- (1.)THIS is an appeal by Chokhey and six others all of whom have been convicted under Sections 307 and 323 read with Section 149 of the Indian Penal Code and each sentenced to six years R. I. for the offence punishable under Section 307/149 and to one year's R. I. for the other offence. They have also been convicted for rioting. Babu Ram and Roop Lal who according to the prosecution case were armed with country-made pistols at the time they committed the offence of rioting were convicted under Section 148 I. P. C. and each sentenced to two years R. I. while the remaining five appellants were convicted under Section 147 I. P. C. and each sentenced to one year's R. I. All the sentences were ordered to run concurrently.
(2.)THIS appeal first came up for hearing before a learned Single Judge of this Court, He referred the appeal to a larger Bench because in his opinion there was some conflict of decision on the point of presumption to be drawn from the use of fire arm in rases where injury dangerous to life is not caused. The learned Single Judge had referred Criminal Appeal No. 2560 of 1963 to a larger Bench on a somewhat similar point, viz., presumption to be drawn from the use of the fire arm even though the injury caused is not on any vital part of the body. That is how both these appeals came up before this Bench for decision.
The occurrence which gave rise to the Sessions trial out of which this appeal arises is of 31st of October, 1962. Sher Pal and Lila Dhar (P. Ws. 2 and 3) are residents of village Jagatpur within police circle Bhongaon District Mainpuri. At about 8 A.M. they were putting earth in the lane in front of the door of their place where they used to tether their cattle. Of the seven appellants Babu Ram and Roop Lal were armed with pistols and the rest were armed with lathis reached there and asked Sher Pal and Lila Dhar not to put earth there. Sher Pal and Lila Dhar did not accede to their wishes and told them that they would not stop that work. Thereupon all the accused persons (appellants), who were holding lathis started beating Sher Pal and Lila Dhar. Both of them raised an alarm on hearing which Ben-chey Lal (P. W. 5) an uncle of Sher Pal, Smt. Lakshmi Devi (P. W. 6) the aunt of Sher Pal, Smt. Phool Mati (P. W 7) the wife of Sher Pal. Pritam (P. W. 4) and Jhunku (P. W. 8) a cousin of Pritam arrived there. At the instigation of Ulfat, appellant, all the accused persons, who were armed with lathis, started beating them and caused in-juries to them. Again Ulfat (appellant) instigated Babu Ram and Roop Lal who were armed with pistol to kill and both of them fired their pistols causing gun-shot injuries to Lila Dhar (P W 3) and Pritam (P W 4).

(3.)THE first information report of the occurrence was lodged by Sher Pal (P W. 2) at police station Bhongaon on the same day at 5.30 P.M. The place of occurrence is at a distance of 10 miles from the police station The names of all the accused persons, the weapons with which they were armed and the main incident as it had taken place were mentioned in the first information report. However, there was no mention in it of any exhortation made by Ulfat to other accused persons either to beat Sher Pal and others or to kill them.