Rakshpal Singh And Another. vs Srate Of U.P. on 2 August, 2019

[Cites 33, Cited by 1]

Allahabad High Court

Rakshpal Singh And Another. vs Srate Of U.P. on 2 August, 2019

Equivalent citations: AIRONLINE 2019 ALL 2343

1. List is being revised. None is responding on behalf of appellants, even after availing ample opportunity of hearing. Mr. Mukul Rakesh, learned counsel for the complainant and learned A.G.A. for the State are present and have been heard.

2. It is informed by learned A.G.A. on the basis of instructions that appellants Rakshpal Singh and Pooran Singh have been released from jail custody on 19.01.2017 and 02.02.2017 respectively on the licence granted under provisions of Section 2 of U.P. Prisoner's Release on Probation Act, 1938 and Rule 8 of U.P. Prisoner's Release on Probation Rules by Hon'ble Governor of U.P. Learned A.G.A. submits that since appellants have been released from jail, hence no one is coming forward to argue the appeal.

3. We do not find any reason to keep this appeal pending, hence proceed to decide it finally.

4. This appeal has been preferred by the appellants Rakshpal Singh and Pooran Singh assailing impugned judgment and order dated 13.10.1999 delivered by the Court of Additional Session Judge, IVth, Lakhimpur Kheri in Session Trial No. 420/1988: State Vs. Rakshpal Singh and another.

5. The trial Court has convicted for offence punishable under Section 148 I.P.C. and sentenced to undergo rigorous imprisonment for one year, for offence punishable under Section 302 I.P.C. for imprisonment for life and amount of Rs. 5,000/- has been imposed as fine and for offence punishable under Section 307 I.P.C. appellants have been sentenced for rigorous imprisonment for five years and amount of Rs. 5,000/- has been imposed with default stipulation to serve out additional imprisonment for six months.

6. The appellants have mentioned in grounds of appeal that the trial court has committed mistake in holding the alleged occurrence to be a "free fight" and has not considered the case of self defence on behalf of the accused-appellants. The trial Court in cross case Session Trial No. 342 of 1989:State Vs. Darshan Singh son of Dharm Singh under Section 147, 148, 149 and 307 I.P.C. arising out of Crime No. 64A of 1988: State Vs. Darshan Singh and others, Darshan Singh has been convicted and sentenced to undergo four years rigorous imprisonment and amount of Rs. 5,000/- as fine has been imposed on him for offence punishable under Section 307 I.P.C. The trial Court has not extended benefit of doubt to the accused appellant. The incident was occurred in the field of Saheb Singh, whereas learned trial Court has held that it occurred on the Chak road. Learned trial Court has committed mistake in holding that the prosecution has established its case against the accused-appellant for offence punishable under Section 148, 302 and 307 I.P.C. in Crime No. 64 of 1988 in S.T. No. 420 of 1988. The trial Court has observed that the prosecution case is not very clear about the gun shot injury sustained by Pooran Singh, even then the appellant have been convicted. The findings arrived at by the trial Court are perverse and against the evidence on record. The prosecution story is false and fabricated and accused-appellants have falsely been implicated in this crime.

7. The complainant Ranjeet Singh son of Malook Singh forwarded written report (Ext Ka-1) dated 13.07.1988 to the Station House Officer Mailani, District Lakhimpur Kheri. On the basis of written report submitted by the complainant Check F.I.R. (Ext ka-2) was registered on 13.07.1988 at 03.10 a.m. and Crime No. 64 of 1988, under Sections 147, 148, 149, 307 and 302 I.P.C. was registered at Police Station Mailani, District Lakhimpur Kheri. G.D. of registration of crime (Ext Ka-3) was also prepared.

8. The complainant has narrated in his written report that he is resident of village Pooranpur. He went to the residence of his maternal uncle Darshan Singh, which was situated in village Balarpur, 12 days ago. Yesterday i.e. on 12.07.1988 his father Malook Singh came there to bring him back. Kundan Singh son of Jeewan Singh, resident of Balarpur took agricultural field of Saheb Singh on lease/"theka". Darshan Singh son of Kundan Singh was ploughing this agricultural field by plough (Hull). It was situated in between the Chak of his maternal uncles and Kundan Singh. Kundan Singh was cutting "maind" (boundary of agricultural field). At 4.00 p.m. his maternal uncle Beyant Singh told Kundan Singh that he should not cut "maind" and told that after reaping rice by him, then he often ripe rice in his agricultural field and his bullock damage his crop. Both the parties abused each other.

9. It is also mentioned in written report that the complainant brought his maternal uncle Beyant Singh at his house. The accused Kundan Singh and Darshan Singh left plough in the agricultural field and went at their "jhala". His maternal uncle Amrik Singh was ploughing his agricultural field at 06.00 p.m. again on previous day near "jhala" of accused persons in northern side and other maternal uncle Beyant Singh was making/repairing "maind" of this field. His elder maternal uncle Dharshan Singh went to call Beyant Singh to cut grass/graze, in the meanwhile, Kundan Singh, Rakhspal Singh, Karnail Singh, Darshan Singh son of Kundan Singh, Pooran Singh son of Payara Singh, who is brother-in-law of Kundan Singh, came there.

10. It is further contended in written report that Kundan Singh had wielded "Barchha", Rakshpal Singh wielded "Talwar", Karnail Singh wielded gun, Darshan Singh wielded sword and Pooran Singh had wielded "kanta". All the accused abused and assaulted Amrik Singh and told him that he was harassing them and therefore, they will eliminate him. Amrik Singh ran away towards his house. His all maternal uncles gathered on chak road. Karnail Singh shot fire from gun on Beyant Singh, who fell down. Remaining accused assaulted Amrik Singh and Beyant Singh with their weapons kanta, barchha, talwar. Amrik Singh and Dahshan Singh tried to save them. His father Malook Singh, maternal grand mother Surjeet Kaur, maternal aunt Sukhwant Kaur, Gurmeet Kaur and Preetam reached at "jhala". Hem Singh also came there from his "jhala". All five accused persons have fled away towards their "jhala".

11. It is further mentioned by the complainant that the deceased Beyant Singh expired on the place of occurrence. Amrik Singh and Darshan Singh sustained serious injuries. They were brought by Tractor trolley at hospital Baleganj, where doctor was not available, then they brought the both injured at Gola hospital. Amrik Singh expired on the way ahead Village Pratappur. Darshan Singh, injured was admitted in the hospital. It is mentioned in the written report that dead body of Amrik Singh was kept in hospital and dead body of Beyant Singh was lying on the place of occurrence.

12. The Investigating Officer recorded statements of witnesses. He inspected the place of occurrence and prepared Site Plan (Ext Ka-10). He collected blood stained and plain soil from the place of occurrence and prepared recovery memo (Ext Ka-11). He also took in his possession torned and blood stained "pagrhi" of the deceased Beyant Singh, which was lying near dead body of the deceased Beyant Singh and prepared recovery memo (Ext Ka-12).

13. The Investigating Officer also prepared inquest report (Ext Ka-5) of dead body of the deceased Beyant Singh and documents (Ext Ka-6), report for C.M.O., Police Form (Ext Ka-7), photolash (Ext Ka-8), sample of seal (Ext Ka-9), for autopsy of dead body of the deceased Beyant Singh, the concerned doctor prepared post-mortem report of Beyant Singh (Ext Ka-18). The Investigating Officer has also prepared inquest report (Ext Ka-21) and documents report for C.M.O. (Ext Ka-22), photolash (Ext Ka-23), sample of seal (Ext Ka-25), police form (Ext Ka-26) for autopsy of dead body of the Amrik Singh the concerned doctor prepared post-mortem report (Ext ka-17).

14. The injured Darshan Singh son of Dharam Singh was medically examined by the doctor, who prepared injury report (Ext Ka-19) and supplementary report (Ext Ka-20) of Darshan Singh. The X-ray report was also prepared after X-ray of injuries sustained by him .

15. The Investigating Officer collected blood stained clothes of injured Darshan Singh son of Dharam Singh and prepared recovery memo (Ext Ka-15). He and his companions/police personnel on 14.07.1988 acted upon tip of given by informer that Kundan Singh-accused was coming on foot on Kukra road towards Bankeganj. The police party reached near Rice Mill of Jagdish Agarwal and saw Kundan Singh. He was intercepted at 9.00 a.m. and arrested. He confessed on 12.07.1988 that an altercation took place with Beyant Singh, therefore, accused persons agreed to eliminate Beyant Singh and assaulted him with their weapons, Talwar, Barchha, Kanta and gun. Karnail Singh fired shot on Beyant Singh and other accused persons assaulted with their weapon to the both deceased and injured Darshan Singh. Amrik Singh and Darshan Singh tried to save Beyant Singh. Amrik Singh snatched sword from them.

16. Kundan Singh also apprised the police party that he had hidden both Talwar in "Chhapper" at their "jhala". His son, brother and brother-in-law brought kanta, Barchha and gun and told him that they would meet him at Lakhimpur Kheri hospital. On pointing out of Kundan Singh both blood stained swords were discovered by the police party. Kundan Singh picked up both swords from "chhapper". These swords were sealed jointly and recovery memo (Ext Ka-13) was prepared by the Investigating Officer/PW-5.

17. The Investigating Officer prepared Site Plan of place of discovery (Ext Ka-14). The Investigating Officer forwarded charge-sheet (Ext Ka-16) against all the accused persons.

18. The court of the Chief Judicial Magistrate, Lakhimpur Kheri took cognizance on the charge-sheet and committed this case to the court of Session on 26.10.1988.

19. The trial Court of Additional Sessions Judge, Court no.2, Lakhimpur Kheri framed charges against Rakshapal Singh and Pooran Singh for offence punishable under Section 148, Section 302 read with Section 149 and Section 307 read with Section 149 I.P.C. Both the appellants pleaded not guilty and claimed to be tried.

20. It is pertinent to mention here that the accused persons Kundan Singh, Karnail Singh and Darshan Singh expired before committal of this case by the Court of Chief Judicial Magistrate, Lakhimpur Kheri to the Court of Sessions.

21. Learned trial Court has recorded evidence of PW-1 complainant Ranjeet Singh, PW-2 Darshan Singh son of Dharam Singh, PW-3 Dharshan Singh son of Man Singh, PW-4 Constable Shiv Kumar Singh, PW-5 Sub Inspector Jai Ram Singh, PW-6 Dr. R.P. Pandey. It is to be noted that witness no.4 has been marked twice incorrectly on statement of witness Constable Shiv Kumar Singh and Dr. S.K.Tiwari. Therefore, for identification statement of Dr. S.K.Tiwari is hereby marked as "PW-4/1". These witnesses proved the aforesaid documents as Ext 1 to Ext 26 relied upon by the prosecution.

22. Learned trial Court has recorded statement of appellants under Section 313 Cr.P.C. Both the appellants have stated that they have falsely been implicated in the crime and occurrence, as alleged by the prosecution never occurred. Accused-appellant Pooran Singh has stated that Kundan Singh took chak of Saheb Singh on Theka/lease. The complainant Ranjeet Singh often went to get ploughed 40-50 acres agricultural land of his maternal uncle Darshan Singh, Beyant Singh and Amrik Singh. He has further stated that he saved himself during incident committed by the deceased/complainant party. He was assaulted by them also.

23. Both the appellants have stated that they would file their written statements, but no written statements except written argument is filed. The complainant has also filed written arguments. The accused persons filed injury report of Karnail Singh, Pooran Singh, Rakshpal singh and Darshan Singh son of Kundan Singh (Ext Kha 01 to 5). The copy of F.I.R. of Crime No. 64A/1988 under Sections 147, 148, 149 and 307 I.P.C. registered at Police Station Mailani, District Lakhimpur Kheri was also proved as Ext Kha-1. The appellants have not adduced any oral evidence.

24. Learned trial Court has evaluated and analyzed evidence of witnesses and convicted both the appellants and awarded the aforesaid punishment.

25. We have perused impugned judgment and order dated 13.10.1999, evidence of witnesses and documents/exhibits proved by them.

26. We have perused both version put forth by both the parties in report of Crime No. 64/1988 and 64A/1988. The complainant Kundan Singh son of Jeewan Singh lodged F.I.R. of cross case. He has narrated in this complaint sent to Superintendent of Police, Lakhimpur Kheri that there was enmity with Beyant Singh, Darshan Singh and Amrik Singh all sons of Dharam Singh regarding agricultural land. They wanted to take possession of their agricultural lands. On several occasions some altercation also occurred prior to the date of occurrence. The deceased party wanted that the complainant Kundan Singh and his family must quit the agricultural land, which was in their possession.

27. It is also mentioned in this F.I.R. that on 12.07.1988 at 6.00 p.m. he was ploughing his agricultural filed along with his son Darshan Singh. Beyant Singh has wielded sword, Amrik Singh wielded Ballam, Darshan Singh wielded gun, Ranjeet Singh and his father has also wielded sword. They came at their agricultural field. Darshan Singh exhorted and told that they should be taught a lesson. Darshan Singh shot fire on Kundan Singh and his son. In the meanwhile, Rakshpal Singh, Karnail Singh and his brother-in-law Pooran Singh also reached at the place of occurrence. The complainant party Beyant Singh and other accused persons also assaulted them. The ladies of his family also raised alarm and Kundan Singh, his brothers, son and brother-in-law were saved themselves. Then, the complainant party Beyant Singh and others went towards their house.

28. Learned trial court has considered cross-version mentioned in F.I.R. by Kundan Singh and written statements/arguments submitted by the appellants. The written statement have been filed by the appellants on the facts narrated by Kundan Singh in his written report.

29. PW-1 complainant Ranjeet Singh and PW-2 Darshan Singh injured have been examined as witnesses of facts on behalf of the prosecution. PW-3 Darshan Singh son of Man Singh was witness of inquest proceedings of deceased Beyant Singh. He also witnessed discovery of two swords on pointing out of Kundan Singh. Co-accused Kundan Singh was arrested in his presence, but PW-3 turned hostile and stated that he had not witnessed these proceedings/facts. He signed the paper later on.

30. Dr. S.K.Tiwari PW4/1 has proved that on 15.07.1988 he carried out X-ray of injured referred by Dr. R.P.Pandey, Medical Officer, Gola. He has also stated that on 13.07.1988 he medically examined Pooran Singh, Darshan Singh, Karnail Singh, Rakshpal Singh also. He has proved X-ray (Ext Ka-4) of injured Darshan Singh son of Dharam Singh. Vanet of skull was found fractured. Upper end of tibia of left leg was also found fractured. The third metacorpal bone of left hand of injured Darshan Singh PW-2 was also found fractured.

31. The injury report (Ext Ka-19) was proved by Dr. R. P. Pandey-PW-6. The witness PW-6 found following injuries on the body of the PW-2 Darshan Singh:

i) Multiple incised wounds over an area of 25cms x 11cms on left side head, 7cms above left ear; size varying of the wound 14 cm x 0.5 cm x bone deep to 11 cm x 0.6 cm x bone to 6 cm x 0.5 cm x bone deep. About five in no. Fresh bleeding present. Advised X-ray skull.

ii) incised wound of size 10.5cm x 0.6 cm x bone deep on front of right hand-palm upto web of thumb and index finger; right hand fresh bleeding present

iii) Incised wound of size 10 cm x 0.8 cm x bone cut on front outside of left upper leg 5 cm below left knee joint. Advised X-ray left leg

iv) Incised wound of size 2 cm x 0.5 cm x bone cut on dorsal side of left hand adjacent to lower base of middle finger of left hand. Advised X-ray left hand middle finger.

v) incised wound of size 2.5 cm x 0.5 cm x bone deep on dorsal side of left elbow-joint.

vi) Incised wound of size 4 cm x 0.8 cm x bone deep on dorsal side of left scapula region 9.5 cm below left shoulder joint.

vii) Incised wound of size 8 cm x 0.9 cm x superficial on left side back 20 cm below lower margin of left scapula.

viii) Linear abrasion of size 6 cm x 0.2 cm on left side back 3.5 cm above injury no.7.

Injury Nos.2, 5, 6, 7 and 8 were simple in nature and caused by sharp edged weapon. Fresh in nature. Injured was in state of shock. General condition was low. Pulse was feeble.

32. PW-6 Dr. R. P. Pandey has opined that injury no.1 was found dangerous to life. All the injuries might have been inflicted on 12.07.1988 at 06.00 p.m. The injuries Nos. 1,3 and 4 were found grievous, because of fracture was found underneath them.

33. Dr. R. P. Pandey-PW-6 has also proved post-mortem report of deceased Amrik Singh and Beyant Singh. He found following ante-mortem injuries on the dead body of the deceased Amrik Singh during autopsy conducted by him on 13.07.1988.

"i) Incised wound of size 6 cm x 0.5 cm x bone deep on the left side of head 11.5 cm above left ear.

ii) Incised wound of size 6 cm x 0.6 cm x bone deep on right side of head 12 cm above right ear.

iii) Incised wound of size 9 cm x 1 cm x bone cut on dorsal side of left elbow-joint. The radius and ulna bone underneath was found fractured and blood vessels also cut.

iv) Incised wound of size 10 cm x 2 cm x bone cut on dorsal side of left forearm 13 cm below left elbow-joint. On dissection both bones found cut completely cut along with its structures

v) Incised wound of size 2.05 cm x 0.5 cm x bone deep on dorsal side of left wrist-joint.

vi) Incised wound of size 11 cm x 3 cm x bone cut on front of left wrist-joint. On dissection radius bone at lower end found fractured.

vii) Linear abrasion of size 10 cm x 0.2 cm on dorsal side of left upper thigh.

viii) Incised wound of size 8cm x 0.5 cm x bone deep on left side back, 10 cms below left shoulder-joint. On dissection the scapula bone was found fractured.

34. PW-6 Dr. R.P. Pandey has also found the following ante-mortem injuries on the dead body of the deceased Beyant Singh.

"i) Incised wound of size 12 cm x 1 cm x bone cut on left side head, 10 cms above left ear, brain material was coming out from the wound;

ii) Incised wound of size 9 cm x 0.5 cm x bone deep on left side head; 3 cm above injury no.1

iii) Incised wound of size 10 cm x 0.5 cm x bone deep on right side head; 12 cm above right ear.

iv) Incised wound of size 17 cm x 0.6 cm x bone deep on outer side of left arm; and elbow joint upto forearm left side on dissection. Radius bone found fractured.

v) Punctured wound of size 4.5 cm x 2 cm x chest cavity deep on right side back; 4 cm below lower base of neck back side.

vi) Multiple small abrasions over an area of 4 c.m. x 2 c.m. on front of left leg. 6 c.m. below left keen joint. 7 th and 8th rib fractured on right side. Chest cavity containing 2 litre clotted and hemorrhagic blood. Right lung punctured.

35. PW-6 Dr. R. P. Pandey has opined that Amrik Singh died due to shock and haemorrhage caused by ante-mortem injuries and proved post-mortem report (Ext Ka-17). He has also opined that Beyant Singh died due to coma as a result of head injury sustained by him. He has proved post-mortem report (Ext Ka-18). He has further opined that both the deceased could have sustained these injuries on 12.07.1988 at 6.00 p.m. inflicted by sharp edged weapon such as sword, kanta.

36. PW-6 Dr. R. P. Pandey has proved injury report as Ext Ka-19 and Supplementary report (Ext Ka-20) regarding injured Darshan Singh son of Dharam Singh and his X-ray report (Ext Ka-4) has been proved by Dr. S.K. Tiwari PW 4/1.

37. It is pertinent to mention here that learned defence counsel has not cross-examined PW-6 Dr. R.P.Pandey. No material contradiction was elicited on behalf of the appellants by learned defence counsel during cross-examination of PW-4/1 Dr. S.K.Tiwari. He has only put forth injury reports of accused Pooran Singh, Darshan Singh, Karnail Singh and Rakshpal Singh, during his cross-examination. PW-4/1 has proved this fact that on 13.07.1988 at 01.15 p.m. he examined Darshan Singh son of Kundan Singh and found following injuries:

(1) Incised wound of size 5.5cm x 2.5 cm x bone deep on upper part of right "pakhauda" (shoulder), margin sharp are clear cut (2) Linear abrasion of size 1.5 cm on right shoulder.

(3) Incised would of size 3 cm x 0.5 cm x muscle deep on the dorsal of right hand between the webs of thumb and index finger. Margins were sharp and clear cut.

(4) Abrasion of size 1 cm x 1 cm on the outer surface of lower part of left thigh just above knee.

He has proved injury report of Darshan Singh son of Kundan Singh as Ext Kha-2. He has stated that Darshan Singh son of Kundan Singh sustained total four injuries.

38. PW-4 has also proved injury report of Rakshpal Singh as Ext Kha-3 and stated that on 13.07.1988 at 12.15 p.m. he medically examined him and found following injuries:

(1) Incised wound of size 3 cm x 1 cm x muscle deep along with tailing on right side of back of neck margins sharp and clean cut.

(2) Incised wound of size 13cm x 7cm muscle deep along with margin sharp and clean cut on lateral side of neck and on right side face tailing was present.

(3) Incised wound of size 2cm x 0.5 cm x muscle deep on the dorsam of right angle of mandibal.

Injury no.2 was kept under observation. Injury no.1 and 3 were found simple. He has proved injury report as Ext Kha-3.

39. PW4/1 has proved injury report Ext Kha-5 of co-accused Karnail Singh and medically examined on 13.07.1988 at 01.45 p.m. The following injury was found: stab wound of size 1cm x 05. cm x 3 cm deep on outer back of middle of left arm, margin are sharp and smooth. Injury was of simple in nature, one day old.

40. Dr. S. K. Tiwari PW-4/1 has also medically examined Pooran Singh at 12.30 p.m. and found the following injuries and proved Ext Kha-4:

1- Lacerated wound of size 5cm x 1cm x sharped x bone deep on top of head

2. Abrated contusion of size 3 cm x 0.5 cm on the back of top of head

3. Multiple firearm wounds of entry on head, left eye (linear eye lid) in front of neck and left side of chest front of neck and shoulder each measuring 0.2cm x 0.2 cm. No blackening, tatooting present. X-ray was advised.

4. Abrasion of size 4 cm x 1 cm on the left side of abdomen. 7 cm above from umbilicus.

The injury no.1 and 3 were kept under observation. X-ray of skull was advised. All injuries might be caused by firearm.

41. We have perused evidence of PW-1 Ranjeet Singh-complainant and PW-2 injured Darshan Singh, and considered injuries sustained by them.

42. PW-1 complainant has adduced his evidence corroborating the facts narrated by him in his written report and proved this fact that accused Darshan Singh was ploughing filed of Saheb Singh and his father Kundan Singh was cutting off "maind" (boundary of agricultural field). His maternal uncle Beyant Singh raised protest against cutting of "maind" saying that they cultivated the plot, after Beyant Singh had planted/reaped paddy crop and thereby they caused damage to the harvest by crossing the field and also by bullocks. He also forbade them to cut off the "maind". Some altercation ensued.

43. PW-1 Ranjeet Singh has also stated that he persuaded Beyant Singh to return back at "Jhala". Beyant singh was mending the "maind" on Northern chak at 6.00 p.m. and Amrik Singh was ploughing the field by the plough. Darshan Singh had gone there to call Beyant Singh to cut fodder. In the meanwhile, Kundan Singh had wielded Barchha, Darshan Singh son of Kundan Singh and Rakshpal Singh wielded swords and Pooran Singh wielded Kanta and co-accused Karnail Singh wielded gun, came there and threatened both the deceased and Darshan Singh to eliminate them by saying that they are harassing them. Karnail Singh shot fire on stomach of Beyant Singh. The deceased Beyant Singh fell down at Chak Road.

44. PW-1 has also stated that Amrik Singh was having "danda", which was used by him for his defence. Later on he snatched the sword from accused and used it for his defence. PW-1 has further stated that accused persons again snatched sword from the deceased Amrik Singh and assaulted him. The appellants and co-accused persons assaulted both the deceased Beyant Singh and Amrik Singh and the injured Darshan Singh. PW-1 has also proved this fact that appellants while assaulting the aforesaid persons. His father, maternal-grand-mother, maternal Aunts and Hem Singh reached at the place of occurrence and witnessed the incident.

45. PW-1 in his detailed cross-examination has again reiterated the facts and circumstances in which the appellants and co-accused persons assaulted both the deceased and the injured Darshan Singh. Karnail Singh shot fire two in air and one stuck the deceased Beyant Singh. PW-1 has disclosed this fact that during course of incident he was at a distance of 15-20 paces from his maternal uncles. He has refuted suggestion given by the learned defence counsel that as per defence version he, Amrik singh, Beyant Singh, Darshan Singh and Malook Singh armed with weapons attacked Kundan Singh and Darshan Singh in the field of Saheb Singh and Kundan Singh and Darshan Singh used their swords in defence and caused injuries to both the deceased and the injured Darshan Singh son of Dharam Singh. No oral evidence was adduced on behalf of the appellants and co-accused persons to prove their defence version. They only relied upon the injury reports proved by witness PW-4/1 Dr. S.K.Tiwari and written report Ext Kha-1 lodged by Kundan Singh,co-accused.

46. PW-1 in his cross-examination again reiterated that the deceased Amrik Singh first defended with a stick and then he snatched sword from some accused. PW-1 has proved his written report. He dictated written report to Gurdeep Singh and lodged F.I.R. at police station Mailani. He brought the deceased Amrik Singh and injured Darshan Singh at hospital by Tractor Trolley. After admission of injured, he lodged the F.I.R. of this case.

47. PW-1 Ranjeet Singh and PW-2 Darshan Singh during their cross-examination has disclosed the topography of their agricultural field and agricultural field of Saheb Singh, which was taken by Kundan Singh and Darshan Singh on "theka"/lease. They have also disclosed this fact that Saheb Singh owned two and half acre agricultural field in between agricultural land of PW-2 and his brothers and agricultural land owned by Kundan Singh and his son Darshan Singh.

48. Both witnesses PW-1 and PW-2 have refuted this suggestion that PW-2 Darshan Singh and his brothers, the deceased Beyant Singh and Amrik Singh were interested to purchase agricultural field of Saheb Singh, whereas co-accused Kundan Singh and Darshan Singh took this agricultural field of Saheb Singh on "tehka"/lease. Kundan Singh and Amrik Singh were ploughing land of Saheb Singh from one and half years ago.

49. PW-1 in his cross-examination has specifically stated that Kundan Singh was cutting Maind and Darshan Singh was ploughing agricultural field of Saheb Singh at 04.00 p.m. on the date of occurrence. The water was filled in the land and it was ploughed by Darshan Singh co-accused. At this point of time PW-1, the deceased Beyant Singh, co-accused Kundan Singh and Darshan Singh were present only.

50. PW-2 injured Darshan Singh has specifically stated in this cross-examination that he was not present at 4.00 p.m. when an altercation ensued between deceased Beyant Singh, co-accused Kundan Singh and Darshan Singh regarding cutting of Maind by Kundan Singh. There is no material contradiction in statement of PW-1 and PW-2 regarding the fact disclosed by PW-1 that at 4.00 p.m. on the date of incident Kundan Singh was cutting Maind and Darshan Singh was ploughing agricultural field of Saheb Singh. PW-2 injured got information regarding this incident occurred at 4.00 p.m. from PW-1 Ranjeet Singh and his brother Beyant Singh. He was not present at this point of time.

51. PW-1 in his cross-examination has stated that graze was sowed in agricultural field by his maternal uncle and some graze was cut 04-05 days ago. PW-1 has also stated that his maternal uncle ploughed water filled agricultural land since 6.00 a.m. . It was stopped at 11.30, then again it was done at 4-4.30 p.m. and at this point of time an altercation ensued between Beyant Singh and co-accused Kundan Singh and Darshan Singh. PW-1 has specifically stated that Amrik Singh was ploughing his land/Chak ad-measuring 13-14 acre owned by Kundan Singh was situated there and "maind" was adjacent to agricultural field, in which, Amrik Singh was ploughing water filled land. Some part of agricultural land of Kundan Singh admeasuring 02-03 acre was vacant and in the remaining part of his land rice was reaped and in Northern-Western side "jhala" of Kundan singh was situated, where Kundan Singh his brothers Raksh Pal Singh, Karnail Singh and Darshan Singh were residing.

52. Kundan Singh usually reach at chak road, through his vacant land and from its (chak road) Southern side they reached in agricultural field of Saheb Singh. In some part of this land graze and sugar cane crop was standing and some part was vacant, which was ploughed by Darshan Singh son of Kundan Singh at 4.00 p.m.

53. PW-1 has further stated in his cross-examination that Kundan Singh was cutting Maind and making it thin in land of Saheb Singh and in this regard an altercation was occurred at 4.00 p.m. with Beyant Singh. Agricultural field of Beyant Singh was adjacent to this Maind on Western side. He has specifically stated that he apprised the Investigating Officer the place where Maind was cut by Kundan Singh. He was present when the Investigating Officer prepared Site Plan, therefore, it may be fault of the Investigating Officer that he did not mention the place where Maind was cut by Kundan Singh.

54. PW-1 has refuted this suggestion that Kundan Singh never cut any Maind and no altercation or incident of abuse occurred at 4.00 p.m. and he mentioned this fact in his written report with due consultations and deliberations. He has again reiterated in his cross-examination that Darshan Singh son of Kundan Singh was ploughing land of Saheb Singh with "Hull"/plough and Kundan Singh was cutting "maind", he (Kundan Singh) was not ploughing this land. At this point of time PW-1 and his maternal uncle Beyant singh, the deceased were present and went in agricultural field of Saheb Singh to oppose conduct of Kundan Singh. Kundan Singh ,Darshan Singh and Beyant Singh abused each other at this point of time.

55. PW-1 has mentioned in his cross-examination that when incident occurred again at 6.00 p.m. Amrik Singh and Beyant Singh and Darshan Singh were present in their agricultural field situated on Northern Side. His father Malook Singh was present at house of his maternal uncle. He has refuted this suggestion that he, his father Malook Singh both the deceased Amrik Singh and Beyant Singh and Darshan Singh injured PW-2 went in the agricultural field of Saheb Singh, where Kundan Singh was present. They wanted that Kundan Singh should leave agricultural field of Saheb Singh and they armed with weapons assaulted appellants and co-accused persons.

56. He has mentioned that his village is situated at a distance of 5-6 kilometer from Balarpur and Saheb Singh was resident of Mahertala, which was situated at a distance of one or one and half kilometer from Balarpur. He has stated that Saheb Singh has expired, but he was alive on the date of incident.

57. In his examination-in-chief PW-1 has stated that his maternal uncle owned 40-50 acres agricultural land and he helped them for ploughing and sowing this agricultural land. He was present in village Balarpur at house of his maternal uncle from 12 days ago and his father Malook Singh came there on the date of incident. Wife of his maternal uncle, Beyant Singh, Amrik Singh, Darshan Singh were also present on their "jhala". Therefore, there was no occasion for both the deceased Beyant Singh and Amrik Singh and injured PW-2 Darshan Singh to commit any incident with the appellants and co-accused persons to compel them to leave land of Saheb Singh.

58. Saheb Singh was competent witness in this regard to prove that whether maternal uncles of PW-1 were interested to get agricultural land of Saheb Singh or not, but Saheb Singh has expired and he could not be produced during course of trial.

59. PW-1 has accepted this fact that co-accused Kundan Singh lodged F.I.R. on 12.07.1988 regarding incident dated 12.07.1988 in which he, his father and Darshan Singh are accused. This cross case was being tried by the trial Court on the date of recording of his cross-examination dated 07.09.1994. He has further stated that co-accused Kundan Singh, Darshan Singh and Karnail Singh were murdered after some months of this incident. He and his father are accused in this case also.

60. Therefore, it reveal that there is chain of murder between both the parties and trial Court has found incident of both the crimes occurred in free fight between both the parties in correct perspectives.

61. PW-1 in his cross-examination has given details of incident occurred at 6.00 p.m. on the date of incident. He has stated that the deceased Beyant Singh was strengthening Northern Maind, adjacent to the agricultural field of Kundan singh, so that water filled in his agricultural field could not flow in the agricultural field of Kundan Singh. He has also clarified that Amrik Singh was ploughing this agricultural field filled with water for reaping rice. Mud was on his hands, legs and may be on clothes. He and his father did not enter in this agricultural field ploughed by Amrik Singh.

62. PW-1 has mentioned that Beyant Singh, Amrik Singh both the deceased and injured Darshan Singh PW-2 were present on chak road at the point of time of incident. They were at a distance of one or two paces in between them when accused Karnail Singh fired shot, which did not stuck any of the victim. Karnail Singh afterwards fired two shots in the air. After first fire the appellants and co-accused persons assaulted the victims with Kanta, Ballam and sword.

63. PW-1 has further clarified that Beyant Singh saved him from fire shot by karnail Singh by laying on the ground. This fire was shot by Karnail Singh by standing on chak road. His maternal uncles were going towards Northern side of chak road. Karnail Singh was present on the Northern side and he shot fire in the Southern side. He has refuted this suggestion that his maternal uncle Darshan Singh was wielding gun and he fired shot. He has also refuted this suggestion that none of the accused persons had wielded gun.

64. PW-1 in his cross-examination has also stated that the deceased Amrik Singh saved him with danda while he was on chak road. Darshan Singh PW-2 was also at a distance of one pace from him and Beyant Singh was also present at the same distance from Amrik Singh. PW-1 has stated that he was present on chak road at a distance of 15-20 paces and his father Malook Singh also reached there. He, his father Malook Singh and maternal uncle Darshan Singh and Beyant Singh were empty hands. Amrik Singh prevented blow of Kanta and sword with his danda. He could not disclose this fact that Amrik Singh assaulted which of the accused with his danda. He also does not remember that Amrik Singh snatched sword from which accused. He has no knowledge that on 13.07.1988 Darshan Singh, Pooran Singh, Raksha Pal Singh, Karnail Singh were admitted in Lakhimpur Kheri hospital.

65. PW-1 in his cross-examination on 08.09.1994 has clarified that witness Hem Singh also reached in the beginning of assault made by accused persons on victims. PW-1 could not read his written report and stated that he is not well read. It is mentioned in written report on his behalf by scribe Gurdev Singh that Karnail Singh shot fire during the course of incident. Co-accused Karnail Singh in which manner fired shot has been described by PW-1 in his cross-examination in reply to question put forth by learned defence counsel. Therefore, if details of fire shot in air, has not been written in Ex-Ka-1 (written report) then it cannot affect the prosecution adversely and it cannot be categorised as an improvement of facts.

66. PW-1 has further stated in his cross-examination that in the beginning of the incident only Beyant Singh fell down and after sustaining injuries Beyant Singh, Amrik Singh, Darshan Singh fell down. They stayed there for 15 to 20 minutes, then the victims were brought by Tractor Trolley first at Bankeganj Hospital, then at Gola hospital. On the way to Gola Hospital, Amrik Singh expired near Pratappur. Darshan Singh was admitted in Gola hospital.

67. PW-1 has specifically stated that when they reached at Bankeganj hospital, Amrik Singh was alive, where first aid was given to him. His father stayed with dead body of Beyant Singh. PW-1 has mentioned that he reached Gola at 10.15 p.m.. After one hour-quarter past an hour, he went to lodge F.I.R. at police station Mailani. Amrik Singh expired before reaching Gola hospital. He has also stated that Sardar Singh meet him at Gola hospital. He, Sardara Singh and Gurdev Singh went at Mailani police station by motorcycle of Sardara Singh. Ext Ka-1 written report was prepared by Gurdev Singh.

68. PW-1 has specifically stated that Hem Singh witnessed the incident, but he did not accompany him on Tractor trolley with victims and he brought victims at hospital. PW-2 has stated in his examination-in-chief that Hem Singh reached during course of incident at place of occurrence. At the point of time of recording of his statement Hem Singh was aged 100 years. He was unable to move and was lying on cot. Therefore, Hem Singh could not be produced by the prosecution due to his ill health. This fact that Hem Singh was not examined during course of trial cannot be affected prosecution adversely.

69. PW-1 in his cross-examination dated 08.09.1994 has further stated that blood stained swords were recovered by the police personnel at 9.00 to 9.30 a.m. from "jhala" of Kundan Singh. He has stated that blood stained swords were not recovered from his house. PW-1 lodged F.I.R. at 3.00 a.m. at night and he had proceeded along with police personnel by Jeep at 4.30 a.m. for place of occurrence. He is also witness of inquest proceedings of the deceased Beyant Singh. He has stated that the Inquiry Officer returned back from village at 1.30 to 2.00 p.m.

70. PW-1 has specifically stated that Kundan Singh did not meet him at police station or during inquest proceedings. He has refuted this suggestion that both blood stained swords were recovered from house of PW-1. He has also refuted this suggestion that he, his father Malook Singh, deceased Beyant Singh armed with sword and Amrik Singh armed with Ballam and Darshan Singh (PW-2) armed with gun, went in agricultural field of Saheb Singh, where Kundan Singh and Darshan Singh were working they abused them and assaulted them. On hearing noises Raksha Pal Singh, Pooran Singh, Karnail Singh also reached at the place of occurrence to save them.

71. He has refuted this suggestion that Darshan Singh (PW-2) fired shot from gun, which stuck to co-accused Kundan Singh and appellant Pooran Singh and they inflicted injuries to aforesaid accused persons. He has also refuted this suggestion that Kundan Singh and Darshan Singh accused persons gave blow of swords on victims in their defence. He has also refuted this suggestion that Kundan Singh went at police station Mailani to lodge F.I.R., but his report was not lodged in his influence by police personnel. He was detained and challaned on 15.07.1988.

72. PW-1 Ranjeet Singh did not know whether Kundan Singh and his brothers had given earnest money to Saheb Singh for purchase of his 2.5 acres land adjacent to their agricultural fields. He has also stated that the does not know whether Saheb Singh owned other agricultural land in village Balarpur except 2.5 acres land, which was ploughed by Kundan Singh and Darshan Singh.

73. On perusal of examination-in-chief and cross-examination of PW-1 his presence has been proved by him during both incidents occurred at 4.00 p.m. to 6.00 p.m.. On the date of incident he came at house of his maternal uncles, both the deceased Beyant Singh and Amrik Singh and injured PW-2 Darshan Singh 12 days ago. He remained in Balarpur for 20-25 days after incident also. The appellants and co-accused persons has accepted his presence in Balarpur on the date of incident by giving suggestion that he participated in alleged assault made on appellants and co-accused persons.

74. PW-1 has given minute details of both the incident and active participation of accused persons in the incident committed by appellants and co-accused with both the deceased Beyant Singh and Amrik Singh and injured PW-2 Darshan Singh. He has proved this fact that at 4.00 p.m. there was an altercation between Beyant Singh and accused persons Kundan Singh and his son Darshan Singh regarding cutting of "maind" by Kundan Singh. The nature of injuries sustained by both the deceased and PW-2 injured corroborates statement of PW-1 that appellants and co-accused persons assaulted with sharp edged weapons mercilessly. Karnail Singh also used gun and shot three fires, but it was luck of Beyant Singh that he could not sustain firearm injury, because he fell down on the ground during course of incident to save him. He has also proved this fact that Karnail Singh while firing shot he was on Northern side and Pooran Singh was chasing both the deceased Beyant Singh and Amrik Singh and injured PW-2 Darshan Singh towards southern side and he was 7-8 paces ahead of Kearnail Singh according to injured PW-2. Therefore, finding of learned trial Court that prosecution case was not clear about firearm injury sustained by co-accused person Pooran Singh is misconceived and is not recorded in correct perspectives.

75. PW-2 is the Darshan Singh son of Dharam Singh, who sustained injuries during course of incident committed by the appellants and co-accused persons. He has also proved this fact that he was beaten up and assaulted by the accused persons on chak road on the Eastern side of his "jhala". The appellant Pooran Singh has accepted in his statement recorded under Section 313 Cr.P.C. that PW-1 Amrik Singh often visited their village for the purpose of ploughing of agricultural field of his maternal uncles. He has stated that he went at the place of occurrence to call Beyant Singh to cut grass/graze. When he reached at place of occurrence, Kundan Singh had wielded Barchha, Rakshpal Singh and Darshan Singh wielded swords, Karnail Singh wielded gun, Pooran Singh wielded Kanta. Beyant Singh and Amrik Singh tried to run towards chak road, when they reached at chak road. Karnail Singh opened fire. Pooran Singh came between the Karnail Singh and Beynat Singh. This fact was also stated by PW-1 when Pooran Singh came between Karnail Singh and Beyant Singh, Beyant Singh fell down on the place of occurrence and expired. Amrik Singh and injured PW-2 Darshan Singh was also assaulted by the appellants and co-accused persons. PW-1 Ranjeet Singh brought the deceased Amrik Singh and this witness PW-2 at Bankeganj hospital, where the doctor was not available, therefore, they were taken to Gola. PW-2 has stated that Amrik Singh died on the way and he was admitted in the Gola hospital.

76. The injured PW-2 Darshan Singh in his cross-examination disclosed topography of agricultural filed of appellants and Saheb Singh. Kundan Singh and his son Darshan Singh cultivated this agricultural field of Saheb Singh from two-three years ago. PW-2 has specifically stated that at the point of time of incident they were not ploughing the filed. He was apprised by PW-1 Ranjeet Singh that two hours prior on the date of incident, there was an altercation between Beyant Singh, Kundan Singh and his son Darshan Singh.

77. PW-2 has also disclosed the reason why he reached on the place of occurrence by stating that he was unable to cut graze alone. Therefore, he went to call Beyant Singh to join him. He has also stated that Karnail Singh shot fire first and then the appellant and other accused persons assaulted them with swords and their weapons. PW-2 has refuted the suggestion based on defence version of the appellants and co-accused persons by stating that he, Beyant Singh and Amrik Singh had not assaulted Kundan Singh and his son Darshan Singh, while they were ploughing field of Saheb Singh.

78. Since co-accused Kundan Singh has mentioned in his F.I.R. that Ranjeet Singh and Malook Singh along with Beyant Singh, Amrik Singh and PW-2 Darshan Singh reached and assaulted Rakshpal Singh, Pooran Singh, Karnail Singh and Darshan Singh son of Kundan Singh. Therefore, at the place of occurrence presence of PW-1 Ranjeet Singh, and injured PW-2 Darshan Singh cannot be doubted.

79. PW-2 has specifically stated in his cross-examination that he apprised the Investigating Officer that when Karnail Singh fired shot then Pooran Singh was ahead 7-8 paces to him in Southern side. He has refuted this suggestion that he was telling this fact of on someone advice. The presence of PW-2 has been established by him for the purpose of calling Beyant Singh for cutting fodder in the nearby agricultural field. In his cross-examination he has specifically stated that he went at the place of occurrence to call Beyant Singh for cutting fodder/graze. Graze/chari was sowed at a distance of 50-60 paces from his "jhala" on Western side in agricultural field ad-measuring 14 acres. He has stated that chari was sowed in one acre of this agricultural field. This chari was to be cut in 14-15 Bandals and he was unable to cut this graze alone, therefore, he went to call Beyant Singh for this purpose.

80. PW-2 has further stated that PW-1 Ranjeet Singh often drove tractor for ploughing and grazed cattle. He was taking food at this point of time and he was not free to perform work of cutting graze.

81. PW-2 in his cross-examination has described topography and measurement of agricultural field of Saheb Singh, which was being ploughed by Darshan Singh and in which Kundan Singh was cutting Maind. He has also disclosed topography of his agricultural field, chak road and agricultural field of Kundan Singh and his son Darshan Singh. He has clarified that Kundan Singh and Darshan Singh were ploughing agricultural field of Saheb Singh from two and half-three- years ago. He has refuted this suggestion that since, on three sides of agricultural land of Saheb Singh, their agricultural land was situated, therefore PW-2 and Beyant Singh wanted to take possession of land of Saheb Singh.

82. PW-2 has clarified this fact that he received information from PW-1 Ranjeet Singh and Beyant Singh that two hours prior to the incident occurred at 6.00 p.m. Kundan Singh and Darshan Singh had altercation with Beyant Singh. At this point of time he was not present. Beyant Singh and bhanja PW-1 apprise him about incident occurred with Beyant Singh two hours prior to this incident. Therefore, contradiction appeared in his statement that Kundan Singh and his son Darshan Singh were ploughing agricultural field of Saheb Singh is not material, because he was not present in agricultural field of Saheb Singh along with Beyant Singh and PW-1 Ranjeet Singh. He has refuted this suggestion that he went at the place of occurrence wielding gun and his statement that he went to call Beyant Singh for cutting graze/fooder was incorrect.

83. PW-2 in his cross-examination clarified facts and circumstances in which Ranjeet Singh and his father Malook Singh reached at the place of occurrence after hearing noises. He has refuted this suggestion that he, PW-1 Ranjeet Singh, his father Malook Singh, Beyant Singh and Amrik Singh went at the agricultural field of Saheb Singh. He has no knowledge that Kundan Singh sustained firearm injury from pallets. He has denied this fact that he fired shot on Pooran Singh. He has further stated that gun of Karnail Singh was already loaded, who fired shot, then he again loaded gun and again fired shots, but no body on his side (PW-2) sustained firearm injuries. Beyant Singh and Amrik Singh was a distance of 20-22 paces and he was at a distance of 2-3 paces from them. Karnail Singh fired one fire towards them, other two fires were shot by him in the air. After first fire blow of swords were made by the accused persons.

84. PW-2 has further stated that Amrik Singh was saving himself with danda and sword. Karnail Singh did not fire further during course of incident. PW-2 has also stated that they had not wielded swords normally. They did not have swords. Ranjeet Singh and Malook Singh were not having sword or sticks. PW-2 has also disclosed this fact that Kundan Singh had wiedled Barchha, Darshan Singh wielded sword. Beyant Singh sustained injury from barchha also. Kundan Singh and Darshan Singh used their weapons.

85. PW-2 has specifically stated that Hem Singh son of Singharha Singh, Darshan Singh son of Mangal Singh reached at the place of occurrence, when incident was over and accused persons had fled away. He has stated that Beyant Singh was lying on chak road. Amrik Singh did not go at Jhala. Ladies of family of accused persons did not reach at the place of occurrence. He has further stated that after one and half-two hours he went along with Mangal Singh son of Banta Singh, Darshan Singh son of Singharha Singh, Swaran Singh, Kukku and Saheb Singh sons of Gurbachan Singh by tractor trolley in injured state along with both the deceased.

86. PW-2 has stated that chawkidar of his village resides at village Hazratpur, which is at a distance of four kilometer from his village. His associates advised that they were going to Bankeganj therefore from there some conveyance would be available therefore, they would go Mailani, hence chaukidar was not called by them. He has stated that Mailani is located at a distance of 36 kilometer from Bankeganj and from his village it is at a distance of 40 Kilometer. Bankeganj was located at a distance of 04 Kilometer from his village.

87. PW-2 has further stated that he reached at 9.00 to 9.30 p.m. at Bankeganj. He had no information that accused persons went for lodging F.I.R. at Police Station Mailani. They went at Gola hospital from Bankeganj. He was admitted there. He became and remained unconscious for three days, then Ranjeet Singh PW-1 met him in the hospital. He remembered that he was admitted in hospital for 25-30 days.

88. PW-2 has refuted this suggestion that Kundan Singh, Darshan Singh were ploughing agricultural field of Saheb Singh at 6.00 p.m. He along with Beyant Singh, Amrik Singh, Ranjeet Singh and MalookSingh armed with weapons went there and abused them and told them to leave the aforesaid agricultural field. Karnail Singh armed with sword, Pooran Singh and Rakshpal Singh armed with lathi went at this place for saving Kundan Singh and his son Darshan Singh.

89. PW-2 has also refuted this suggestion that he fired shot on Kundan Singh who sustained firearm injury and second fire stuck on face of Pooran Singh. He has further denied this suggestion that he and the deceased sustained injuries in agricultural field of Saheb Singh and Kundan Singh his son Darshan Singh and Karnail Singh used swords in their defence therefore, PW-2 and both the deceased sustained injuries.

90. PW-2 has further refuted this suggestion that they assaulted Kundan Singh, his son Darshan Singh, Pooran Singh, Karnail Singh and Rakshpal Singh by giving blow by their weapons. He has denied this fact the he was not ploughing water filled agricultural land and no altercation was occurred with the deceased Beyant Singh and report was lodged with consultation of residents of Gola and police personnel.

91. Therefore, PW-2 injured has proved this fact that the appellants and co-accused persons assaulted him with sharp edged weapons and he Beyant Singh, or Amrik Singh had not sustained firearm injuries from fires shot by Karnail Singh. He has also denied this fact that he shot fire on co-accused Kundan Singh and appellant Pooran Singh. On the other hand co-accused Kundan Singh (since dead) had wielded barchha, Rakshpal Singh (appellant) and Darshan Singh (since dead) wielded sword and Pooran Singh (appellant) wielded Kanta and Karnail Singh (since dead) weilded gun and assaulted them on the date of incident at 6.00 p.m.. Prior to this incident Kundan Singh and his son Darshan Singh had a altercation with the deceased Beyant Singh on cutting "maind" at 4.00 p.m.. PW-2 came to know about this incident while PW-1 Ranjeet Singh and deceased Beyant Singh apprised him at 6.00 p.m. during the incident.

92. The nature of injuries sustained by PW-2 corroborates his statement that both the appellants and co-accused persons actively participated in the incident and assaulted PW-1 and both the deceased Beyant Singh and Amrik Singh.

93. Since witnesses PW-1 and PW-2 have clarified that while Karnail Singh fired shot towards victims, Pooran Singh was ahead of him in Southern direction on chak road. Hence, possibility cannot be ruled out that accused Pooran Singh sustained firearm injury from fire shot by Karnail Singh.

94. On the other hand Learned counsel for the complainant and learned A.G.A. have argued that in cross case PW-1 Dharshan Singh has been convicted for offence under Section 307 I.P.C. by the trial Court. As per version of cross case, registered on the basis of written report (Ext Kha-1) lodged by co-accused Kundan Singh, PW-2 Darshan Singh also shot fire during course of incident by which Kundan Singh and Pooran Singh sustained fire arm injuries.

95. Therefore, the aforesaid facts and circumstances indicates that both the parties indulged and participated in free fight during course of incident. Hence, learned trial Court has recorded finding in correct perspectives that present case and cross case are the case of free fight occurred on the date of occurrence between the parties. In this regard following expositions of law are relevant:

In the case of Puran Vs. State of Rajasthan reported in (1976) 1 SCC 28, the Hon'ble Apex Court has observed as under:

4. Now, two important circumstances clearly emerge from the evidence and they are based on concurrent findings of fact recorded by the learned Additional Sessions Judge as well as the High Court. First, this was a case of sudden mutual fight between the parties and there could, therefore, be no question of invoking the aid of Section 149 for the purpose of imposing constructive criminal liability on the appellant. The appellant could be convicted only for the injuries caused by him by his individual acts. Secondly, the fight between the parties took place in one stage and not in two stages as deposed to by the prosecution witnesses. There was no break of ten minutes during which the appellant and Sohan went to the village and came back armed with axes and accompanied by Ramnath and Ramu. The version of the prosecution that the appellant and Sohan proceeded to the village and returned after ten minutes armed with axes was clearly not believable. The appellant and Sohan continued in the fight without any interruption. Once these two circumstances are accepted, it becomes impossible to sustain the conviction of the appellant. When the fight began, it was the case of the prosecution that the appellant was armed with adantli and it was with the dantli that he gave a blow on the backside of the head of Lalu. But the injury, which resulted in the death of the deceased Bhanwaria, was, according to the prosecution, caused by an axe blow. The evidence of Dr Duggar, who examined the deceased Bhanwaria and performed the post-mortem examination of his dead body, also shows that the injury received by the deceased Bhanwaria was a severe injury on the left frontal parietal and temporal region resulting in communited fracture of left temporal and parietal bones and it appeared to Dr Duggar that this injury must have been caused by a heavy blow with some sharp cutting object like an axe, since the injury had gone "deep into the brain matter". We thus have the position that the injury resulting in the death of the deceased Bhanwaria was caused by a heavy blow with an axe while the appellant was armed only with a dantli. Obviously, the appellant could not have been responsible for causing the fatal injury to the deceased Bhanwaria, unless it could be shown that at some stage the appellant picked up an axe. It was precisely for this reason, in order to implicate the appellant by fobbing off on him the murderous assault on the deceased Bhanwaria, that the prosecution witnesses invented the story that the fight was in two stages and after the first stage was over, the appellant and Sohan went to the village end returned after ten minutes armed with an axe. But this story was manifestly incorrect as it did not find even the faintest echo in the first information report lodged by Lalu immediately after the incident and in fact both the learned Additional Sessions Judge and the High Court disbelieved it. If this story of the prosecution explaining how the appellant came by an axe is disbelieved, it is obvious that the appellant, who was armed with a dantli, could not have inflicted the fatal blow on the head of the deceased Bhanwaria. In fact this story appears to have been invented by the prosecution witnesses with a view to falsely implicating the appellant in the offence of causing the death of the deceased Bhanwaria. The falsity of this story reflects adversely on the prosecution case that it was the appellant who gave an axe blow on the head of the deceased Bhanwaria resulting in his death. We do not think that the evidence led on behalf of the prosecution is sufficient to establish beyond a reasonable doubt that the appellant was responsible for causing the death of the deceased Bhanwaria by giving an axe blow on his head.

In the case of Dwarka Prasad v. State of U.P., 1993 Supp (3) SCC 141, the Hon'ble Apex Court has observed as under:

10. A free fight is that when both sides mean to fight a pitched battle. The question of who attacks and who defends in such a fight is wholly immaterial and depends on the tactics adopted by the rival party. In such cases of mutual fights, both sides can be convicted for their individual acts. This position has been settled by this Court in the cases of Gajanand v. State of U.P. [AIR 1954 SC 695 : 1954 Cri LJ 1746] ; Kanbi Nanji Virji v. State of Gujarat [(1970) 3 SCC 103 : 1970 SCC (Cri) 520 : AIR 1976 SC 219] ; Puran v. State of Rajasthan [(1976) 1 SCC 28 : 1975 SCC (Cri) 750 : AIR 1976 SC 912] ; Vishvas Aba Kurane v. State of Maharashtra [(1978) 1 SCC 474 : 1978 SCC (Cri) 125 : AIR 1978 SC 414] . As such once it is established by the prosecution that the occurrence in question is result of a free fight then normally no right of private defence is available to either party and they will be guilty of their respective acts.

In the case of Vishvas Aba Kurane v. State of Maharashtra,(1978) 1 SCC 474, the Hon'ble Apex Court has observed as under:

9. The theory of free fight sought to be adumbrated on behalf of the appellants is also devoid of merit, for it is well settled that in a free fight, no right of private defence is available to either party and each individual is responsible for his own acts.

In the case of Kanwarlal v. State of M.P., (2002) 7 SCC 152, the Hon'ble Apex Court has observed as under:

9. Although there were serious contradictions in the evidence of the so-called eyewitnesses PWs 1, 6 and 7 in regard to the assault on deceased Bheru, one thing appears to be probable that Appellant 1 fired a gunshot on deceased Bheru causing his instantaneous death. It is on record, as found by the High Court on the basis of evidence that there was a free fight between two parties for quite some time and in that fight prosecution witnesses also received injuries. No offence was made out in convicting the appellants either under Section 34 or Section 149 IPC by the High Court. Under the circumstances, it appears that Appellant 1 fired a gunshot in a free fight suddenly under grave provocation when there was free fight between the parties for quite some time. In this situation, considering the facts and circumstances, we hold Appellant 1 guilty under Section 304 Part II IPC instead of Section 302 IPC. We are informed that he is in custody for over six years i.e. from 4-6-1996.

In the case of Kanbi Nanji Virji v. State of Gujarat, (1970) 3 SCC 103, the Hon'ble Apex Court has observed as under:

8. The High Court has found, in our opinion, rightly, that there was melee at the time of the incident and the two groups indulged in a free fight as a result of which four persons were injured on the side of the prosecution and two on the opposite side. A-1 and A-2 had sustained very serious injuries, several of which were incised injuries. At one stage it was thought that A-2 may not survive. His condition was so precarious that it became necessary to immediately operate upon him. The deceased Sabalsing had sustained two injuries only one out of them was a serious one. The other was a mere abrasion. The head injury proved fatal. Bhupatgar had received several injuries. Similarly PWs 5 and 6 had also received several injuries. Once we come to the conclusion that the injuries sustained by the persons were in the course of a free fight, as the High Court has come to, then only those persons who are proved to have caused injuries can be held guilty for the injuries caused by them.

In the case of Dashrath Singh v. State of U.P., (2004) 7 SCC 408, the Hon'ble Apex Court has observed as under:

19. The injuries of serious nature received by the accused in the course of the same occurrence would indicate that there was a fight between both the parties. In such a situation, the question as to the genesis of the fight, that is to say, the events leading to the fight and which party initiated the first attack assumes great importance in reaching the ultimate decision. It is here that the need to explain the injuries of serious nature received by the accused in the course of same occurrence arises. When explanation is given, the correctness of the explanation is liable to be tested. If there is an omission to explain, it may lead to the inference that the prosecution has suppressed some of the relevant details concerning the incident. The Court has then to consider whether such omission casts a reasonable doubt on the entire prosecution story or it will have any effect on the other reliable evidence available having bearing on the origin of the incident. Ultimately, the factum of non-explanation of injuries is one circumstance which has to be kept in view while appreciating the evidence of prosecution witnesses. In case the prosecution version is sought to be proved by partisan or interested witnesses, the non-explanation of serious injuries may prima facie make a dent on the credibility of their evidence. So also where the defence version accords with probabilities to such an extent that it is difficult to predicate which version is true, then, the factum of non-explanation of the injuries assumes greater importance. Much depends on the quality of the evidence adduced by the prosecution and it is from that angle, the weight to be attached to the aspect of non-explanation of the injuries should be considered. The decisions abovecited would make it clear that there cannot be a mechanical or isolated approach in examining the question whether the prosecution case is vitiated by reason of non-explanation of injuries. In other words, the non-explanation of injuries of the accused is one of the factors that could be taken into account in evaluating the prosecution evidence and the intrinsic worth of the defence version.

96. On the point of explanation of injuries sustained by accused the following exposition of law of Hon'ble Supreme Court is relevant:

Hon'ble Supreme Court in the case of Rajender Singh v. State of Bihar, (2000) 4 SCC 298, has held as under:

4. So far as the question whether non-explanation of the injuries on accused Rajender ipso facto can be held to be fatal to the prosecution case, it is too well settled that ordinarily the prosecution is not obliged to explain each injury on an accused even though the injuries might have been caused in the course of the occurrence, if the injuries are minor in nature, but at the same time if the prosecution fails to explain a grievous injury on one of the accused persons which is established to have been caused in the course of the same occurrence then certainly the court looks at the prosecution case with a little suspicion on the ground that the prosecution has suppressed the true version of the incident. In the case in hand accused-appellant Rajender had one penetrating wound, three incised wounds and one lacerated wound and of these injuries, the penetrating wound on the left axillary area in the 5th intercostal space ½″ × /3″ × /4″ was grievous in nature as per the evidence of the doctor, PW 3 who had examined him. On the basis of the evidence of PW 3 as well as PW 11 the courts have come to the conclusion that there is no room for doubt that the appellants and their men had injuries on their person on the date of the occurrence. The question, therefore, that remains to be considered is whether non-explanation of the said injuries on accused-appellant Rajender can form the basis of a conclusion that the prosecution version is untrue. In Mohar Rai and Bharath Rai v. State of Bihar [AIR 1968 SC 1281 : (1968) 3 SCR 525 : 1968 Cri LJ 1479] this Court had held that the failure of the prosecution to offer any explanation regarding the injuries found on the accused shows that the evidence of the prosecution witness relating to the incident is not true or at any rate, not wholly true and further, those injuries probabilise the plea taken by the accused persons. But in Lakshmi Singh v. State of Bihar [(1976) 4 SCC 394 : 1976 SCC (Cri) 671] this Court considered Mohar Rai [AIR 1968 SC 1281 : (1968) 3 SCR 525 : 1968 Cri LJ 1479] and came to hold that non-explanation of the injuries on the accused by the prosecution may affect the prosecution case and such non-explanation may assume greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution. The question was considered by a three-Judge Bench of this Court in the case ofVijayee Singh v.State of U.P.[(1990) 3 SCC 190 : 1990 SCC (Cri) 378] and this Court held that if the prosecution evidence is clear, cogent and creditworthy and the court can distinguish the truth from falsehood the mere fact that the injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence and consequently the whole case and much depends on the facts and circumstances of each case. In Vijayee Singh case[(1990) 3 SCC 190 : 1990 SCC (Cri) 378] the Court held that non-explanation of injury on the accused person does not affect the prosecution case as a whole.

5. This question again came up before a three-Judge Bench recently in the case of Ram Sunder Yadavv. State of Bihar [(1998) 7 SCC 365 : 1998 SCC (Cri) 1630] where this Court reaffirmed the statement of law made by the earlier three-Judge Bench in Vijayee Singh case [(1990) 3 SCC 190 : 1990 SCC (Cri) 378] and also relied upon another three-Judge Bench decision of the Court in Bhaba Nanda Sarma v. State of Assam[(1977) 4 SCC 396 : 1977 SCC (Cri) 602] and as such accepted the principle that if the evidence is clear, cogent and creditworthy then non-explanation of the injury on the accused ipso facto cannot be a basis to discard the entire prosecution case. The High Court in the impugned judgment has relied upon the aforesaid principle and examined the evidence of the four eyewitnesses and agreeing with the learned Sessions Judge come to the conclusion that the prosecution witnesses are trustworthy and, therefore, non-explanation of the injury in question cannot be held to be fatal, and we see no infirmity with the said conclusion in view of the law laid down by this Court, as held earlier. We, therefore, are not persuaded to accept the first submission of Mr Mishra, learned Senior Counsel appearing for the accused-appellants.

Hon'ble Supreme Court in the case of Kashiram v. State of M.P., (2002) 1 SCC 71 : 2002 SCC (Cri) 68 at page 81 has held as under:

20. At the hearing the learned counsel for the accused-appellants submitted that the factum of accused Prabhu having sustained serious injuries including those on vital parts of the body was well established and the trial court as also the High Court have not doubted such injuries having been received by the accused Prabhu in the same incident in which those on the side of the prosecution suffered the injuries and such injuries of Prabhu having not been explained by the prosecution witnesses, the prosecution story should have been discarded and all the accused persons should have been acquitted. In our opinion such a submission is too tall a submission and hence cannot be accepted. In State of U.P. v. Mukunde Singh[(1994) 2 SCC 191 : 1994 SCC (Cri) 473] it has been held that merely on the ground that the prosecution witnesses have not explained the injuries on the accused, the evidence of the prosecution witnesses ought not to be rejected outrightly; if the court finds it probable that the accused might have acted in exercise of right of self-defence, the court ought to proceed to consider whether they have exceeded the same. In Takhaji Hiraji v. Thakore Kubersing Chamansing[(2001) 6 SCC 145 : 2001 SCC (Cri) 1070] this Court has held that the court ought to make an effort at searching out the truth on the material available on record with a view to find out how much of the prosecution case was proved beyond reasonable doubt and was worthy of being accepted as truthful and the approach of rejecting the prosecution case in its entirety for non-explanation of the injuries sustained by the accused persons is erroneous. This Court further held: (SCC p. 154, para 17) "[I]t cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. Before non-explanation of the injuries on the persons of the accused persons by the prosecution witnesses may affect the prosecution case, the court has to be satisfied of the existence of two conditions: (i) that the injuries on the person of the accused were of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question. Non-explanation of injuries assumes greater significance when the evidence consists of interested or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution."

26)At least one of the persons of the prosecution party was armed with a sharp weapon with which was caused an incised wound on the head, a vital part of the body, coupled with fracture of frontal bone of accused Prabhu. One of the injuries caused to accused Prabhu could have been the result of a gunshot leaving a pellet embedded below mandible area. Other injuries caused to him could not have been self-inflicted. A grievous hurt was caused and therefore an apprehension that the prosecution party would persist in assault which could have resulted in further grievous hurt or death being caused was reasonably caused in the mind of accused Prabhu.

7.Coming to the question whether on the basis of a solitary evidence conviction can be maintained, a bare reference to Section 134 of the Evidence Act, 1872 (in short "the Evidence Act") would suffice. The provision clearly states that no particular number of witnesses is required to establish the case. Conviction can be based on the testimony of a single witness if he is wholly reliable. Corroboration may be necessary when he is only partially reliable. If the evidence is unblemished and beyond all possible criticism and the court is satisfied that the witness was speaking the truth then on his evidence alone conviction can be maintained. Undisputedly, there were injuries found on the body of the accused persons on medical evidence. That per se cannot be a ground to totally discard the prosecution version. This is a factor which has to be weighed along with other materials to see whether the prosecution version is reliable, cogent and trustworthy. When the case of the prosecution is supported by an eyewitness who is found to be truthful as well, mere non-explanation of the injuries on the accused persons cannot be a foundation for discarding the prosecution version. Additionally, the dying declaration was found to be acceptable.

8. Other plea emphasised related to alleged exercise of the right of private defence. Merely because there was a quarrel and two accused persons sustained injuries, that does not confer a right of private defence extending to the extent of causing death as in this case. Though such right cannot be weighed in golden scales, it has to be established that the accused persons were under such grave apprehension about the safety of their life and property that retaliation to the extent done was absolutely necessary. No evidence, much less cogent and credible, was adduced in this regard. The right of private defence as claimed by the accused persons has been rightly discarded.

The Hon'ble Supreme Court in the case of Chacko Vs. State of Kerala, (2004) 12 SCC 269 at page 73 has held as under:

7. Coming to the question whether on the basis of a solitary evidence conviction can be maintained, a bare reference to Section 134 of the Evidence Act, 1872 (in short "the Evidence Act") would suffice. The provision clearly states that no particular number of witnesses is required to establish the case. Conviction can be based on the testimony of a single witness if he is wholly reliable. Corroboration may be necessary when he is only partially reliable. If the evidence is unblemished and beyond all possible criticism and the court is satisfied that the witness was speaking the truth then on his evidence alone conviction can be maintained. Undisputedly, there were injuries found on the body of the accused persons on medical evidence. That per se cannot be a ground to totally discard the prosecution version. This is a factor which has to be weighed along with other materials to see whether the prosecution version is reliable, cogent and trustworthy. When the case of the prosecution is supported by an eyewitness who is found to be truthful as well, mere non-explanation of the injuries on the accused persons cannot be a foundation for discarding the prosecution version. Additionally, the dying declaration was found to be acceptable.

8. Other plea emphasised related to alleged exercise of the right of private defence. Merely because there was a quarrel and two accused persons sustained injuries, that does not confer a right of private defence extending to the extent of causing death as in this case. Though such right cannot be weighed in golden scales, it has to be established that the accused persons were under such grave apprehension about the safety of their life and property that retaliation to the extent done was absolutely necessary. No evidence, much less cogent and credible, was adduced in this regard. The right of private defence as claimed by the accused persons has been rightly discarded.

Hon'ble Supreme Court in the case of Surendra Paswan v. State of Jharkhand, (2003) 12 SCC 360 has held as under:

8. Non-explanation of injuries by the prosecution will not affect prosecution case where injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it outweighs the effect of the omission on the part of prosecution to explain the injuries. As observed by this Court in Ramlagan Singh v. State of Bihar [(1973) 3 SCC 881 : 1973 SCC (Cri) 563 : AIR 1972 SC 2593] prosecution is not called upon in all cases to explain the injuries received by the accused persons. It is for the defence to put questions to the prosecution witnesses regarding the injuries of the accused persons. When that is not done, there is no occasion for the prosecution witnesses to explain any injury on the person of an accused. In Hare Krishna Singh v. State of Bihar [(1988) 2 SCC 95 : 1988 SCC (Cri) 279 : AIR 1988 SC 863] it was observed that the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. If the witnesses examined on behalf of the prosecution are believed by the court in proof of guilt of the accused beyond reasonable doubt, question of obligation of prosecution to explain injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and under what circumstances injuries have been inflicted on the person of the accused. It is more so when the injuries are simple or superficial in nature. In the case at hand, trifle and superficial injuries on accused are of little assistance to them to throw doubt on veracity of the prosecution case.

97. PW-5 the Investigating Officer has conducted investigation of present crime. He has stated that on 13.07.1988 he was Station House Officer of Police Station Mailani, District Lakhimpur Kheri. Constable S.K.Singh PW-4 prepared Check F.I.R. (Ext Ka-2) on the basis of written report submitted by complainant Ranjeet Singh. He took up investigation of this crime, inspected the place of occurrence, conducted inquest proceedings of dead body of Beyant Singh. He has proved inquest report as Ext-5. PW-4 Constable S.K.Singh has proved that he prepared check F.I.R. (Ext Ka-2) and G.D. (Ext Ka-3) of registration of crime on the basis of written report submitted by the complainant Ranjeet Singh. No material contradiction was elicited during the course of cross-examination of PW-4, except for getting proved F.I.R. of cross case (Ext Kha-1) lodged by Kundan Singh. He does not remember that on 13.07.1988 Kundan Singh accused approached him, while he prepared check F.I.R. (Ext Ka-2). Therefore, it cannot be inferred that check F.I.R. (Ext Ka-2) was prepared by PW-4 ante timed.

98. PW-5 dictated to Sub Inspector Dalchand during inquest proceeding of dead body of Beyant Singh. The dead body was sealed and handed over to Constable Akshiwar Nath Yadav along with documents Ext Ka-6 to Ext ka-9. Documents challan-nash, photo-nash, sample of seal for autopsy of corpse of the deceased Beyant Singh. These documents were also prepared by Sub Inspector Dalchand Maurya.

99. PW-5 has also proved these documents. PW-5 has also stated that he prepared Site Plan (Ext Ka-10) on pointing out by the witnesses and the complainant. He collected blood stained and plain soil from the place of occurrence and prepared recovery memo (Ex Ka-11 and 12). He recorded statements of complainant PW-1, victim PW-2 and witness PW-3 Darshan Singh son of Man Singh.

100. PW-5 has stated in his examination-in-chief that on 14.07.1988 at 9.00 a.m. he arrested Kundan Singh who confessed the crime and apprised that Rakshpal and Darshan Singh used sword for murder of the deceased and he had hidden these swords . The blood stained swords were discovered on pointing out of co-accused Kundan Singh. The recovery memo (Ext Ka-13) was prepared. He also prepared Site Plan (Ext ka-14) of this discovery. PW-1Ranjeet Singh has also corroborated statement of PW-5, Investigating Officer that police personnel discovered swords on the pointing out of co-accused Kundan Singh, although Kundan Singh has not faced the trial, because he expired during committal proceedings and his case was not committed to the Court of sessions.

101. PW-5 has also stated in examination-in-chief that on 16.07.1988 he took in his possession blood stained clothes of victim Darshan Singh PW-2 and prepared recovery memo (Ext ka-15). He concluded investigation and submitted charge-sheet (Ext Ka-16) against the accused persons on 23.07.1988.

102. PW-5 in his cross-examination has accepted this fact that cross case no. 64A was registered on the basis of written report submitted by co-accused Kundan Singh. He copied it in case diary on 16.07.1988. He has explained during his cross examination that he has conducted investigation of both, present crime and crime no. 64A.He has refuted this suggestion that Kundan Singh reached at police station for lodging F.I.R. on 12.07.1988 and he was detained during period from 12.07.1988 up to 15.07.1988 at police station. He has also refuted this suggestion that arrest of Kundan singh was falsely shown on 14.07.1988. He has also refuted this suggestion that written report (Ext Ka-1) of present crime was lodged with his consultation and deliberations. He has clarified this fact that he has not mentioned in inquest report of deceased Beyant Singh that mud was available on his clothes or body.

103. He has stated that he has shown agricultural field of Saheb Singh in Site Plan and on Western side of this field, he has shown chak road. It may be fault of PW-5 that he has not mentioned distance of chak road from "jhala". He has mentioned direction of chak road as Northern-Southern. He has marked the place "A" where dead body of Beyant Singh was lying on the place of occurrence. He collected blood stained and plain soil from this place. He inspected the place of occurrence on 13.07.1988.

104. He has clarified in his cross-examination that Kundan Singh was arrested by him near Rice Mill and Ext Ka-13 was prepared in this regard in presence of Darshan Singh son of Man Singh and Sardara Singh son of Jetha Singh. He has also stated that while he reached at "Jhala" of Kundan Singh, no neighbourer was present. It may be fault of PW-5-Investigating Officer that he has not mentioned in statement of PW-2 that Pooran Singh was ahead of Karnail Singh, while Karnail Singh fired shot towards PW-2 and both the deceased. PW-2 has specifically stated that he apprised the Investigating Officer in this regard. PW-5 Investigating Officer has refuted this suggestion that he had not handed over investigation of cross case to other police personnel, because he wanted to weak cross case, to procure conviction of accused persons.

105. On perusal of examination-in-chief and cross-examination of the Investigating Officer PW-5, it reveal that no material contradiction was elicited by learned defence counsel during cross examination or so called weaknesses engrafted by PW-5 during investigation of cross case or written report (Ext Ka-1) was lodged with his consultations and deliberations.

106. Learned defence counsel admitted genuineness of inquest report of deceased Amrik Singh and documents i.e. report to C.M.O. (Ext ka-22), Photonash (Ext Ka-23 and Ext Ka-24), sample of seals (Ext ka-25), police form (Ext ka-26). Therefore, these documents were not proved separately by the prosecution. Proof of these documents was dispensed with by learned defence counsel.

107. Learned trial Court has considered argument of learned defence counsel about delay in lodging F.I.R. and observed that F.I.R. of this case was lodged without any delay, because the complainant brought the injured at the hospital to get their treatment and then he proceeded to lodge F.I.R. at police station. Therefore, F.I.R. of this case was lodged by PW-1 on 13.07.1988 at 03.10 a.m. At this point of time, as proved by PW-1, co-accused Kundan Singh was not present at the police station or at the place of occurrence. Therefore, argument of learned defence counsel was discarded by the trial Court in this regard.

108. The trial Court has recorded finding that there was acute hostility between the parties on account of the fact that Kundan Singh and his sons were damaging the Maind and the crop of maternal uncles of the complainant-PW-1. The motive of present crime was proved by both the witnesses PW-1 and PW-2 as per version mentioned by PW-1 in his written report. The trial Court has found that this fact was proved by the prosecution that some altercation was ensued between Kundan Singh, Darshan Singh and Beyant Singh regarding damage of Maind, the Maind of agricultural field of Saheb Singh and Beyant Singh was damaged by Kundan Singh and Beyant Singh asked him not to damage it, two hours prior to the date of incident. The appellants have accepted this fact in their statement recorded under Section 313 Cr.P.C. Likewise, presence of Kundan Singh, Karnail Sikngh, Rakhpal Singh and Darshan Singh son of Kundan Singh is also accepted by the appellants and co-accused persons.

109. After appreciation of evidence of witnesses, learned trial Court has recorded finding that PW-1 Ranjeet Singh and PW-2 injured Darshan Singh has proved that aforesaid incident took place near Beyant Singh's field.

110. The Investigating Officer-PW-5 found blood on the place of occurrence, proved by PW-1 and PW-2. The dead body of Beyant Singhw as also found on this place of occurrence i.e. chak road.

111. Learned trial Court has also considered the nature of injuries sustained by Beyant Singh. The brain material was coming out from his head, therefore, he could not move from this place of occurrence after sustaining injuries. On the other hand appellant and co-accused persons has not proved this fact by cogent and reliable defence evidence that incident occurred in the agricultural field of Saheb Singh. As per defence version, no ocular evidence was adduced by producing any defence witness or their own examination in defence after taking permission under Section 315 Cr.P.C. by the appellants and other co-accused persons. Therefore, argument of defence counsel was discarded by the trial Court in correct perspectives regarding place of occurrence.

112. Learned trial Court has considered the argument of learned defence counsel in this regard that there is contradiction in statement of PW-1 Ranjeet Singh and injured PW-2 Darshan Singh and regarding the fact that whether Kundan Singh and Darshan Singh were ploughing the filed of Saheb Singh or Darshan Singh was ploughing the field and Kundan Singh was cutting the Maind. Learned trial Court has also recorded finding in this regard that PW-2 Darshan Singh was apprised by the complainant Ranjeet Singh and Beyant Singh this fact that altercation regarding Maind was occurred at 4.00 p.m.. PW-2 Darshan Singh son of Dharam Singh injured was not present at this point of time on the place of the aforesaid incident.

113. PW-1 Ranjeet Singh apprised the Investigating Officer-PW-5 regarding the place on which Kundan Singh damaged the Maind, but the Investigating Officer did not mention it in Site Plan. This fact was considered insignificant, because the Investigating Officer found the place of occurrence on chak road and not in the field of Saheb Singh. Therefore, learned trial Court has discarded argument of learned defence counsel in this regard.

114. Learned trial Court has recorded finding that genesis of the occurrence was proved by the witnesses PW-1 and PW-2 and occurrence was admitted to both the parties.

115. After examining the arguments of learned defence counsel, learned trial Court has recorded finding that the appellants and co-accused persons inflicted the large number of incised wound on both the deceased and the injured PW-2 Darshan Singh. The nature of injuries reveal that these injuries were not inflicted in private defence, but they were inflicted in a ruthless way to cause murder of the victims/both the deceased and injured PW-2. The right of private defence did not accrue to the accused. There was no question of prolonging it till the victims were downed arise. The trial Court although has found that Karnail Singh fired only one shot aiming both the deceased and injured PW-2 and two fires in the air and prosecution specifically has not explained firearm injuries sustained by Pooran Singh. The witnesses have only stated that Pooran Singh came in between Kundan Singh and Beyant Singh.

116. The trial Court has found that in the present case the parties assaulted and inflicted injuries on each other by their weapons and their in own manner, therefore, it was a case of free fight. The benefit of doubt was not extended to the appellants and a specific finding has been recorded by the trial Court that hostility between the parties is an admitted fact. Marpeet between the parties is also admitted and corroborated by overwhelming evidence both oral and medical. The place of occurrence was established on chak road. There is no dispute about the time of occurrence. The plea of defence is not borne out by evidence, because the appellants including co-accused persons have caused injuries more than those could be necessary for the purpose of defence. The plea of defence that the victims attacked the accused in the field of Saheb Singh falls through.

117. Since the trial Court has found this case of free fight, therefore, there was no occasion for the witnesses PW-1 and PW-2 to explain specifically firearm injuries sustained by Pooran Singh and Kundan Singh or injuries sustained by other co-accused persons Darshan Singh son of Kundan Singh, Rakshpal Singh and Karnail Singh.

118. It is pertinent to mention here that cross version on the basis of the complaint lodged by accused Kundan Singh was registered as Crime no. 64A /1988 and Session Trial No. 342 of 1989 was tried by the Court of Additional Sessions Judge, 4th, Lakhimpur Kheri against Darshan Singh, Malook Singh and Ranjeet Singh for offence punishable under Sections 148, 307 and 149 I.P.C.. It was decided vide judgment and order dated 13.10.1999 by the same presiding officer Sri. Mushaffey Ahmad (further elevated to Bench of this High Court).

119. Learned trial Court has convicted Darshan Singh son of Dharam Singh for offence punishable under Section 307 I.P.C. and sentenced him to undergo imprisonment for rigorous for four years and fine of Rs. 5,000/- has been imposed with default stipulation to serve out additional imprisonment for six months. Co-accused Ranjeet Singh and Malook Singh have been acquitted of the charges under Section 148 and 307 I.P.C. read with Section 149 I.P.C. Dharshan Singh son of Dharam Singh has preferred Criminal Appeal No. 531 of 1999: Darshan (Darshan Singh) Vs. the State of U.P. assailing judgment dated 13.10.1999 by which he has been convicted by the trial Court.

120. Therefore, learned trial Court has rightly not considered this fact significant that the prosecution has not proved injuries sustained by the accused persons and discarded the argument of learned defence counsel in this regard.

121. It is pertinent to mention here that the Jail Superintendent, Central Jail, Bareilly vide letter dated 06.12.2018 has informed that appellant No.1, Rakshapal Singh has been released on licence Form-A, on 19.01.2017 vide order dated 03.01.2017 passed by Hon'ble Governor of State of U.P. by invoking powers under Section 2 of U.P. Prisoner's Release on Probation Act, 1938 and Rule 8 of U.P. Prisoner's Release on Probation Rules.

The appellant No.2, Pooran Singh has been released on licence Form-A, on 02.02.2017 vide order dated 19.01.2017 passed by Hon'ble Governor of State of U.P. by invoking powers under Section 2 of U.P. Prisoner's Release on Probation Act, 1938 and Rule 8 of U.P. Prisoner's Release on Probation Rules.

They have furnished required bond before District Probation Officer, Lakhimpur Kheri.

122. According to the provisions of Section 4 of U.P. Prisoner's Release and Probation Act, 1938 it is provided as follows:

4. Period of release to be reckoned as imprisonment for computing period of sentence served. The period during which a person is absent from prison under the provisions of this Act on a licence which is in force shall be reckoned as part of the period of imprisonment to which he was sentenced, for the purpose of computing the period of his sentence and for the purpose of computing the amount of remission of sentence which might be awarded to him under any rules in force relating to such remissions.

123. On the basis of above discussions and expositions of law propounded by Hon'ble Apex Court and the evidence available on record, the impugned judgment and order dated 13.10.1999 cannot be termed as perverse or against the evidence on record. It is liable to be upheld and it is upheld.

124. This appeal lacks merits and is liable to be dismissed.

125. Accordingly dismissed.

126. In the present appeal, the appellants have been released only on the basis of license and we have dismissed their appeal.

127. Since Hon'ble Governor has not granted remission of sentence to the appellants, both the appellants shall surrender before the trial Court within 15 days, otherwise they will be arrested to serve out remaining sentence/imprisonment awarded against them vide impugned judgment and order dated 13.10.1999 passed by learned trial Court. Their absence from prison on licence, granted to them, shall be reckoned towards their sentence according to provision 4 of U.P. Prisoner's Release on Probation Act, 1938.

128. Copy of judgment be sent to the trial court and the concerned Jail Superintendent for compliance.

129. Record of the trial court be sent back, if not required, in the any other pending appeal.

Order Date:- 02.08.2019 Arvind

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