MATHUR, J. - (1.) THE appellant Kishna Ram has been convicted by the judgment of Additional Sessions Judge, Raisingh Nagar dated 3. 12. 1997 for offence under Section 302 I. P. C. and sentenced to imprisonment for life and to pay a fine of Rs. 1000/- and in default of payment to further undergo 3 months rigorous imprisonment. He has also been convicted for the allied offences. By the same judgment co-accused Narayan Ram in S. B. Criminal Appeal No. 7/1998 has been convicted for offence under Section 307 I. P. C. and sentenced to 10 years rigorous imprisonment and to pay a fine of Rs. 5000/- and in default of payment of fine to further undergo 1-1/2 years rigorous imprisonment. In both the cases, the sentences have been ordered to run concurrently. THE acquittal of other accused persons namely Ram Chandra, Madan Lal, Sahi Ram, Ramrakh alias Ramlal, Dalu Ram, Mangat Ram alias Sant Ram, Rewant Raj, Bagu Ram, Chunni Lal S/o Gangaram Nathu Ram, Chunni Lal S/o Tara Ram and Gorkha Ram has been challenged by complainant Roopa Ram by way of revision. "
(2.) THE occurrence giving rise to the instant appeals are that PW. 1 Roopa Ram aged 40 years resident of Chak 1 J. S. D. , Jetsar during the life time of his first wife contracted second marriage with PW. 2 Smt. Meera aged 30 years, wife of deceased Bhikha Ram, and mother of three daughters and one son named Mangat Ram. It appears from the record that Mst. Meera sold 3 Bighas of land in Chak 4 L. C. to her brother-in-law Ram Chandra. From the sale proceeds she purchased 1-1/2 Bighas of land from PW. 1 Roopa Ram and 2-1/2 Bighas of land from one Jagraj Singh. When she settled with Roopa Ram as a wife, as per the Panchayat decision 2-1/2 Bighas of land in Kila No. 14 & 15 of her ownership and possession was transferred in the name of her son Mangat Ram. 1- 1/2 Bighas of land in Kila No. 11, 12 & 13 was transferred by Roopa Ram in the name of Mst. Meera for a sum of Rs. 1,05,000/ -. THE said sale was cancelled and a new agreement to sell was executed on 4. 10. 95 whereby it was agreed to sell 1-1/2 Bighas of land in Kila No. 11, 12 & 13 to Mangat Ram vide Ex. D. 1. On the basis of said document the accused persons asserts that they were in possession over the land and the complainant party was aggressor. THE case of the prosecution is that though the crop was cultivated by Roopa Ram, the accused persons created mischief by plucking Narma (American Cotton ). THE manner of occurrence as narrated by Roopa Ram was recorded by PW. 10 Harvindra Singh A. S. I. , Police Station, Vijay Nagar vide Ex. P. 1. As per his version on 10. 11. 95, he had gone to the court at Anoopgarh. He returned to Jetsar at 1:00 P. M. and parked the motorcycle on the shop of one Resham Singh. He hired a jeep from Jetsar and proceeded to the house of Om Prakash situated at Chak 4 L. C. (B ). He was told that his younger brother Om Prakash was in the field as such he proceeded to field. It was reported by Om Prakash that some ladies were plucking Narma under the supervision of accused persons namely Kalu Ram, Kishna Ram, Chunni Lal, Mangat Ram etc. from the field he had agreed to sell Mangat Ram. Both the brothers proceeded to the field and found the information to be correct. THEy asked them to desist from plucking the Narma but they refused to do so. However, they had to return to Dhani, as driver of the jeep was insisting to release him. Accordingly they went to Dhani, unloaded the goods from Jeep and returned to field quickly at about 3 : 00 P. M. While ladies continued to pluck Narma, the accused Narayan Ram armed with 12 Bore Double Barrel Gun, Kishna Ram armed with 12 Bore Single Barrel Gun, Rajendra armed with 12 Bore Single Barrel Gun and Kalu Ram armed with 12 Bore Single Barrel Gun and other accused persons armed with Gandasiya & Lathies were standing. THEy questioned them, their source of authority for plucking the Narma. THE accused persons Narayan Ram and Kishna Ram exclaimed that "they will show the order", and fired at them. He sustained injuries on thigh and legs from the shot fired by appellant Narayan Ram. Another shot was fired by Kishana Ram hitting Om Prakash. Om Prakash fell down. Appellant Kishna Ram came close and again fired, resulting into instantaneous death of Om Prakash. THE complainant Roopa Ram out of fear, fled away and concealed himself in the field of PW. 3 Jasvindra Singh. Hearing the fire shots, his wife PW. 2 Mst. Meera rushed to the spot. THE incident was also witnesses by PW. 3 Jasvindra Singh. his mother Salvindra Kaur, Mahendra Singh, PW. 4 Dhanna Ram etc. THE accused persons left the spot in the tractor trolley of Kalu Ram. At about 4:00 P. M. PW. 8 Lekhraj arrived with two police constables and removed him to the hospital. He was admitted in the Government Hospital, Vijay Nagar. On the information given by Dr. Hanuman Singh, PW. 10 Harvindra Singh A. S. I. , Police Station Vijay Nagar reached at the Hospital at 6:15 P. M. and recorded his statement. On the basis of the said Tahrir, F. I. R. No. 211/95 vide Ex. P. 21 was registered for offence under Sections 302, 308, 447, 147, 148, 149 I. P. C. Before the F. I. R. was formally registered. PW. 11 Kan Singh C. O. , Raisinghnagar receiving receiving wireless message of the incident straight away proceeded to the spot. He prepared the site plan Ex. P 16 and P. 16-A in presence of Mst. Meera. A inquest report was prepared vide Ex. P. 7. Two empty 12 Bore Cartridges were recovered from the spot vide Ex. P. 18. THE police completed other formalities and sent the dead body of Om Prakash for autopsy. Appellants Narayan Ram and Kishna Ram were arrested on the same day vide Ex. P. 10 & P. 11 respectively. Mangat Ram was also arrested vide Ex. P. 13. A. 12 Bore Double Barrel Gun, one empty cartridge and a bandolier of 12 cartridges with licence was seized vide Ex. P. 14. Similarly, from Kishna Ram a 12 Bore Single Barrel Gun with empty cartridges and a bandolier of 12 cartridges and the licence was seized vide Ex. P. 15. THE other accused persons were also arrested and certain recoveries were made from them. After usual investigation police laid charge-sheet against the accused persons for offence under Section 302, 307, 147, 148, 149, 447 I. P. C. and section 27 of the Arms Act. On being committed, the trial court framed charges against the appellate Kishna Ram for offence under Section 302, 307/149, 147, 148, 447 I. P. C. read with section 27 of the Arms Act. As against Narayan Ram charges were framed for offence under Section 302/149, 307, 147, 148, 447 I. P. C. and Section 27 of the Arms Act. As against rest of the accused persons charges were framed for offence under Section 302/149, 307/149, 147, 148 & 447 I. P. C. The appellants and other accused persons denied the charges levelled against them and claimed trial. The prosecution in support of the case adduced oral and documentary evidence. In statement under Section 313 of the Code of Criminal Procedure all the accused persons denied the correctness of the evidence appearing against them. One of the accused Mangat Ram the son of Mst. Meera stated that 1-1/2 Bighas of the disputed land in Kila Nos. 11, 12 & 13 was sold by Roopa Ram to his mother Meera by an agreement. Subsequently, the said land was sold to him. The possession of the land was also given to him. On the day of the occurrence, he was getting the Narma plucked by employing ladies. At that time Roopa Ram and Om Prakash arrived. Roopa Ram opened fire and in response to that some body from the field of Narma fired twice which hit Roopa Ram and Om Prakash. In support of the defence Mangat Ram examined D. W. 1 Malkit Singh. Mr. H. S. S. Kharlia learned counsel appearing for appellant Kishna Ram has challenged the conviction of the appellants on number of grounds. He has made serious endeavor to dig out holes on the edifice to the prosecution case. The main criticism is levelled against the correctness of the testimony of the alleged eye-witnesses. He has pointed out that the F. I. R. is ante time and the entire case has been fabricated by the prosecution. It is also submitted that the complainant party was the aggressor. On the other hand, the learned Public Prosecutor has supported the judgment of the trial court. We have scanned the prosecution evidence carefully and considered the rival contentions. The prosecution in order to bring home guilt of the appellants, has examined PW. 1 Roopa Ram, PW. 2 Mst. Meera, PW. Jasvindra Singh, PW. 4 Dhanna Ram as eye- witnesses. Before we deal with the evidence of eye-witnesses, it would be apt to deal with the medical evidence. PW. 5 Dr. Ratan Lal conducted the post-mortem of the dead body of Om Prakash vide Post-mortem Report Ex. P. 29. He noticed following injuries on his person :- (1) Bruise with abrasion 10 x 8 cm. on left lower chest. (2) Abrasion (4 in number) 3/4 x 3/4 cm. on right forehead. (3) Punctured wounds (round six in number) 0. 4 x 0. 4 cm. each scattered on left side of neck and face. (4) Punctured wounds (round two in number) 0. 4 x 0. 4 cm. each on the back of left arm. (5) Punctured wound (round one in number) 0. 4 x 04 cm. each on Right hip. (6) Punctured wounds (Rounded about 60 in number) 0. 4 x 0. 4 cm. scattered all over the back, extending from shoulder to lower part of back including scapular region, back bone, back of chest, back of abdomen reaching upto upper part of both hips. He has noted that wounds No. 1 & 2 were simple by blunt object, wounds No. 3 to 6 by fire arm. Certain pellets were recovered from the dead body of Om Prakash. In his opinion the deceased died due to haemorrhage from the lungs, liver & spleen from fire arm injuries causing shock. He also stated that he examined Roopa Ram on 10. 11. 95 at 5:40 P. M. and noted the following injuries vide Ex. P. 4:- (1) Punctured wounds (6 in no. rounded in shape) 0. 3 cm. x 0. 3 cm. each in size- Scattered from right knee to upper part of right Thigh on its medial aspect. (2) Punctured wounds (3 in no. rounded) 0. 3 cm. x 0. 3 cm. each in size- Scattered in front of Right thigh lower & middle part. (3) Punctured wounds (2 in no. rounded) 0. 3 cm. x 0. 3 cm. each in size- Scattered on back of right thigh on its upper 1/3rd. (4) Punctured wounds (4 in no. rounded) 0. 3 cm. x 0. 3 cm. each in size- Scattered in front of Left thigh on lower & middle part. (5) Punctured wound (1 in no. rounded) 0. 3 x 0. 3 cm. each in size- On lateral aspect of Left thigh on its middle 1/3rd part. He advised them to get the injuries radiologically examined. In his opinion all the injuries were simple in nature caused by blunt object. The star witness of the prosecution is PW. 1 Roopa Ram an injured eye-witness. He reiterated the statement as given in Ex. P1. We do not consider it necessary to repeat the same. With respect to the actual incident, he stated that he along with his deceased brother Om Prakash went to the field, where he found that Kalu Ram etc. were plunking Narma from the land in dispute. He asked them to desist from doing so. The driver of the jeep was insisting to release him as he was in hurry. He wanted the luggage in the jeep to be unloaded. Therefore, he returned to the Dhani along with his brother Om Prakash. After unloading the luggage, they returned to the field in a Tractor. They got down from the Tractor at about 3:00 P. M. and inquired from the accused persons in the field as to whether they were having any order with them for plucking Narma. Narayan Ram and others retorted saying that they will show the orders right now and Narayan Ram opened fire at him. He further added that appellant Kishna Ram also opened fire causing injuries to Om Prakash, as a result thereof he fell down. The appellant Kishna Ram made a second fire causing injuries on the neck of Om Prakash. His younger brother Om Prakash succumbed to the injuries on the spot. He fled away from the spot and took shelter in the field of PW. 3 Jasvindra Singh. After some time Lekhraj, Nishan Singh and two constables arrived and took him to the hospital at Vijay Nagar in a Jeep. There has been a lengthy cross examination but nothing has been elicited to discredit the testimony of this witness. The main criticism against the testimony of PW. 1 Roopa Ram is that in view of the height of the plant of Narma, it was not possible for the witness to see the incident. The learned counsel has tried to capitalize on the statement of the witness in the cross examination to the effect that the accused persons were firing from the field where the crop was standing. It is argued that normal height of the crop of Narma is about 6-7 ft. Thus, it was not possible for the accused persons to fire from the field where the crop of Narma was standing. He has also criticised the part of the statement of the witness, wherein he has stated that the height of the crop was upto the knee height. On careful consideration of the evidence, we are of the view that there is neither any inconsistency nor such improbability which may discredit the testimony of this witness. As far as distance part of concerned, he has stated that the first fire was from a distance of 12-13 Pavda and the second fire on Om Prakash was from a distance of 1 1/2 Pavdas. PW. 5 Dr. Ratan Lal has stated that the fire on Om Prakash could from a distance of 4 ft. It may be noticed that the accused persons were in the field and were plucking the Narma for some time. Thus, the fire was from a reasonably close range. As such there is nothing improbable. Therefore, there is nothing to suggest any improbability in seeing the assailants who fired at the witness Roopa Ram and deceased Om Prakash. The statement of this witness finds corroboration from the medical and other evidence. The presence of this witness on the spot is not disputed even by the defence. This witness was not having any grudge, enmity or motive to falsely implicate Narayan Ram and Kishna Ram. The testimony of this witness having stood the test of cross examination and supported by the medical and other evidence, there is no reason to disbelieve his statement.
(3.) PW. 2 Mst. Meera after narrating the fact of her marriage with Roopa Ram, her earlier marriage with Bhikha Ram, her family, the dispute with respect to the land stated that Roopa Ram and Om Prakash arrived in the field at about 3:00 P. M. They went to the Dhani and returned soon in a Tractor. At that time the was in the field. Roopa Ram and Om Prakash asked the persons plucking Narma to desist from doing so. Narayan Ram opened fire which hit Roopa Ram. Thereafter Kishna Ram opened fire hitting Om Prakash on account of which he fell down. Kishna Ram refired hitting Om Prakash, on account of which he died on the spot. She further stated that Roopa Ram fled away and took shelter in the field of Jasvindra. She gave first aid to Roopa Ram. Thereafter, Lekhraj, Nishan Singh and two constables arrived who took him to the hospital. In the cross examination, she admitted that she witnessed the incident from the distance of one and quarter bigha. She also admitted that when the accused persons opened fire, she was hiding in the field of Narma. One of the accused namely Narayan Ram exhorted to kill her husband and in fact opened fire but she was saved. Looking to the distance at which she was, there appears to be some substance in the contention of the learned counsel that she did not witness the actual incident. However, her statement cannot be totally discredited as she reached on the spot just after the incident. Pw. 3 Jasvindra Singh stated that at about 3:00 P. M. he was in his field at Kila No. 21, which is close to the field of Roopa Ram. At about 3:00 P. M. Roopa Ram and Om Prakash arrived at their field in Kila No. 11 on a Tractor. He also reached on the spot. Some ladies were plucking Narma. Narayan Ram, Kishna Ram, Rajendra, Mahendra were also present on the spot. Roopa Ram asked them to show as to whose order they are plucking Narma. Narayan Ram saying that he will show the order fired the gun at Roopa Ram. Om Prakash tried to run away thereupon Kishna Ram opened fire hitting Om Prakash. Roopa Ram went near Om Prakash and thereafter he took shelter in his Dhani. The accused persons chased Roopa Ram unsuccessfully. After some time Lekhraj, Nishan Singh and some police constables arrived and removed Roopa Ram to the Hospital. Nothing has been elicited in the cross examination to discredit the testimony of this witness. It is contended by Mr. Kharlia learned counsel that the injured Roopa Ram and Om Prakash were aggressors inasmuch as Mangat Ram was on the disputed land of his ownership and possession along with the appellants plucking the Narma. The witness Roopa Ram and Om Prakash arrived in the Jeep. After threatening, they went to the Dhani and returned after preparation and fired on them. It is submitted that from these facts, it emerges that the witness Roopa Ram and deceased Om Prakash were the aggressors and some body from the field of Narma fired which hit Roopa Ram and Om Prakash. It is contended by the learned counsel that the land in dispute was transferred by Pw. 1 Roopa Ram to Mangat Ram vide Ex. D. 1. As such Mangat Ram was getting the Narma plucked by the ladies and the appellants. There was no occasion for Roopa Ram and Om Prakash to be on the field. It appears from the record that when Smt. Meera settled in the house of Roopa Ram as per the Panchayat decision 2-1/2 Bighas of land in Kila Nos. 14 & 15 of the ownership and possession of Mst. Meera was transferred in the name of her son Mangat Ram. One and half Bighas of land in Kila Nos. 11, 12 & 13 was transferred by Roopa Ram in the name of Mst. Meera for a sum of Rs. 1,05,000/ -. It is stated by Pw. 1 Roopa Ram that he cultivated the land on behalf of Mst. Meera. However, the said land was transferred about a month prior to the incident i. e. on 4. 10. 95 to Mangat Ram by executing an agreement to sell. The fact that the crop was cultivated by Roopa Ram find support from the statements of Pw. 2 Mst. Meera and Pw. 3 Jasvindra Singh a neighbor. A reading of Ex. D1 i. e. the document dated 4. 10. 95 clearly shows that the crop was to be collected by Roopa Ram. As per the settled practice after cutting of the crop the possession could be delivered. Though the agreement to sell Ex. D. 1 recites that possession has been delivered to Mangat Ram but reading of the document as a whole shows that the crop was to be collected by Roopa Ram himself as it was sown by him. Even otherwise no right is created simply by a document of agreement to sell. ;