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2013 DIGILAW 658 (ALL)

HARENDER v. STATE OF U. P.

2013-02-27

ANIL KUMAR SHARMA, RAKESH TIWARI

body2013
Rakesh Tiwari, J. Heard Sri V.P. Gupta, Amicus Curiae, Sri V.P. Srivastava, Senior Advocate assisted by Sri P.K. Srivastava, Advocate, Sri Gaurav Singh, Advocate holding brief of Sri Apul Misra, Advocate, for the appellants, Sri J.S. Sengar, Advocate and Sri S.A. Murtaza, AGA for the complainant and State in the aforesaid Criminal Appeals, Criminal Revision and Government Appeal and perused the record. The appellants have challenged the validity and correctness of the judgment and order dated 20.9.2002 passed by the Additional Sessions Judge ( Fast Track ) Court No. 16, Bulandshahr in S.T. No. 740 of 2001, State versus Chandra Pal and others on the ground that it is against the weight of evidence on record; that it is against the law and facts of the case and sentence awarded is too excessive in this case. In Criminal Revision No. 1636 of 2001, the revisionist has challenged the judgment dated 17.5.2001, whereby his appeal against the order dated 21.3.2001 passed by Juvenile Magistrate rejecting his bail on the ground of juvenility had been dismissed. The prosecution case in brief is that Smt. Ravindri wife of Jai Singh r/o Laxman Garhi P.S. Sikandrabad submitted a written report dated 3.11.2000 written by Yashpal Singh son of Sher Singh resident of village Akbarpur Raina P.S. Agauta, District Bulandshahr at P.S. Sikandrabad interalia stating that she is the resident of village Laxman Garhi, P.S. Sikandrabad, District Bulandshahr. There was litigation with regard to their land in the village with Jagbiri wife of Jagpal and others, who are also residents of same village Laxman Garhi; that about 11 months earlier Jagpal husband of Jagbiri and her son Satpal were killed in which the names of Ravindri and her family members were implicated due to enmity and since then family members of Jagbiri wanted to take revenge. For this purpose she along with Suman and Bittoo sons of Jagpal had made an alliance with some other persons of the village; that on 3rd November, 2000 in the morning Jagpal son of Dilip was killed by some unknown persons on the road at far away distance from the village. On this Suman and Bittoo sons of Jagpal, Harendra son of Harkesh, Ravindra son of Giriraj, Chandrapal son of Dilip and Narendra son of Brahma armed with lathi, Farsa and country made pistol etc. On this Suman and Bittoo sons of Jagpal, Harendra son of Harkesh, Ravindra son of Giriraj, Chandrapal son of Dilip and Narendra son of Brahma armed with lathi, Farsa and country made pistol etc. came in the 'Gher' of complainant Ravindri where her Devrani Sundri wife of Autar was working and her two children Km. Laxmi a 4 years and son Kartik alias Chhotu a 2 years were playing. After killing them they entered the house of the complainant where they again killed Smt. Rajbiri wife of Kalicharan, the mother-in-law of the complainant. On hearing the noise, complainant Ravindri, Naresh daughter of Kalicharan, Omveer and Dharmvir sons of Meer Singh, Ajab Singh son of Ram Das, Sudesh wife of Omvir, Pawan and Vikas sons of Omvir Singh came to the spot and on seeing the incident made hue and cry. The accused-appellants then ran away from the place of occurrence saying that four ( 4) have been killed today and family of Kailcharan would be done away on some other day. On the basis of written report after making G.D. entry FIR was registered at case crime no. 666A/2000 under Sections 147,148,452, 302,and 34 IPC against accused persons on 3.11.2000 at about 15.10 hours showing the distance of place of occurrence from the police station as 13 kms. in the north direction as appears from the FIR. The investigation of the case was taken over by SHO V.K. Bhardwaj. He interrogated the complainant and prepared site plan at her instance. The I.O. collected the blood stained and plain earth on 3.11.2000 itself from where the bodies of the deceased persons were lying who prepared recovery memos whereof. Recovery memo of pieces of bricks recovered from the spot were also made on which blood was found. These samples of blood stained and plain earth and blood stained bricks were proved as exhibit nos. Ex.Ka-27 to Ex.Ka-33 before the court below. He instructed S.I. Anil Madhukar to conduct inquest on the cadaver of all the deceased. After inquest their dead bodies were sent for post mortem examination along with usual papers in sealed condition. On 4.11.2000 accused Harendra and Chandrapal were arrested.Three persons namely, Suman, Ravindra and Bittoo were arrested by the police on the information of the informer on 6.11.2000 at 20.10 hours. After inquest their dead bodies were sent for post mortem examination along with usual papers in sealed condition. On 4.11.2000 accused Harendra and Chandrapal were arrested.Three persons namely, Suman, Ravindra and Bittoo were arrested by the police on the information of the informer on 6.11.2000 at 20.10 hours. Accused Suman admitted using of Farsa in the murder of the family of Kalicharan and volunteered to get it recovered where he had hidden it. Similarly, accused Ravindra also said to get the lathi recovered in the aforesaid crime whereas accused Bittoo stated that he had taken the country made pistol used in the crime for killing Sundri before the incident from Harendra son of Harkesh of village Laxman Garhi and while running away from the scene of crime he had returned it to Ajai Pal brother of Harkesh. Thereafter on the pointing out of the aforesaid accused persons the Farsa and lathi used in the incident for doing away with the family members of Kalicharan were recovered. Accused Narendra Singh during police remand on 17.11.2000 also got recovered a lathi used in the said crime in the presence of witnesses Rajendra son of Lakhpat Singh and Ravindra Singh son of Ajab Singh resident of village Laxman Garhi. This lathi was got recovered by Narendra from the sugar cane field at a distance of about a furlong outside the village. The post mortem examination on the cadaver of deceased Smt. Sundari, Smt. Rajbiri,Kartik alias Smta and Km. Laxmi was conducted on 4.11.2000 at 3.30 P.M., 4.00 P.M.,4.30 P.M. and 5.00 P.M. respectively. The Doctor in the post mortem report no. 582/2000 of Sundri wife of Autar alias Pappu has reported that her probable age was about 26 years and she had died about a day earlier. The external examination of the body showed that rigour mortis was present. Following ante-mortem injuries were found on the cadaver of deceased Sundri. 1.Firearm wound of entrance 2 cm. x 1.5 cm. x bone deep on right side of face. 3 cm. proximal from right ear. 2.Firearm wound of exit 4 cm. x 2 cm. x bone deep on left side of head 0.5 cm. above left ear. Injury no.2 is communicating with injury no.1. 3.Lacerated wound 3 cm. x 2 cm. x bone deep & bone fractured on right side of forehead 3 cm. above right eye brow. 3 cm. proximal from right ear. 2.Firearm wound of exit 4 cm. x 2 cm. x bone deep on left side of head 0.5 cm. above left ear. Injury no.2 is communicating with injury no.1. 3.Lacerated wound 3 cm. x 2 cm. x bone deep & bone fractured on right side of forehead 3 cm. above right eye brow. 4.Reddish contusion ( multiple) on back of whole of the right upper & right forearm in an area 60 cm.x 7 cm. 5.Reddish contusion with swelling 10 cm. x all around in left upper arm in upper 1/3rd region with # of left humerus bone. The internal examination of the body showed that frontal scalp and both temporo parietal bones were fractured. Stomach was found empty. Small intestine contained semi-digested food and in large intestine faecal matters were found. Membranes and Brain were found lacerated. In the opinion of the Doctor cause of death was due to coma and ante-mortem injuries. In the post mortem report no. 583 of 2000 of Rajberi wife of Kalicharan the Doctor has reported that she was aged about 45 years. She had died about a day earlier. The external examination of the body showed that rigour mortis was present and bleeding from both ear was present. Following ante mortem injuries were found on her person. 1.Lacerated wound 12 cm. x 7 cm. x bone deep with bone fracture & brain deep on right side of forehead just above right eye-brow. 2.Abrasion 4 cm. x 2 cm. in front of chest on right side of body of sternum soft scabbed. 3.Abrasion 2 cm. x 1 cm. in front of right shoulder soft scabbed. In internal examination of the body the doctor found that frontal bone of scalp was fractured. Membranes & Brain were found lacerated and stomach empty. The small and large intestines contained semi-digested food and faecal matter with gases. In the opinion of the Doctor the cause of death was due to coma and ante mortem injuries mentioned above. The Doctor in the post mortem report no.581 of 2000 of Kartik alias Smta has reported that probable age of the deceased was about 4 years who had died about a day earlier. The external examination of the body showed that rigour mortis was present. Following ante-mortem injuries were reported by the doctor. 1.Lacerated wound 3 cm. x 2 cm. The Doctor in the post mortem report no.581 of 2000 of Kartik alias Smta has reported that probable age of the deceased was about 4 years who had died about a day earlier. The external examination of the body showed that rigour mortis was present. Following ante-mortem injuries were reported by the doctor. 1.Lacerated wound 3 cm. x 2 cm. x bone deep & bone # on right side of head. 4 cm. above right ear. 2.Abrasion 3 cm. x 2 cm. on right side of chest in upper part. 3.Multiple reddish contusion on whole of the back of chest & abdomen in an area 30cm. x 12 cm. The internal examination of the body showed that both temporo parietal bones were fractured. Membranes and Brain were found lacerated. Stomach contained 50 ML watery food. The small and large intestines contained semi-digested food and faecal matter with gases respectively. In the opinion of the Doctor the cause of death was due to coma and ante mortem injuries mentioned above. The Doctor has reported similarly in the post mortem report no. 580/2000 of Km. Laxmi daughter of Autar allias Pappu that her probable age was 6 years and she had died about one day earlier. The external examination of the body showed that rigour mortis was present. Following ante-mortem injuries were found on her body. 1.Traumatic swelling 5 cm. x 2 cm. on left side of head 3 cm. above left ear. 2.Reddish contusion ( multiple) present on whole of the back of chest & abdomen in an area 40 cm. x 17 cm. The internal examination of the body showed that both temporo parietal bones were found fractured. Membranes and Brain were found lacerated. Stomach was found empty. The small and large intestines contained semi-digested food and faecal matter with gases. In the opinion of the Doctor the cause of death was due to coma and ante mortem injuries. The clothes on the bodies of the deceased and other items recovered from inside their bodies as well as recovered arms were sent to the Forensic Science Laboratory, Agra, U.P. Items sent to the FSL and the result of their examination read thus:- @ Hindi @ On conclusion of the investigation chargesheet was submitted in the Court of C.J.M., Bulandshahr, who committed the case to the court of Session where it was registered as S.T. No. 740 of 2001. The trial Court framed charges under Sections 147, 148, 452 and 302 IPC read with Section 149 IPC against accused-appellants Chandra Pal, Harendra, Suman, Bittoo, Ravindra and Narendra to which they pleaded not guilty and claimed to be tried. The prosecution produced six witnesses in support of its case namely, Ravindri, P.W.1, Naresh, P.W.2, Dr. Omkar Singh Tomar, P.W.3, Head Constable Mohd. Akbar, P.W. 4, Inspector V.K. Bhardwaj, P.W.5 and Head Constable Udai Raj Singh, P.W.6 .Accused persons Chandra Pal, Harendra, Suman, Bittoo, Ravindra and Narendra were examined under Section 313 Cr.P.C. They also produced Narendra Singh as D.W.1 in support of their case. Accused Chandra Pal and Harendra claimed alibi stating that on 3rd November, 2000 they had gone to police station Sikandrabad wth Harendra for lodging the report of murder of his brother Jagpal. The written report in that case had been scribed by Harendra and at the time of alleged incident they were in fact with the I.O. showing him the place of occurrence where his brother Jagpal had been killed. Accused Ravindra stated that deceased Jagpal was his uncle whereas accused Bittoo stated that Jagpal was his father. Both of them claimed to have been falsely implicated in the case by the family members of Kali Charan due to enmity. Lastly, D.W.1, Narendra Singh son of Amar Singh resident of mohalla Vishwas Nagar, colony, Sahani road, District Ghaziabad admitted that accused Chandra Pal was his 'Sadu'. He had seen the "Gher" and room in which the family members of Kalicharan had been killed which are not visible from the road. In his cross-examination he has stated that he is in army and that he is not an accused in this case but is related to the accused persons. He has also described the house and other places near the place of incident and submitted a map. After hearing learned counsel for the parties and on appreciation of oral and documentary evidence on record the trial Court vide the impugned judgment and order dated 20.9.2002 in S.T. No. 740 of 2001, State versus Chandra Pal and others, convicted and sentenced the accused-appellants Harendra, Chandra Pal, Bittoo, Narendra and Ravindra under Sections 148, 452 and 302 read with Section 149 IPC to undergo 2 years RI, 3 years RI with a fine of Rs.500/- and imprisonment for life and fine of Rs. 5,000/- respectively. 5,000/- respectively. The order further provides that in default of payment of fine the aforesaid appellant to further undergo 6 months SI and one year's SI . All the sentences were directed to run concurrently. However, the court below has acquitted accused Suman from the charges under Sections 148,452, and 302 read with Section 149 IPC giving him benefit of doubt. It may be stated here that Criminal Revision no. 1636 of 2001 under Section 38 of Juvenile Justice Act was filed by accused-appellant Bittoo alias Brijesh Kumar son of Jagpal Singh against the order dated 17.5.2001 passed by the Sessions Judge, Bulandshahr in Criminal Appeal No. 16 of 2001 whereby dismissing the appeal and upholding the order dated 21.3.2001 passed by the Juvenile Court/Ist Addl. C.J.M. Bulanshahr under Section 18 /32 Juvenile Justice Act in case crime no. 666-A of 2000, under Sections 147,148,452,504,506 and 302 read with Section 149 IPC. P.S. Sikandrabad rejecting the bail application dated 25.1.2001 of the revisionist and holding him not to be a juvenile under the Act. The order and judgment was challenged in criminal appeal no. 4456 of 2002 by appellants Harendra, Chandra Pal and Narendra, who are in jail. Criminal Appeal no. 4879 of 2002 has been filed by appellant Ravindra and Criminal Appeal No. 4830 of 2002 has been filed by appellant Bittoo alias Brijesh Kumar, who are also in jail whereas Government Criminal Appeal No. 326 of 2003, State versus Suman son of Jagpal has been filed by the AGA against impugned judgment and order dated 20.9.2002 whereby accused Suman has been acquitted from the charges under Sections 148,452 and 302 read with Section 149 IPC. Learned counsel for the appellants has raised the following points for our consideration. 1.None of the witnesses of the prosecution were present at the time of occurrence ; 2.The post mortem examination report does not support the prosecution story; 3.The FIR is ante-timed; and 4.that the inquest was done first and FIR was lodged thereafter. It is submitted by Sri V.P. Srivastava, learned Senior counsel that Ravindri wife of Jai Singh resident of village Laxman Garh is the complainant. The date of occurrence is 3.11.2000 at 12.00 noon whereas the FIR has been lodged on the same day at about 15.10 hours. The accused-appellants in the aforesaid criminal appeals are five in numbers namely, Harendra, Chandrapal, Bittoo, Narendra and Ravindra. The date of occurrence is 3.11.2000 at 12.00 noon whereas the FIR has been lodged on the same day at about 15.10 hours. The accused-appellants in the aforesaid criminal appeals are five in numbers namely, Harendra, Chandrapal, Bittoo, Narendra and Ravindra. They are residents of village Laxman Garhi, P.S. Sinkandrabad, District Bulandshahr, who have been falsely implicated in case crime no.666A/2000, under Sections 147,148,452 and 302 read with Section 149 IPC. It is stated that had any of the witnesses nominated in the FIR would have been present at the date, place and time of occurrence, they would also have been done away with, thereafter their presence at the place of occurrence is highly doubtful; that accused Chandrapal, who is said to have given information about the murder of Jagpal was in fact in the police station and his signatures and presence are confirmed with the I.O. at 12.00 noon. He has then referred to the post mortem report as well as the statement of P.W.1, Ravindri and submits that she in her statement says that she had been fired upon by accused Bittoo and rest had been beaten by lathi. He further argues as to whether this witness could be present at both places at the house and Gher where murder took place and the place where she claims to see the incident. It is stated that if not she could not have an eye witness to the incident. In this regard he has also sought support from the site plan stating the manner in which the incident is said to have taken place, could not have been carried out. He submits that from perusal of the statement of P.W.1 it is quite clear that her statement is not supported by the site plan and the medical report, rather she could not have been an eye witness of the incident and had she been present with others, they would also have been eliminated. In fact, the aforesaid statement by P.W.1, on the basis of which the accused persons have been convicted is an improvement. Regarding FIR being ante-timed, learned counsel for the appellants has relied upon the cross-examination of P.W.5, V.K. Bhardwaj that on information received by him at the police station in case crime no. In fact, the aforesaid statement by P.W.1, on the basis of which the accused persons have been convicted is an improvement. Regarding FIR being ante-timed, learned counsel for the appellants has relied upon the cross-examination of P.W.5, V.K. Bhardwaj that on information received by him at the police station in case crime no. 666A/2000 on RT set that two women and two minor children have been killed in the house of Kalicharan in village Laxman Garhi,he went there and on lodging of the FIR started the investigation. He narrated the arrest of the accused and the recovery of the arms. In his cross-examination he has stated thus:- @ Hindi @ It is then submitted that investigation by the I.O. is shabby. He has not carried out the investigation properly and has left loop-holes for improvement by the prosecution witnesses. He also submits that when the I.O. had reached at the place of occurrence Naresh had not met him in the village on 4th November, 2000 but she had met him on 5th and that he had not gone to the village on 4th. therefore, there is no question of taking evidence of Naresh, P.W.2 wife of Yashpal Singh. According to him, the blood stained exhibits sent for test were also implanted by the police and all this shows that the accused persons were not at all involved in the incident said to have been committed by them. Per contra, learned AGA submits that two incidents had taken place on 3.11.2000,one in which Jagpal son of Dilip was murdered in the morning in an agricultural field at about 1 km. away from the village in which sugar cane had grown near chak road and the other in the house of Kalicharan in which two women and two minor children were killed. The accused persons were witnessed by P.W.1 committing the murder from behind the iron bars from where they could in fact see the incident but were not seen by the assailants. It is only when a number of people had gathered and they made a hue and cry that the accused ran away and that the villagers were terrified because of the aforesaid incident. It is only when a number of people had gathered and they made a hue and cry that the accused ran away and that the villagers were terrified because of the aforesaid incident. The plea of alibi claimed by Narendra and Chandrapal is shattered as the G.D. entry shows that the I.O. was at the police station when complainant Ravindri wife of Jai Singh was there for lodging of the FIR and had come with her written report. Sri V.P. Gupta, Advocate has placed reliance upon the FIR and submits that the weapons have been named but it is silent on the role of accused said to have been carrying lathi, Farsa and country made pistol. Accused Chandrapal and Harendra are said to have assaulted with bricks and stone. It is stated that till framing of the charge, there was no improvement but later on it has been made by the prosecution. In this regard he has referred to the statement of accused Chandrapal under Section 313 Cr.P.C. wherein in reply to the question as to whether he has anything to say Chandrapal answered that on 3.11.2000 he had gone to the police station to lodge the FIR of the murder of his brother Master Jagpal which was written by Harendra and at the time of incident he along with Harendra were showing the place of occurrence where Master Jagpal was killed. He then emphatically argued that accused Narendra in his statement under Section 313 Cr.P.C. has clearly stated that he has no enmity with the family of Kalicharan. Sri Gaurav Singh, Advocate holding brief of Sri Apul Mishra, learned counsel for the appellant Bittoo alias Brijesh Kumar at the outset adopted the argument of Sri V.P. Srivastava. He then placed the judgment in Criminal Revision No. 1636 of 2001 submitting that Bittoo was a juvenile at the time of occurrence and prayed for being tried accordingly. He has also relied upon paragraph 14 of the judgment rendered in ( 2012) 9 SCC-750 Ashwani Kumar Saxena versus State of Madhya Pradesh. decided on 13.9.2012 by the Bench consisting of Hon. K.S. P. Radhkrishnan and Madan B. Lokur, J.J. as well as Rule 12 of the Juvenile Justice ( Care and Protection of Children) Rules in this regard. He has also relied upon paragraph 14 of the judgment rendered in ( 2012) 9 SCC-750 Ashwani Kumar Saxena versus State of Madhya Pradesh. decided on 13.9.2012 by the Bench consisting of Hon. K.S. P. Radhkrishnan and Madan B. Lokur, J.J. as well as Rule 12 of the Juvenile Justice ( Care and Protection of Children) Rules in this regard. Upon hearing learned counsel for the parties and on perusal of the record it is apparent that information was received by the I.O. on RT set at Nahar when he was in jungle investigating the murder case of Jagpal. Upon receiving the information he had gone to village Laxman Garhi where he had read the chick report and started the investigation. It is not the case of the accused that he had accompanied the I.O. to village Laxman Garhi. Therefore, the suggestion of the counsel that site plan was prepared at the police station appears to be incorrect. As regards reliance placed by the learned counsel for the appellants upon the cross-examination of P.W.5, it is sufficient to say that to controvert the statement under Section 313 Cr.P.C. the I.O. of the case and the defence as well as witness of particular fact has to be confronted with question about any alleged irregularity or illegality before any advantage of it can be taken by the accused-appellants which has not been done in this case. It is apparent from the reading of the cross-examination of P.W.5 that Naresh had met him on way on 3.11.2000. It is apparent that two incidents had taken place, one in the morning in which master Jagpal was killed whose body was found in the agricultural field near the chak road at a distance of about 1 km. from the village in which sugarcane had grown and the second incident took place at about 12.00 noon in the house of Kalicharan in which two women and two minor children were killed. The police station is about 13 kms. from the place of occurrence. In such a circumstance where four persons of the family have been done away with by a number of persons armed with various weapons, the FIR being lodged at about 3.10 P.M. cannot be said to be delayed or even ante-timed particularly when this was flashed on R.T.set. The police station is about 13 kms. from the place of occurrence. In such a circumstance where four persons of the family have been done away with by a number of persons armed with various weapons, the FIR being lodged at about 3.10 P.M. cannot be said to be delayed or even ante-timed particularly when this was flashed on R.T.set. It has come on record that the I.O. received information on RT set when he was investigating the case of murder of Jagpal at a distance of about 1 km. from the place of occurrence where family members of Kalicharan had been killed. He had gone to the place of occurrence to investigate the matter, there he had read the chick report and started the investigation in the matter. The atmosphere of the village was charged and people were afraid. The Senior Police officials had also come at the scene of occurrence. Therefore, it cannot be presumed in the facts and circumstances stated earlier that the FIR would have been lodged with delay, or that the inquest was done first and FIR was lodged thereafter. Rather police would be working with zeal and energy to investigate the case and arrest the accused persons. As regards motive is concerned, from plain reading of the FIR and the statement of P.W. 1 it is apparent that the complainant and the accused belong to the same village Laxman Garhi. It is apparent from the statement of P.W.1 that there is litigation between the family members of both sides with regard to the land in the village as well as with regard to killing of Satpal in which Ravindri and her family members were implicated. In her words she stated- @ Hindi @ Enmity thus, is apparent from the face of record. Jagbiri wanted to take revenge. It also appears that in the morning body of Jagpal was found about 1 km. away from the village. The feeling of revenge could easily come out from the heart in the circumstances. The manner of assault of killing two children and two ladies shows that the accused wanted to pent-out their feeling. If the accused had not committed offence in the manner as alleged by the prosecution, they would not have tried to spin a story about their alibi, which as stated earlier, is disbelieved. The manner of assault of killing two children and two ladies shows that the accused wanted to pent-out their feeling. If the accused had not committed offence in the manner as alleged by the prosecution, they would not have tried to spin a story about their alibi, which as stated earlier, is disbelieved. Moreover, the manner of assault in the incident had been described in detail by the prosecution witness Smt. Ravindri, P.W.1 thus:- Hindi @ Reference in this regard be made to the following excerpt of the cross-examination of P.W.1. @ Hindi @ P.W.2, Naresh wife of Yashpal has also supported and corroborated the statement of P.W.1 that the incident was of 3rd of the month. The incident had taken place at about 12.00 noon after the murder of Jagpal by some unknown persons. She also gave the details of manner of assault by each of the assailants in the incident thus:- @ Hindi @ In her cross-examination she stated that the accused persons harboured enmity due to land dispute with them, who wanted to forcibly occupy their 'Gher' and used it as door which could have benefited them and that there were two houses between 'Gher' and their house and that she had seen the incident from the iron-bars fixed in the Dukadia of the house of Ajab Singh. Both eye-witnesses, P.W.1 and P.W.2 have stood the test of cross-examination but nothing could be elicited-out from their testimony by the appellants which could have benefited them. They have recognized the accused persons who were of the same village as such there is no question of mis-identification. The complainant and others could not be done away with as they were not at the spot where the incident was taking place but they had hidden themselves at a safe distance from where they could see the incident and the assailants. On hue and cry of the villagers and the noise of the firearms report they all came towards the spot but the accused-appellants seeing a number of persons coming at them ran away exhorting to kill other member of the family of Kalicharan on some other day. From the aforesaid statement of P.W.1 it is clearly proved that P.W.1 and P.W.2 were eye-witnesses of the incident, who were hidden from the eyes of the assailants. The post mortem report fully supports the prosecution story. From the aforesaid statement of P.W.1 it is clearly proved that P.W.1 and P.W.2 were eye-witnesses of the incident, who were hidden from the eyes of the assailants. The post mortem report fully supports the prosecution story. The injuries on the bodies of the deceased corroborates with the post mortem report of Sundri, Rajbiri, Kartik alias Smta and Km. Laxmi and moreover, the arms used in the crime have been recovered from the accused persons on their pointing out in presence of independent witnesses which certainly is not an implant by the police for falsely implicate them. Therefore, the trial Court has not committed any illegality in convicting and sentencing the accused-appellants. Accordingly, we uphold the judgment and order of the court below. Bittoo alias Brijesh Kumar has filed an application under Section 18 of the Juvenile Justice Act, claiming himself to be a juvenile. Learned Magistrate after getting a report from the Chief Medical Officer on radiological examination came to the conclusion that Bittoo alias Brijesh Kumar was about 19 years of age and therefore, rejected his bail application. He thereafter filed Criminal Appeal No. 11 of 2001, which was allowed and the matter remanded for fresh disposal of the application under Section 18 of the Juvenile Justice Act afresh after providing an opportunity of evidence to the appellant therein. Thereafter, accused Bittoo alias Brijesh Kumar was heard again and opportunity to adduce evidence was given and by order dated 21.3.2001, the Juvenile Magistrate while deciding the bail application of the applicant-appellant held thus:- @ Hindi @ We therefore, find that the plea of juvenility has been turned down by Principal Magistrate Juvenile Court by giving cogent reasons. The accused did not prove his date of birth by examining the Principal or Head Master of the School he first attended. In criminal appeal no. 16 of 2001, the appellate Court has affirmed the above findings, therefore, we do not find any legal fault in the judgment and order dated 17.5.2001 against which criminal revision no. 1636 of 2001 has been filed and it is liable to be dismissed. The trial Court had acquitted accused Suman on the ground that he is said to have armed with 'Farsa' but there was no injury of 'Farsa' on any bodies of the deceased. 1636 of 2001 has been filed and it is liable to be dismissed. The trial Court had acquitted accused Suman on the ground that he is said to have armed with 'Farsa' but there was no injury of 'Farsa' on any bodies of the deceased. The trial Court found that accused Suman was falsely implicated in the case and he was entitled to the benefit of doubt on this ground. However, Government Appeal No. 326 of 2003 was preferred on the ground that the judgment and order dated 20.9.2002 is against the law and is liable to be set aside for the reason that Ravindri, P.W.1 in her cross-examination before the trial Court stated that accused Suman had used the 'Farsa' and no injury was caused by him from blade of the 'Farsa'. According to the learned AGA and learned counsel for the complainant, the role of accused Suman, who has been nominated in the FIR is clear. Ravindri, P.W.1 had seen accused Suman at the place of occurrence and, therefore, the judgment and order passed by the trial Court acquitting accused Suman only on the ground that there is doubt of his presence at the spot because no injury was caused to any of the deceased by 'Farsa', can not be sustained. We have considered the arguments of learned counsel for the parties but we do not find any force therein that accused Suman had participated in the incident. If he was found near the place of occurrence with 'Farsa' and has not used it at all then it cannot be said that he shared common object along with other co-accused to eliminate as many as four family members of the complainant. His case is quite distinguishable from other co-accused, so, he was rightly given benefit of doubt by the trial Court. The Government appeal challenging his acquittal has no force. For the reasons stated above, Criminal Appeal no. 4456 of 2002 ( Harendra and two others versus State of U.P.), Criminal Appeal No. 4879 of 2002 ( Ravindra versus State of U.P.), Criminal Appeal No. 4830 of 2002 ( Bittoo alias Brijesh versus State of U.P.) Criminal Revision No. 1636 of 2001 ( Bittoo alias Brijesh Kumar versus State of U.P. and Government Appeal No. 326 of 2003 ( State of U.P. versus Suman son of Jagpal) are dismissed. Appellants Harendra, Chandra Pal, Narendra, Ravindra and Bittoo alias Brijesh are in jail. They shall serve out the sentence awarded by the trial Court. Let a certified copy of this judgment be sent to the court concerned for its immediate compliance which should be reported to this Court within two months from today.