U. K. Varma, J. - (1.) THE above two appeals have arisen out of the judgment and order of Sri M. P. S. Tomar, II Addl. Sessions Judge Etah dated 23-10-78 in the Sessions Trial No 425 of 1977. THE accused Raghubir and Master of this case were tried under sections 302, 323/324/302 read with 149 and 148 of the Indian Penal Code, Amar Singh and Ram Singh u/Secs 323/ 324/302 read with 149 and 148 of the: Indian Penal Code, Ram Sanehi, Dhruv Singh, Ganga Singh, Ram Chandra and Hari Das u/Secs, 323, 147 and 323/ 324/302 read with section 149 of the Indian Penal Code and Ram Prasad, Karan Singh, Roop Ram, Kamta, Ram Nath, Udaibir, Ram Das, Kishan Pal, Suraj Pal, Shreepal, Banshi and Kripal u/Secs. 147 and 323/324/302 read with section 149 of the Indian Penal Code. THE Addl. Sessions Judge had convicted Master u/Secs. 302, 148, 323 read with 149 IPC. Amar Singh and Ram Singh u/Secs 148 and 323/392 read with section 149 of the Indian Penal Code and Ram Prasad and Karan Singh u/Secs. 147 and 323/302 read with section 149 of the Indian Penal Code. Tbe accused Master u/Sec. 302 IPC had been sentenced to imprisonment for life, u/Sec. 148 IPC to rigorous imprisonment for two years and u/Sec. 323 read with section 149 IPC to rigorous imprisonment for six montha. THE accused Amar Singh and Ram Singh u/Sec. 302 read with section 149 IPC had been sentenced to imprisonment for life, u/Sec. 323 read with section 149 IPC to rigorous imprisonment for six months and u/Sec. 148 IPC to two years rigorous imprisonment, the accused Ram Prasad and Karan Singh u/Sec. 302 read with section 149 IPC had been sentenced to rigorous imprisonment for life, u/Sec 323 read with section 149 IPC to R.I. for six months and u/Sec 147 IPC to rigorous imprisonment for one year. Aggrieved by the order of the Addl. Sessions Judge, Master, Ram Prasad, Ram Singh, Amar Singh and Karan Singh filed the Criminal Appeal No. 3033 of 1978. THE Government too has filed the Criminal Appeal No. 17 of 1979 against the acquittal of the remaining sixteen accused Roop Ram, Ganga Singh, Kamta, Ram Nath, Raghubir, Udaivir, Dhruv Singh, Ram Das. Hari Das, Kishan Pal, Suraj pal, Shri Pal, Banshi, Ram Chandra, Kripal and Ram Sanehi.
(2.) THE prosecution case briefly stated is that deceased Jwala along with the informant Lakhan Singh and Rambir and Chandrapal of his own village Nagla Kamley, and Diwari and others of village Gathran Nagla had got a sale deed executed in their favour by Sri Ram Pandit in respect of his share of land over which he alleged to have been in possession in village Paroli. THE accused Ram Prasad objected to the sale on the ground that Sri Ram Pandit had earlier gifted the above property in his favour. THE consolidation authority taking the sale deed to be valid directed mutation in favour of the vendees. Ram Prasad besides opposing the mutation application of the above vendees had also filed a suit in the Revenue Court in respect of the land which was the subject of the sale deed. THE deceased Jwala and Ram Prasad too filed Original Suit No. 100 of 1975 in the court of Munsif Etah regarding the same and on their prayer the Munsif Etah appointed Dhanpat Prasad Maheshwari Advocate PW 6 as Vakil Commissioner to evaluate the standing crop on the aforesaid land. Dhanpat Prasad Maheshwari on 26-3-76 about 8 A.M reached the disputed land which ha in his report has described as Chak No. 486 of village Paroli. THE deceased Jwala Prasad who was one of the plaintiffs and persons opposed to him were stated by him to have been present at the disputed site. THE latter were getting the standing crop harvested. THEy were armed with country made pistols and lathis THEy asked the Vakil Commissioner not to evaluate the crop of the disputed land and go back as there could be 'marpeet'. THE Vakil Commissioner noticing the mounting tension between them due to the hurling of abuses at each other went away. Raghubir and Amar Singh at that time were armed with their licensed guns and Ram Singh and Master were having country made pistols. THE accused Roop Ram and Kamta exhorted Raghubir and Master that Jwala should not be permitted to go back alive. Raghubir and Master thereupon shot at Jwala. On being struck by a pellet Jwala ran towards the village. He, however, was given a chase by both Raghubir and Master and when he was running through the field of Raj Bali, he was shot at in his back and he died as a result thereof at the spot. THE family members of the informant Lakhan Singh named Achhe Lal, Ganga Dhar and Ram Ladete, and also the witnesses Kehari Singh, Maik Singh Bishuni, Ram Swaroop and many other persons who had reached there challenged the above assailants. THE accused Ganga Das, Ram Chandra and Hari Das thereupon assaulted Achhe Lal, the accused Ham Sanehi and Dhruv Singh assaulted Ganga Dhar and one of the above persons carrying fire arms caused pellet injuries to Ram Ladete. All the accused thereafter fled away. The first information report of the incident was lodged within one and a half hours of the occurrence at 10.30 A.M. in the police station Jaithara. The medical examinations oil Ram Ladete, Ganga Dhar and Achhe Lal had been done at 1 P.M., 1.15 P.M. and 1.30 P.M. respectively on the same date. Their medical reports show them to have sustained the following injuries. Medical report of Ram Ladete 1. Gun shot wound .3cm x .Bern x Skin deep over right thigh. No tattooing; spot is not palbable, wound appeared to be as a result of distant fire. 2. Abrasion .2 cm x 2 cm over right thumb. Nature of injuries- Simple. Medical report of Ganga Dhar 1. Lacerated wound 7 cm x 1 cm over left side of the head caused by blunt weapon, bleeding present tissues seem to be ragged. 2. Swelling 4 cm x 6 cm over the left upper arm just above elbow. 3. Swelling 5 cm x 4 cm over high wrist region. 4.Contusion 10 cm x 2 cm over right hip, caused by blunt weapon. Nature of injuries-Simple caused by blunt weapon. Duration fresh (about 3 4 hours). Medical report of Achhe Lal 1. Lacerated wound 3 cm x .75 cm x 1 cm over head. 2. Lacerated wound 1 cm x 1 cm x .75 cm over left little finger. 3. Swelling 10 cm x 10 cm over left knee. Nature of injuries-simple caused by blunt weapon Duration fresh (about 3-4 hours). The post-mortem examination of Jwala had been done at 9.30 A.M. on 27-3-76. He is shown to have sustained the following ante-mortem injuries. 1. Multiple firearm wounds of entry in an area of 3.5 cm x 3 cm at the back of vertebral column, scorching and tattooing of very small magnitude only few wounds are united. 2. Fire arm wound 3/4 cm in diameter 5 cm below and laterally from injury no. 2 (wound of exit). 3. Fire arm wound 3/4 cm in diameter at the medical part of the left clavicular region (wound of exit). 4.Fire arm wound 3/4 cm in diameter at the medial part of right clavicular region (wound of exit). 5. Fire arm wound of entry 3/4 cm in diameter on the front and medial side on left upper arm; no schorching and no tattooing. The internal examinations revealed that his vertebrae had broken beneath the injury no. 1. His pleura, lungs and morts had been pierced. His stomach was found half full with semi digested food. The prosecution had examined the informant Lakhan Singh PW 1 Achhe Lal PW 2, Ram Swaroop PW 3 and Ram Ladetey PW 4 as the witnesses of the occurrence. Dr. Y. N. Singh PW 5 proved his medical reports in respect of Ram Ladetey, Ganga Dnar and Achhe Lal dealt with above. Dr. J. P. S. Chauhan PW 12 proved the post-mortem report in respect of Jwala. Dhanpat Prasad Maheshwari Vakil Commissioner stated about the mood of the parties immediately preceding the incident. Bijendra Kumar Saxena PW 7 pointed that the I. O. D. N. Misra had been murdered and was not available for his statement during the trial. He proved the recovery memos in respect of the gun of Raghubir Ext. Ka 9, empty cartridge Ext. Ka 11, blood stained and plain earth Ext. Ka 8 and the clothes of the deceased Ext. Ka 10 in the hand writing of D. N. Misra. He also proved the other documents which the I.O had prepared in connection with the investigation. He himself pointed to have drawn the check report Ext. Ka 6 and registered the case against the accused by the G. D entry Ext. Ka 7.
(3.) WE went through the evidence on record and heard the counsel for the parties at length. WE shall first take up the appeal filed by Master, Ram Prasad, Ram Singh, Amar Singh and Karan Singh against their conviction on the charges above mentioned. A perusal of the first information report shows that the actual incident of assault had two parts. The first related to the causing of the death of Jwala wherein the role of exhortation had been assigned to Roop Ram and Kamta (immediately whereafter he was shot at; and the second related to the causing of injuries to Achhe Lal, Ganga Dhar and Ram Ladetey when after the above shooting they had challenged the assailants of Jwala. The appellants Ram Prasad, Ram Singh, Amar Singh and Karan Singh were not pointed in the first information report or during the trial to have caused any injury either to Jwala deceased or to Achhe Lal, Ganga Dhar and Ram Ladetey. The Addl. Sessions Judge, however, has held them to have constituted the unlawful assembly, the common object of which was to kill Jwala and to cause injuries to Achhe Lal, Ganga Dhar and Ram Ladetey for he thought that they must have necessarily been present at the time of the incident to cut the crop which was to be evaluated by the Vakil Commissioner at the behest of Jwala and others whom they were certain to treat as enemies for they were intruders through sale deed which they did not respect. The counsel for the appellants Ram Prasad, Ram Singh, Amar Singh and Karan Singh argued that the conviction of these appellants was unsustainable for being based purely on surmise and conjecture. It was pointed that no overt act bad been attributed to them in connection with the assault and that there was also no evidence that they had formed an unlawful assembly to illegally cut the crop. It was stressed that it was not the prosecution case that there was any prohibitory injunction order against the appellants that they were not to interfere in the possession of Jwala deceased and others over the crop to be evaluated or that any unlawful assembly had been formed to commit dacoity in respect of the crop and to murder those who objected to the harvesting. The incident according to the FIR took place when the Vakil Commissioner failed to execute the commission. Dhanpat Rai Maheshwari Vakil Commissioner in his cross examination pointed out that in all there were three or four persons on the one side and eight to ten persons on the other. From the first information report it does not follow that the Vakil Commissioner had left before the incident. During the investigation and trial however, the witnesses gave out that the Vakil Commissioner fearing violent clash had gone away before the occurrence. There is however nothing to show that there was any time gap to be taken note of between his going and the assault wherein more persons arrived from both the sides. Thus if the Vakil Commissioner Dhanpat Prasad Maheshwari is to be believed it would follow that more than half of the accused had been falsely implicated. The complainant in the FIR had assigned roles to nine persons by name of either exhortation or of assault. WE feel that if Ram Prasad, Ram Singh, Amar Singh and Karan Singh appellants would have had really so much interest in the land as to constitute an unlawful assembly to kill Jwala and injure Achhe Lal Ganga Dhar and Ram Ladetey, they were not likely to have exercised restraint and remained passive spectators. In fact the finding of the Addl. Sessions Judge regarding their presence is not free from reasonable doubt particularly when we find that the testimony of Dhanpat Prasad Maheshwari, Vakil Commissioner and the allegations in the FIR ate not reconcilable It also cannot be lost sight of that Achhe Lal PW 2 gave but that he had not told the names of all the twenty one accused to the Investigating Officer and from the statement of Ram Swaroop PW 3 under section 161 CrPC too it follows that he had not stated about the presence of all the accused. The conviction of Ram Prasad, Ram Singh, Amar Singh and Karan Singh under section 323/324/302 read with section 149 IPC and sections 147 and 148 IPC is liable to be set aside. Coming now to the prosecution evidence against Master, it has to be noted that all the prosecution witnesses including the injured Achhe Lal, Ram Swaroop and Ram Ladetey poinded that he was armed with country made pistol and he had chased and fired at Jwala Master besides being involved in the litigation in connection with which Ohanpat Prasad Vakil Commissioner had gone to evaluate the crop, was likely to be there further more as attempt was being made to cut it by the party opposing Jwala. The Vakil Commissioner Dhanpat Prasad Maheshwari, it has to be seen, gave out that he had noticed pistols in the hands of a few amongst those who were getting the crop harvested. Dhanpat Prasad Maheshwari however did not state that he had also seen any gun in their hands. The injured prosecution witnesses Achhe Lal PW 2, Ram Swaroop PW 3 and Ram Ladetey PW 4 attributed the fire arm injuries of the deceased Jwala to Master carrying a pistol and Raghubir, a gun. The post-mortem report shows that there were only two fire arm entry wounds. Achhe Lal PW 2, Ram Swaroop PW 3 and Ram Ladetey PW 4 and also Lakhan Singh PW 1 had stated that at first both Raghubir and Master fired and when Jwala thereafter tried to run away to his village both of them gave him a chase and each of them again shot at him. On the basis of the post mortem report of Jwala, it could be held without any hitch that either only two shots in all were fired at Jwala or if more shots were fired, they did not strike him. The fire arm injury no. 5 sustained by Jwala did not cause any scorching or tattooing. It was on the front and medial side on the left upper arm. This appears to have been the first of the two injuries caused for on receiving it, Jwala could have run some distance as be allegedly did but on sustaining the subsequent gun shot injury which resulted in his death at the spot, he could not have run. Besides, the injury no. 1 of the post-mortem report, was pointed to have been caused from behind and we too find it to be on the vertebral column. The Medical Officer then around the fire arm injury no. 1 had noticed scorching and tattooing. He notes that in an area of 3.5 cm x 3 cm. 20 cm below the vertebral prominence in the neck, there were a number of very small wounds. Sri P. N. Misra learned counsel for the respondent Raghubir in the connected Government Appeal No. 17 of 1979 vehemently argued that the aforesaid injury no. 1 was not likely to have been caused by gun firstly for the reason that the dispersal of gun powder and the pellets from a distance of one of two feet could not be so much and secondly that in the event of firing from the gun there would not have been distance between the several wounds described as the injury no. 1. He vehemently emphasized that in the case of firing by gun, the gun powder and the pellets would have entered in the body of the deceased Jwala on masse causing hole type injury. The contention of Sri Misra cannot easily be brushed aside when on the basis of the other circumstances of the case also the same inference appears to be fully justified. We have already pointed that the Vakil Commissioner Dhanpat Prasad Maheshwati who could be taken to be an independent witness, did not state that he bad seen a gun being carried by any adversary of Jwala. It then is to be seen that the report of the ballistic expert had not been produced to show that any of the two cartridges picked up from the scene of the incident as follows from Ext. Ka. 11 had been fired from the gun of Raghubir regarding which the I. O had prepared the recovery memo Ext. Ka 10. The Supreme Court in the case ot Bir Singh v. State of U. P., 1977 CAR 398 SC had drawn an inference against the prosecution due to the non production of the report of the ballistic expert. The Addl. Sessions Judge thus was fully justified in his conclusion that Raghubir had not caused any fire arm injury to Jwala which reinforces the finding that Master appellant alone had caused both the fire arm wounds of entry to Jwala and that one fired from a distance of one or two feet was sufficient in the ordinary course to cause his death. This being the position Master had been justificably convicted under section 302 of the Indian Penal Code. The non production of any independent witness when the participation of Raghubir can be excluded is not such a feature which renders the above inference as being of doubtful validity. The fact that besides Raghubir two other persons were also pointed to be carrying arms similarly does not cast a shadow on the finding of guilt of Master for they were not stated to have used them against Jwala.;