R. C. Lahoti, J. - (1.)Ram Swarup, Raja Ram, Babu Ram, Deshraj and Dularey Prasad, the five accused persons were tried on charges under Sections 302/149, 148 and 147, IPC. The trial Court convicted Ram Swarup and Raja Ram for the offences under Sections 148 and 302/149, IPC and sentenced them to suffer two years rigorous imprisonment and imprisonment for life respectively. Babu Ram, Deshraj and Dularey were convicted under Sections147 and 302/149 of IPC and sentenced respectively to one year's rigorous imprisonment and imprisonment for life. All the accused persons preferred an appeal before the High Court. The High Court has held the accused Dularey not to have participated in the incident at all and therefore there was no unlawful assembly of the accused persons. Accordingly, Dularey Prasad has been completely exonerated and acquitted. The conviction of all other accused persons insofar as referable to Sections 147, 148 and 302/149 IPC has been set aside. Instead Ram Swarup, Raja Ram, Babu Ram, Deshraj have been held guilty of an offence punishable under Section 302/34 of IPC and sentenced to imprisonment for life each. Feeling aggrieved by their conviction as ordered by the High Court, the accused Babu Ram and Deshraj have preferred Criminal Appeal No. 255/2001 and Ram Swarup and Raja Ram have preferred Criminal Appeal No. 256/2001, both by special leave.
(2.)The occurrence took place on 14-3-1980 at about 12.30 p.m. on the outskirts of village Baburahi, P.S. Shahabad, District Hardoi of Uttar Pradesh, Shri Krishna, PW 1 is the brother of late Mangali who died in the occurrence. It appears that tubewell operator Ram Autar (not examined) and Asharfi Lal, Tubewell Amin, PW 3, accompanied by villagers Ram Pal, Shri Krishna and Mangali were taking a round of the village fields for making a survey of such fields as were irrigated from the tubewell in that season so as to make record of the same and levy irrigation charges. When they reached the field of accused Ram Swarup Mangali said that Ram Swarup's fields have been irrigated by tubewell whereas Ram Swarup denied the same. Other accused-appellants were present. Accused Deshraj and Babu Ram were armed with lathis. The deceased Mangali also had a lathi with him. The accused Ram Swarup and Raja Ram had licensed guns with them. On Ram Swarup accused vehemently denying his fields having been irrigated, a verbal exchange followed by hot words ensued between late Mangali and accused Ram Swarup. Dularey exhorted the accused persons whereupon appellant Deshraj and Babu Ram dealt lathi blows on Mangali. Mangali too wielded his lathi in his defence. Ram Autar and Asharfi Lal, PW 3 being public servants and obviously not interested in involving themselves in the fued between the private parties thought it better to slip away from the scene and did so. Shri Krishna, PW 1 tried to intervene and pacify the parties engaged in altercation. At this point of time appellants Ram Swarup and Raja Ram opened fire with their respective guns aiming at Mangali. Mangali sustained a fire arm injury and fell down. He died on the spot. The dead body was then removed by the villagers to the village.
(3.)Shri Krishna, PW 1 lodged first information report of the incident at about 2.20 p.m. at police station, Shahabad situated at a distance of little more than two miles from the village. The report was registered by Om Hari Sharma, Sub-Inspector present at the police station. He registered a cognizable offence and commenced investigation. The dead body of the deceased was referred for post mortem examination which was performed by Dr. U.D. Kapoor, PW 5 on 15-3-1980 at 1 p.m. The following injuries were found on the body of the deceased :
1. Fire arm wound of entry :- of the size of 2.5 cm x 2.5 x cranial cavity deep, on the left side of forehead, 2 cm above the outer end of left eye brow, margins of the wound are lacerated and inverted. Blackening charring present.

2. One firearm wound of exit 4.5 x 3.5 cm x margin are irregular and everted. This wound is communicating with the wound of entry No. (1). The skull bone broken into pieces are visible both from entry and exit wounds.

3. Contusion, 6 cm x 2 cm on the Rt. side of face middle part, just in front of Rt. ear.

4. abrasion, 3 cm x 2 cm on left cheek

5. contusion, 3 cm x 2 on right cheek below right eye

6. Lacerated wound :- 3 cm x 1 cm x bone deep behind right ear

7. Lacerated wound :- 1 cm x 0.5 cm x bone deep on left eye

8. Lacerated wound :- 1 cm x 0.5 cm x bone deep in the middle of front of nose. Underlying nasal bone is fractured.

9. Lacerated wound :- 5 cm x 2 cm x bone deep on left side of chin. Underlying bone is fractured.

10. Lacerated wound :- 3 cm x 1 cm x bone deep on Rt side of chin 6 cm below Rt. angle of mouth. Rt. side mandible bone is fractured.

11. Lacerated wound :- 2 cm x 1 cm x muscle deep, in the middle of lower lip.

12. Lacerated wound :- 6 cm x 1 cm x bone deep, on Rt. side of head, 10 cm above the Rt. ear. Right parietal bone of skull is fractured.