated the statement of Ranvir Singh (P.W. 1). His cross-examination was recorded after more than a year on 3.4.2002 in which he stated that he did not see any assault and that he reached the spot at 6 p.m. He did not see the Appellants committing murders. He had given his statement dated 2.2.2001 at the instance of Ranvir Singh (P.W. 1). He was declared hostile by the prosecution and cross-examined by learned prosecutor in which he stated that on 24.4.1999, he was present in the village. F.I.R. was written by Ranvir Singh (P.W. 1) in his presence. He came to know at that time that Sajendra and others were named in the F.I.R. He further admitted that inquest memos were prepared after lodging the F.I.R. He was a panch witness of the inquest memos. He further admitted that he gave his statement dated 2.2.2001 in his full senses, without any pressure, but on the bidding of Ranvir. When asked as to whether the previous statement dated 2.2.2001 was false or true, he replied that he cannot say whether his statement was false or true. He also admitted that Sudhir (P.W. 3) was also there. The Investigating Officer had interrogated him and he had disclosed the names of the accused to the Investigating Officer.

From the cross-examination of P.W. 2, it is apparent that he was under tremendous pressure at the time of cross-examination. The complainant Ranvir Singh (P.W. 1) had already been murdered. His statements regarding date, time and place of the incident finds corroboration from the statement of Rajvir Singh (P.W. 2) though he turned hostile.

In the case of Khujji alias Surendra Tiwari Vs. State of Madhya Pradesh, the Hon''ble Apex Court was faced with a similar situation. In that case, P.W. 1 was examined on 16.11.1978 (wrongly printed as 1976). In his examination-in-chief, he fully supported the prosecution case, narrated the manner of assault and identified all the accused. He was not cross-examined on that date and his cross-examination commenced from 15.12.1978. In the cross-examination, he stated that Appellants Khujji and Gudda had their back towards him and hence he could not see their faces. The Hon''ble Apex Court approved the finding of the High Court that during one month period that elapsed since the recording of examination-in-chief, something transpired which made him shift his evidence on the question of identity to help the Appellants. The Hon''ble Apex Court held that the evidence of such witness is acceptable regarding the time, place, manner of the incident as well as the identity of the assailants.

In Radha Mohan Singh alias Lal Saheb and Ors. v. State of U.P. 2006 (1) JIC 854 : 2006 (1) ACR 825 (SC), the Hon''ble Apex Court held:

It is well-settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof.

In R.K. Anand Vs. Registrar, Delhi High Court, the Hon''ble Apex Court held:

Every trial that fails due to external interference is a tragedy for the victim(s) of the crime. More importantly, every frustrated trial defies and mocks the society based on the rule of law. Every subverted trial leaves a scar on the criminal justice system. Repeated scars make the system unrecognisable and it then loses the trust and confidence of the people.

Every failed trial is also, in a manner of speaking, a negative comment on the State''s High Court that is entrusted with the responsibility of superintendence, supervision and control of the lower courts. It is, therefore, high time for the High Courts to assume a more proactive role in such matters.

In view of the above discussion, we find that the statement of Ranvir Singh (P.W. 1) is admissible against the accused persons under proviso 2 of Section 33 of the Indian Evidence Act. His statement is corroborated regarding date, time and place of incident by the statement of Rajvir Singh (P.W. 2), though he turned hostile. From the statement of Rajvir Singh (P.W. 2), the presence of Ranvir Singh (P.W. 1) in the village is also established.

We also do not find any force in the submission of learned Counsel for the Appellants that co-accused Satya Prakash was not proceeded against by the police and by the trial court. During trial, Ranvir Singh (P.W. 1) was murdered, Rajvir Singh (P.W. 2) and Sudhir (P.W. 3) turned hostile. Thus, there was no occasion for the prosecution to move application u/s 319, Code of Criminal Procedure against Satya Prakash.

Regarding enmity, the learned Counsel for the Appellants submitted that the Appellants had no enmity with the deceased but had enmity with the Ranvir Singh (P.W. 1) who was involved in the murder of Bhanwar Singh, the father of the Appellant Sajendra and no incident took place between the parties after 1990. This submission is also without force. Trial in respect of murder of Bhanwar Singh was held against Ranvir Singh, his father Hoshiyarey and others but ended in acquittal in the year 1995. Since Hoshiyarey, the father of Ranvir Singh (P.W. 1) and deceased Raj Singh was an accused in the murder of father of the Appellant Sajendra, it can safely been inferred that the Appellants had a grudge against the whole family of Hoshiyarey. Raj Singh was the son and Arvind was the grandson of Hoshiyarey and thus the Appellants had sufficient motive to kill them.

The next submission on behalf of Appellants is that Ranvir Singh (P.W. 1) and Rajvir Singh (P.W. 2) did not reside in village Tigri, but lived at Mawana at a distance of about 5 km. from the village, had built their houses at Mawana, had no occasion to be at the place of incident and were merely chance witnesses. It was submitted that their presence at the time of incident was highly doubtful. We do not find any force in this submission also. Ranvir Singh (P.W. 1) and Rajvir Singh (P.W. 2) had built their houses at Mawana and were employed there but their agricultural lands were situated in village Tigri. Even the hostile witness Rajvir Singh (P.W. 2) stated in the cross-examination that on the date of incident, he was in the village and Ranvir Singh (P.W. 1) was also in the village. Thus, it is established that on the date of incident, Ranvir Singh (P.W. 1) and Rajvir Singh (P.W. 2) were not at Mawana but were in village Tigri where the incident took place and they cannot be said to be chance witnesses.

It was next submitted by learned Counsel for the Appellants that despite enmity, no attempt on the life of Ranvir Singh (P.W. 1) was made by the Appellants and he did not even receive any injury and did not try to save Raj Singh and Arvind. Therefore, his presence at the spot is doubtful. We do not find any force in this submission. The Appellants did not make an assault on Ranvir Singh (P.W. 1) because the Appellants might not have noticed his presence on spot and were preoccupied in killing Raj Singh and Arvind. Non-receipt of injuries by Ranvir Singh (P.W. 1) does not make his testimony or presence on the spot doubtful specially when Ranvir Singh (P.W. 1) was not cross-examined by learned defence counsel on this point. Without cross-examination, the testimony of Ranvir Singh (P.W. 1) remains uncontroverted and has got to be believed. Similarly no exception can be taken to the conduct of Ranvir Singh (P.W. 1) in not trying to save his brother Raj Singh and nephew Arvind as all the six accused including four Appellants were armed with deadly weapons. Had Ranvir Singh (P.W. 1) intervened and tried to save Raj Singh and Arvind, he would have also been killed. Thus, the conduct of Ranvir Singh (P.W. 1) cannot be said to be unnatural.

The next submission is that the F.I.R. was ante-timed, special report of the incident was not sent to the police higher authorities and the check report does not show any date below the signature of the Circle Officer. Reliance has been placed on Meharaj Singh (L/Nk.) Vs. State of U.P., in which it was held that there are certain checks to see whether the F.I.R. was ante-timed. One of the checks is/are the receipt of copy of the F.I.R. when a special report in a murder case is sent to the local Magistrate. If this report is received by the Magistrate late, it can give rise to the inference that the F.I.R. was not lodged at the time it is alleged to have been recorded. The second external check is to see whether copy of F.I.R. was sent alongwith dead body or not and it''s reference in the inquest report.

Check report Ka-5 reveals that below the signatures of the Circle Officer, no date is mentioned. The F.I.R. was received in the office of Chief Judicial Magistrate, Meerut on 1.5.1999 after a delay of seven days, but this delay alone cannot lead to an inference that F.I.R. was ante-timed. Original inquest report Ex. Ka-2 relating to Arvind Kumar reveals that copy of F.I.R. and copy of G.D. were Annexures-2 and 3 of the inquest report. Similarly inquest report of Raj Singh Ext. Ka-3 shows that copy of F.I.R. and copy of G.D. were annexed as Annexures-2 and 3 of the inquest report. Thus, it cannot be said that at the time of inquest, the F.I.R. was not in existence. Moreover Ranvir Singh (P.W. 1) was not cross-examined on this point. From the statement of hostile witness Rajvir Singh (P.W. 2), it is evident that F.I.R. was lodged by Ranvir Singh (P.W. 1) and the police came to the place of occurrence on the same day and prepared inquest memos of Arvind and Raj Singh which were signed by him. Even in the cross-examination, Rajvir Singh (P.W. 2) admitted that inquest memos of Raj Singh and Arvind were prepared in his presence and he had signed the same. He also admitted that F.I.R. was lodged by Ranvir Singh (P.W. 1) in his presence and he knew that Sajendra and others have been named in the F.I.R. He has further admitted in cross-examination that before inquest proceedings, he knew that F.I.R. had been lodged. No such suggestion was given by the learned Counsel for the accused to Rajvir Singh (P.W. 2) that F.I.R. was not lodged before the inquest proceedings. Thus, there is enough oral and documentary evidence to show that F.I.R. was not ante-timed but was lodged at the time shown in the check report and general diary.

Learned Counsel for the Appellants criticised the conduct of the Investigating Officer, K.N. Singh (P.W. 6) that he proceeded towards the place of occurrence from Moharram procession without going to the police station and without taking inquest book and copy of F.I.R. and G.D. with him. Such criticism is unwarranted. P.W. 6 has specifically stated in his statement that copy of F.I.R. and general diary and the case diary were given to him by S.S.I. Sunder Singh Dukhtal on spot. There was nothing wrong in the conduct of Investigating Officer in directly proceeding towards the place of occurrence.

It was next submitted that Appellants belonged to different families and there was no common ground amongst them to commit the crime. It was further submitted that only partisan and interested witnesses were examined at the trial and independent witnesses of the locality have not been examined by the prosecution. No doubt that Ranvir Singh (P.W. 1) is the brother and Rajvir Singh (P.W. 2) is the cousin of deceased Raj Singh, but mere relationship with the deceased is not a sufficient ground to discard their testimony more so when Ranvir Singh (P.W. 1) was not cross-examined by the defence despite opportunity being given. When double murder was committed by the Appellants in broad-day-light in the village in a daring manner, independent witnesses could hardly dare to come forward to give evidence. Even the related and interested witnesses were not spared. Ranvir Singh (P.W. 1) was murdered during trial and out of fear Rajvir Singh (P.W. 2) and Sudhir (P.W. 3) turned hostile. In such circumstances, the absence of independent witnesses is of no consequence.

It was further submitted that as per the statement of Rajvir Singh (P.W. 2), the place of occurrence is towards North of the village whereas the fields of the informant is in the south and therefore, presence of Ranvir Singh (P.W. 1) at the place of occurrence is highly doubtful. Such statement was given by Rajvir Singh (P.W. 2) in his cross-examination after he turned hostile and can hardly be believed. There is no material to show that the place of occurrence is towards North of the village whereas fields of the informant are in the South. No such question was put to the Investigating Officer. Needless to repeat that no such question was asked from Ranvir Singh (P.W. 1). Therefore, this submission cannot be accepted.

The last submission of the Appellants is that Raj Singh was surrounded by the Appellants and fired at but all the injuries on his body are on left side. Arvind was shot at by three persons, but sustained only two gun-shot wounds of entry and there was no explanation for the three abrasions found on his body. We are not impressed by this argument. Arvind sustained only two gun-shot wounds of entry. This fact does not falsify the prosecution version that three accused fired at him. It is possible that fire of one of the accused might not have hit him. It has also come in evidence that Raj Singh left the motorcycle and ran away towards his house, but was chased by the Appellants and surrounded in-front of house of Jal Singh. Thereafter, Appellants fired at him causing his death. Surrounding Raj Singh is one thing while firing at him is another. It cannot be inferred that Raj Singh was fired at from all sides. After a person is surrounded and is unable to run away, he can be fired at only from one side otherwise cross-fire may hit the assailants themselves. There is nothing unnatural in the injuries of Raj Singh being on left side only. Arvind might have sustained abrasions in falling down. The absence of any explanation for abrasions found on the dead body of Arvind is of no consequence.

From the above discussion, we have come to the conclusion that statement of Ranvir Singh (P.W. 1) is admissible against the Appellants even without cross-examination u/s 33 proviso 2 of Indian Evidence Act as the Appellants were provided sufficient opportunity to cross-examine him, but he was not deliberately cross-examined by the learned Counsel for the accused persons. There is no reason to disbelieve his statement. The statement of Rajvir Singh (P.W. 2) is supported in material particulars like date, time and place of incident by the statement of hostile witness Rajvir Singh (P.W. 2) who also admitted the presence of Ranvir Singh (P.W. 1) in the village soon after the occurrence. The statement of Rajvir Singh (P.W. 2) further proves that F.I.R. was lodged by Ranvir Singh (P.W. 1) before the inquest proceedings were held and was not ante-timed. The incident took place at 5.30 p.m. and the F.I.R. was promptly lodged at 6.40 p.m. Prompt F.I.R. and medical evidence supports the statement of Ranvir Singh (P.W. 1).

It is thus, proved beyond any shadow of doubt that the Appellants alongwith Robin, armed with deadly weapons, formed an unlawful assembly and the members of such unlawful assembly in prosecution of the common object of that assembly, committed murders of Raj Singh and Arvind and thereby committed the offences punishable under Sections 148 and 302/149, I.P.C.

In our considered opinion, the prosecution fully established its case against the Appellants beyond any shadow of doubt and learned trial Judge has rightly convicted and sentenced the Appellants and there is no infirmity in the judgment passed by the trial court.

For the aforesaid reasons, we do not find any merit in this appeal which is liable to be dismissed.

The criminal appeal is dismissed. The conviction and sentence of the Appellants/accuseds Sajendra, Yogendra alias Toni, Sanjay and Santoo under Sections 148 and 302/149, I.P.C. is affirmed. All the four Appellants are undergoing sentence in jail. They shall be kept there to serve out the remaining sentence awarded by the trial court.

Office is directed to return trial court record expeditiously alongwith copy of this judgment.