Ram Kishore And Another vs State Of U.P on 31 July, 2019

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Allahabad High Court

Ram Kishore And Another vs State Of U.P on 31 July, 2019

Equivalent citations: AIRONLINE 2019 ALL 1749

Bench: Ritu Raj Awasthi





HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved on 15.07.2019
 
Delivered on 31.07.2019
 
A.F.R.
 
Case :- CRIMINAL APPEAL No. - 2590 of 2004
 
Appellant :- Ram Kishore And Another
 
Respondent :- State Of U.P
 
Counsel for Appellant :- K.K.Tewari,Pawan Kumar Pandey,Rama Kant Jayswal,Ravi Kant Pandey
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Ritu Raj Awasthi,J.

Hon'ble Virendra Kumar-II,J.

(Delivered by Hon'ble Virendra Kumar-II, J.)

1. This appeal has been preferred on behalf of the appellants Ram Kishore and Ram Pratap assailing impugned judgment and order dated 16.10.2004 delivered by the Court of Additional Sessions Judge, Ist, Hardoi in Session Trial No. 237 of 2003 arising out of Crime No. 02/2003, Police Station Shahabad, District Hardoi.

2. Learned trial court has convicted the appellant No.1-Ram Kishore for offence punishable under Section 302 I.P.C. and appellant No.2- Ram Pratap for offence punishable under Section 302 read with Section 34 I.P.C. and sentenced them to undergo imprisonment for life. Fine of amount of Rs. 5,000/- has also been imposed on each of the appellants with default stipulation to serve out additional rigorous imprisonment for two years.

3. The co-accused Ram Niwas and Ram Gopal @ Lala have been convicted for offence punishable under Section 323 I.P.C. and sentenced them to undergo simple imprisonment for six months. The co-accused persons have been acquitted for offence punishable under Sections 302 read with Section 34 I.P.C. The appellants Ram Kishore and Ram Pratap have been acquitted for offence punishable under Section 323 I.P.C.

4. It is pertinent to mention here that learned trial Court has tried Session Trial 196 of 2003 against co-accused Ram Niwas and Ram Gopal @ Lala and Session Trial No. 237 of 2003 against appellants Ram Kishore and Ram Pratap jointly. It is also relevant to mention here that neither any appeal has been preferred on behalf of State against the acquittal of appellant Ram Kishore and Ram Pratap for the offence punishable under Section 323 I.P.C. nor against the acquittal of co-accused Ram Niwas and Ram Gopal @ Lala for the offence punishable under Section 302/34 I.P.C. The State of U.P. has also not preferred appeal for enhancement of punishment for the offence punishable under Section 323 I.P.C. against the co-accused Ram Niwas and Ram Gopal @ Lala.

5. Mr. Ravi Kant Pandey, Advocate has filed Vakalatnama on behalf of appellant no.2 Ram Pratap and he has been appointed Amicus Curiae on behalf of appellant no.1, Ram Kishore vide order dated 16.05.2019. We have heard learned counsel for the appellants and Mr. Reetesh Kumar Srivastava, learned A.G.A. for the State and perused the record of Session Trial No. 237 of 2003:State Vs. Ram Kishore and another.

6. The complainant Munna Lal @ Muneem submitted written report (Ext Ka-2) at Police Station Shahabad, District Hardoi. On the basis of written report submitted by the complainant check F.I.R. (Ext Ka-6) was registered on 02.01.2003 at 15.45 hours and Crime No. 02 of 2003 for offence punishable under Sections 302, 307, 323 and 504 I.P.C. and Crime No. 03 of 2003 for offence punishable under Section 2/3 Gangster Act were registered at Police Station Shahabad, District Hardoi regarding incident dated 02.01.2003 occurred at 2.00 p.m. .G.D. (Ext Ka-7) of registration of crime was also prepared by the concerned police personnel.

7. PW-2 Munnal Lal, complainant has narrated in his written report (Ext Ka-2) that on the date of incident 02.01.2003 at 2.00 p.m. He was present at house of his dau, Late Anna. The accused persons Ram Niwas and Lala Ram (correct name Ram Gopal) came there and abused and assaulted him on the basis of old enmity of land. His father Chhunnapal and elder uncle Chhotkannu on hearing noises reached at the place of occurrence and tried to save the complainant from assault made by Ram Niwas and Lala Ram. The accused Ram Niwas raised alarm and called his brothers Ram Kishore and Ram Pratap. Ram Kishore came wielded rifle and Ram Pratap wielding 12 bore gun. Ram Kishore fired shot on Chhotkannu who sustained firearm injury and fell down on the place of occurrence, then all the appellants assaulted Chhunnapal and complainant Munna Lal with butts of their firearms. Chhatkannu after sustaining injuries fell down on the place of occurrence and immediately expired. The witnesses Ram Saran, Sri Pal, Shukha and Kripa Shanker and other villagers reached the place of occurrence, then all the accused persons including appellants fled away towards East direction.

8. The Investigating Officer recorded statements of witnesses and both injured persons during course of trial. He inspected the place of occurrence and prepared Site Plan (Ext Ka-8). He collected plain and blood stained soil from the place of occurrence and prepared the recovery memo (Ext Ka-9). He also took in his possession one empty shell/cartridge of 0.315 bore from the place of occurrence and prepared the recovery memo (Ext Ka-10).

9. The injured Chhunnapal and complainant Munna Lal were medically examined and their injury report (Ext Ka-3 and Ka-4) were prepared by the concerned doctor. The co-accused Ram Niwas was also medically examined and his injury report (Ext Ka-5) was also prepared by the concerned doctor. The Investigating Officer conducted inquest proceedings and prepared inquest report (Ext Ka-13) of the deceased Chhotkannu.

10. The Investigating Officer has also prepared Police Form (Ext Ka-14), photograph of the dead body of the deceased (Ext Ka-15), report to C.M.O. (Ext Ka-16), report to R.I. (Ext Ka-17) and sample of seal (Ext Ka-18) for autopsy of dead body of the deceased Chhotkannu. The concerned doctor conducted autopsy on the corpse of the deceased Chhotkannu and prepared post-mortem report (Ext Ka-1).

11. The Joint Director, Forensic Science Laboratory, Mahanagar, Lucknow forwarded report (Ext Ka-19) dated 11.09.2003 regarding chemical analysis of blood stained and plain soil collected from the place of occurrence and clothes "dhoti" shirt, vests, underwear of the deceased.

12. The Investigating Officer after concluding investigation submitted charge-sheet (Ext Ka-11) against co-accused Ram Niwas and Ram Gopal @ Lala punishable under Sections 302, 307, 323 and 504 I.P.C. and a separate charge-sheet (Ext ka-12) against the appellants Ram Kishore and Ram Pratap for the same offences.

13. The Chief Judicial Magistrate, Hardoi took cognizance on both the charge-sheet and committed present case on 30.04.2003 against Ram Niwas and Ram Gopal @ Lala and against appellants Ram Kishore and Ram Pratap on 02.06.2003.

14. Learned trial Court of Additional Sessions Judge, Fast Track Court, Hardoi framed charges against co-accused Ram Niwas, Ram Gopal @ Lala and appellant Ram Pratap on 08.07.2003 for offences punishable under Section 302/34 and 323 I.P.C. and against Ram Kishore for offences punishable under Sections 302 and 323 I.P.C. The accused persons including appellants pleaded not guilty and claimed to be tried.

15. Learned trial Court recorded statement of PW-1 Dr. R.K.Potwal, PW-2 complainant Munnal Lal, PW-3 injured Chunnapal, PW-4 Dr. Devendra Chaudhary, PW-5 Head Constable Hemraj and PW-6 the Investigating Officer Shyamnath Singh. During the course of trial, these witnesses proved the aforesaid documents (Ext ka-1 to Ext Ka-18) relied upon by the trial Court.

16. The statement of all the accused persons including appellants were recorded under Section 313 Cr.P.C. on 03.09.2004. They have stated that evidence adduced by witness is wrong and false. They have falsely been implicated in this crime due to old enmity. Ram Kishore has further stated that family member of the complainant Munna Lal was having a dispute with his uncle and father.

17. Learned trial Court has appreciated and evaluated evidence of witnesses and convicted the appellants by impugned judgment and order dated 16.10.2004 and awarded the aforesaid punishment.

18. We have also perused record of Sessions Trial No. 196 of 2003 and Sessions Trial No. 237 of 2003, statements of witnesses and other documents available on record. The learned trial Court made Session Trial No. 196 of 2003 the leading one and evidence was recorded in this Sessions Trial.

19. Learned counsel for the appellants has argued that there is old enmity on basis of immovable property/land between both the parties. The appellants have falsely been implicated in this crime. The appellant Ram Kishore, Ram Pratap and co-accused Ram Niwas are real brothers. They have not assaulted the deceased and both injured in the circumstances as narrated by the complainant Munna Lal in his written report (Ext Ka-2).

20. As per facts narrated in written report, it reveal that there was some altercation between complainant Munna @ Muneem and co-accused Ram Niwas and Ram Gopal @ Lala and the complainant party started incident by assaulting them along with witnesses Chhunnapal and Chhotkannu, who are father and elder uncle of complainant Munna Lal. The appellants during course of incident reached at the place of occurrence and to save Ram Niwas and Ram Gopal @ Lala, they defended themselves.

21. It is further argued that by learned counsel for the appellant that injuries sustained by the complainant Munnal Lal PW-2 and Chhunnapal PW-3 have been proved by the concerned doctor are of simple nature. The injured Chhunnapal in his statement before the trial Court has explained his injury no.3 by stating that his arm was fractured. No X-ray report is available on the record regarding injury no.3 sustained by PW-3 Chhunnapal.

22. Learned counsel for the appellants has also argued that co-accused Ram Niwas also sustained injuries during course of incident. His injury report (Ext Ka-5) was proved by witness PW-4 Dr. Devendra Chaudhary, who has been produced by the prosecution. The injury sustained by co-accused Ram Niwas was not explained by the prosecution that in which circumstances Ram Niwas sustained injuries mentioned in his injury report. There was no motive for the appellants to cause injuries to both injured PW-2 and PW-3 and in spur of the moments the deceased Chhotkannu sustained one gun shot injury.

23. It is further submitted that appellants reached on the call made by co-accused Ram Niwas, who is their real brother. The appellant Ram Kishore fired shot from his rifle only to save Ram Niwas and Ram Gopal @ Lala from complainant PW-2 and PW-3 Chhunnapal and the deceased Chhotkannu. He has mentioned that the deceased had not sustained firearm injury from 12 bore firearm.

24. Learned counsel for the appellants has vehemently argued that as per prosecution version Ram Pratap could not have been convicted by the learned trial Court with aid of provisions of Section 34 I.P.C. Moreover, when the deceased Chhotkannu fell down on the place of occurrence after sustaining firearm injury, then according to statements of witnesses, firearms were not further used by the appellants and the appellants allegedly assaulted the both injured with butt of their firearms. In these circumstances, this crime was not premeditated since the deceased sustained only one gunshot injury, therefore, this crime may be converted for the offences punishable under Section 304 part I or II I.P.C.

25. Learned A.G.A. has argued that learned defence counsel during cross-examination of PW-2 complainant has clarified the reason/motive of the incident committed by the appellants and co-accused persons. Moreover, the complainant Munnal Lal has specifically mentioned in his written report (Ext Ka-2) that there was old enmity on basis of immovable property/land, because the appellants were demanding more money regarding consideration of sale deed, which was executed by brother-in-law of appellant Ram Kishore and co-accused Ram Niwas and Ram Gopal @ Lala assaulted the complainant Munnal Lal first, when Munnal Lal was beaten up by co-accused Ram Niwas and Ram Gopal @ Lala, in the meanwhile his elder uncle Chhotkannu and his father Chhunnapal tried to save the complainant from clutches of co-accused persons. In the meanwhile, co-accused Ram Niwas called his real brothers Ram Kishore and Ram Pratap appellants. They reached at the place of occurrence and Ram Kishore opened fire from his rifle and Ram Pratap from gun of 12 bore and made indiscriminating firing.

26. Learned A.G.A. has pointed out that during cross-examination PW-2 complainant Munna Lal has disclosed this fact that appellant Ram Kishore after aiming Chhotkannu fired shot from his rifle, therefore, this crime cannot be termed to be committed by the appellants in spur of the moments, but it was committed by the appellants and co-accused persons to extort more money regarding land purchased by the complainant family from brother-in-law of appellant Ram Kishore. On the basis of evidence adduced by both the injured, the witnesses PW-2 and PW-3, it can safely be inferred that the appellant and co-accused persons committed this crime premeditated.

27. The complainant PW-2 has mentioned in his written report (Ext Ka-2) that on the date of incident 02.01.2003 at 2.00 p.m. he was present at house of his Dau late Anna, where co-accused Ram Niwas and Ram Gopal @ Lala came and abused him on the basis of old enmity of land. In his statement/examination-in-chief PW-2 complainant Munna Lal has disclosed this fact that Ram Niwas and appellants Ram Kishore and Ram Pratap are resident of his village and they are real brothers. Co-accused Ram Gopal was residing at Firozpur. He is permanent resident of village Utiapur situated in district Sitapur. Ram Gopal often visited house of co-accused persons, because he was their friend. They all are miscreants. Ram Gopal is associated with miscreants. His family member does not reside in his village Kuiaan.

28. He has further stated that on the date of incident he was present at house of his elder aunt. Co-accused Ram Niwas armed with country made pistol and Ram Gopal armed with rifle came their and abused him. He prevented and asked them not to abuse him. Both the accused assaulted him with fists and kicks and butt of gun. His father Chhunapal (PW-3) and the deceased Chhotkannu-his elder under reached from Western side and tried to save him. Co-accused Ram Niwas called Ram Kishore and Ram Gopal, who had wielded countery made rifle and country made gun respectively and fired indiscriminately. The deceased Chhotkannu sustained firearm injury from fire shot by Ram Kishore and fell down. The appellants and co-accused persons then assaulted his father Chhotkannu with butt of their firearms. He has further stated that the appellants Ram Kishore and Ram Pratap, co-accused Ram Niwas and Ram Gopal had not sustained any firearm injury. The accused persons went after committing the incident towards East side. He has proved his written report (Ext Ka-2). He has further stated that his written report was written by Baji Lal resident of Kuthia. He had listened it and signed it and after signing it he submitted report at police station. He has explained during his examination-in-chief that Ram Gopal belongs to caste "lala" and the accused persons were calling him by this name "lala-lala". Therefore, he mentioned his name in his written report as Lala Ram, his real name is Ram Gopal.

29. PW-2 in his cross-examination has specifically stated that there was no prior enmity on the basis of land with the accused persons. They purchased some land from brother-in-law of appellant Ram Kishore, namely, Om Prakash. The accused persons were demanding more money/consideration forcibly. Therefore, on the basis of this fact the accused persons were entertaining animosity. He has also clarified that Ram Babu apprised him the real name Ram Gopal of accused Lala Ram.

30. PW-2 has also stated in his cross-examination that Sripal and Shukhkha, who are named in his written report as eye-witnesses along with Ram Saran and Kripa Shanker, were beaten up by the accused persons prior to the present incident and they got fracture also. The accused persons were having animosity with witness Shukha and Sripal also. PW-2 has further stated that when Sub-Inspector visited the place of occurrence, witness Sripal and Shukha along with other witnesses reached there.

31. PW-2 on the basis of question put forth by learned defence counsel has clarified about the enmity. Therefore, these facts that family of PW-2 injured purchased some land from Om Prakash, who is brother-in-law of Ram Kishore, cannot be termed as improvement of facts regarding enmity or motive. In this regard, following exposition of law of Hon'ble Supreme Court is relevant, which are as follows:

The Hon'ble Supreme Court in the case of Jaishree Yadav Vs. State of U.P., (2005) 9 SCC 788 in following para has held as under:

17. ....In the instant case obviously because one of the deceased was a prominent person of the area concerned, the higher authorities were informed through radio transmission that his murder had taken place and in such communication, in our opinion, it is not necessary that the names of all the persons or other particulars as stated in the complaint ought to have been mentioned or that non-mentioning of such particulars in such communication gives rise to an inference that at the time when the transmission was made the investigating agency was not in the know of the names of all the accused. Both the courts below have considered these aspects of the defence case as to ante-timing of the FIR and have rejected the same and we are in agreement with the findings of the courts below, hence, we reject this contention of the learned counsel for the appellants in regard to ante-timing of the FIR.

21...................This witness in his evidence has stated that since his brother-in-law was available who was also a literate, he dictated the complaint to him which was scribed by his brother-in-law and we do not find anything unnatural in this conduct either. Next ground of attack in regard to the evidence of this witness is that he has not stated all the motives stated in his evidence before the court in the complaint. In other words, the complaint did not contain details of the motives as spoken to by this witness in his evidence before the court. We do not think that this also could be a ground to reject the evidence of this witness. In the complaint this witness has specifically stated that A-3 and A-4 had enmity with his father in regard to the auction of tehbazari of Nawalpur Chowk. He has further mentioned in the complaint that so far as accused Ram Pratap Yadav is concerned, his father had a litigation pertaining to a particular land and so far as Hafiz Khairul Bashr is concerned, his father had a dispute pertaining to the erection of an electric pole. He has also mentioned in the complaint about an altercation PW 6 had with A-3 and A-4 in regard to the payment of tehbazari in regard to which PW 6 had made a complaint to his father on the fateful day. In this background we hardly find any force in the argument of learned counsel for the accused that this witness has made improvement in his evidence from what he had stated in his complaint. Of course during the course of his cross-examination he has elaborated the nature of enmity that his father had with these accused persons but then that could hardly be a reason to contend that what is stated in the complaint is either different from what is stated in the evidence in regard to the motive or the witness has made improvement in regard to the motive of the accused to commit the crime. Apart from the above challenge to the evidence of this witness, learned counsel for the accused pointed out certain contradictions, omissions and improvements found in his cross-examination but then this again will have to be considered as considered by the courts below, in the background of the fact that the cross-examination of this witness was also spread over a period of nearly 6 months and he was subjected to nearly 480 questions. In this background for the reasons already stated above, as held by the two courts below, we do not think these contradictions, improvements and omissions would affect the credibility of this witness either.

32. Therefore, the complainant PW-2 has proved this fact that the appellants and co-accused persons assaulted him at house of his elder aunt on the basis of enmity of land purchased by his family from Om Prakash, who is brother-in-law of appellant Ram Kishore.They were demanding money and wanted to extort more money forcibly. It was the motive for the accused persons to commit this crime. There is no substance in argument of learned counsel for the appellants that there was no motive for the accused persons including appellants to commit this crime.

33. Learned counsel for the appellant has argued that the appellants and co-accused initially Ram Gopal @ Lala Ram and Ram Niwas had not used their country made rifle and country made pistol respectively, while they abused PW-2 complainant and when Chhotkannu fell down, after sustaining firearm injury. As per prosecution version they assaulted PW-3 Chhunnapal with their butt of their firearm and had not fired further.

34. PW-2 complainant in his cross-examination has also stated that he was present on "Mohara", which is adjacent to the way. Co-accused Ram Niwas and Lala Ram assaulted him with butt of their firearm and abused him, when his father PW-3 Chhunnapal and the deceased Chhotkannu came there to save him, then the appellants including co-accused persons assaulted his father with butt of their firearms. The deceased Chhotkannu as and when reached at the place of occurrence Ram Kishore fired from his rifle aiming him. He has further stated that he has mentioned in his written report correctly that his father and deceased Chhotkannu came to save him from assault made by the accused persons.

35. PW-2 has specifically stated that the appellants and co-accused persons were assaulting him. They had not assaulted Chhotkannu at this point of time. He has mentioned that accused persons fired 04-06 shots from both side East and West. The accused persons also fired towards him and fired shot by them also stuck on his head. He has denied this fact that he apprised the Sub-Inspector that Ram Kishore fired shot at him and somehow he was saved and this fire was stuck on Chhotkannu. He has not given any such statement to the Investigating Officer.

36. PW-2 has further specifically stated in his cross-examination that appellant Ram Kishore aimed at Chhotkannu and fired from his rifle. He apprised the Investigating Officer in this regard that Ram Kishore fired shot on Chhotkannu aiming him. PW-2 has also mentioned that one empty cartridge of rifle was recovered by the Investigating Officer from the place of occurrence and recovery memo was prepared.

37. PW-2 has further stated that they had not assaulted the accused persons and he did not see any injury sustained by the accused persons. He has refuted this suggestion that unknown accused persons fired shot on Chhotkannu in any other circumstance. On the other hand he has stated that he apprised the Investigating Officer about the place of occurrence, from where, the accused persons had shot fire.

38. Therefore, PW-2 complainant in his statement, examination-in-chief and cross-examination has clearly and specifically proved the sequence of overt act committed by all the accused persons, including appellants. No material contradiction was elicited during his cross-examination, which may help the accused appellants regarding the fact that incident of this case occurred on the spur of moments. He has specifically stated that they have not assaulted the accused persons during course of incident. On the other hand appellant Ram Kishore and Ram Pratap made indiscriminate firing during the course of incident.

39. It may be possible that other fire shots made by Ram Pratap and Ram Kishore from their country made gun and rifle could not be targeted well, therefore, only one gunshot was sustained by the deceased Chhotkannu, because Ram Kishore fired one shot from his rifle aiming him.

40. Learned counsel for the appellants has vehemently argued that co-accused Ram Niwas sustained injuries during course of incident. Therefore, it may be possible that when the complainant PW-2 Munna Lal PW-3 his father Chhunnapal and the deceased Chhotkannu had a altercation/scuffle with accused persons Ram Niwas and Ram Gopal @ Lala Ram, on this point of time, Ram Niwas sustained injuries by assault made by the complainant party.

41. We have perused injury report of Ram Niwas, which has been proved by PW-4 Dr. Devendra Chaudhary as Ext Ka-5. Co-accused Ram Niwas was medically examined by PW-4 on 05.01.2003 at 1.00 p.m. PW-4 Dr. Devendra Chaudhary found the following injury on his body:

(i) Multiple abrasions in an area 17 cm x 2 cm, which were present over head and forehead. Three in number. Largest of size 3 cm x 0.5 cm and smallest 1cm x 0.2 cm along with scab.

(ii) Complaint of pain in left leg

(iii) Complaint of pain in right forearm.

All these injuries were found simple in nature and duration of injuries was about three days.

42. As per prosecution version the incident of this crime was committed by the appellants and co-accused persons on 02.01.2003 at 2.00 p.m. Co-accused Ram Niwas in his statement recorded under Section 313 Cr.P.C. has answered question no. 16 and 17 that he was assaulted by police personnel on 04.01.2003. Therefore, there is no substance in argument of learned counsel for the appellants that co-accused Ram Niwas sustained these aforesaid injuries during course of incident.

43. Learned defence counsel has not given any suggestion in this regard to PW-2 complainant that he, his father Chhunnapal and the deceased Chhotkannu assaulted Ram Niwas and Ram Gopal @ Lala Ram during course of incident. This fact was denied by PW-2 complainant by stating that they had not assaulted the accused persons.

44. Therefore, on the basis of admission of co-accused Ram Niwas in his statement recorded under Section 313 Cr.P.C., it cannot be said that the complainant PW-2, his father Chhunnapal and the deceased Chhotkannu, even gave, grave or sudden provocation to the appellants and co-accused persons by assaulting them. The contentions of learned counsel for the appellants that the appellants and co-accused persons assaulted both the injured PW-2 and PW-3 and fired shot only for saving them from assault made by complainant party.

45. It is not a case of so grave and sudden provocation given to appellants by complainant, his father and the deceased during course of incident that there was such danger to the life of the appellants, so that the appellants in their defence were compelled to fire shots during course of incident, which resulted in death of the deceased Chhotkannu.

46. We have also perused statement of PW-3, who is father of the complainant Munna Lal. He has also stated that Ram Gopal @ Lala Ram is resident of another village, whereas appellants Ram Kishore, Ram Pratap and co-accused Ram Niwas are resident of his village. The correct name of Lala Ram is Ram Gopal. PW-3 in his examination-in-chief has further stated that on the date of incident at 2.00 p.m. he was coming from his agricultural field from Western side. The co-accused persons Ram Niwas and Ram Gopal @ Lala Ram were assaulting his son Munna Lal in front of "Bakhari" of Dhanna. Co-accused Ram Niwas raised alarm and called his brothers Ram Kishore and Ram Pratap. Ram Kishore had wielded rifle and Ram Pratap had wielded gun. They came from Eastern side. Ram Kishore had fired shot after reaching place of occurrence, which stuck Chhotkannu, who fell down on the place of occurrence.

47. PW-3 has clarified this fact that Chhotkannu along with him came at the place of occurrence. He has further stated that Ram Kishore and Ram Pratap assaulted him with butt of their firearms. His hand was fractured. He has specifically stated that accused persons including appellants fired 04-06 shots and fled away towards East. Co-accused Ram Niwas sustained injury from fire shot by accused persons.

48. PW-3 has mentioned that witness Sripal, Shukhha, Ram Saran and Kripa Shanker reached at the place of occurrence and witnessed this incident. He has clarified that Kripa Shanker reached at the place of occurrence when Chhotkannu fell down. PW-3 has further stated that he could not stand up from the place of occurrence and he became unconscious. Co-accused Ram Niwas and Ram Gopal assaulted Munna Lal, therefore, he sustained injuries.

49. PW-3 in his cross-examination has clarified that his agricultural field is situated on the Eastern side of the agricultural field of Chhotkannu. He was also working in his agricultural field on the date of occurrence. He has also stated that there is 10-12 agricultural fields in between his and Chhotkannu's agricultural field. Chhotkannu took agricultural field of Madan Lal on "batai". He was also returning back from this agricultural field.

50. PW-2 and PW-3 during their cross-examination have proved the topography of their houses and other witnesses.

51. PW-3 injured Chhunnapal during his cross-examination has clarified this fact that Chhotkannu reached at the place of occurrence first, then he reached there. He and Chhotkannu tried to save Munna Lal, then accused persons assaulted them also. The appellant Ram Kishore fired shot on Chhotkannu-deceased from the place, which was situated at a distance of 04-06 paces from house of Ram Das. This place was situated at Eastern side of his house. He has also disclosed this fact that house of Dhhanna is situated at a distance of 10 paces from house of Ram Das. The house of Ram Das is on Western Side of house of Dhanna.

52. PW-3 has further stated that the Investigating Officer inspected the place of occurrence and he apprised him about the place, from where, accused persons fired shots and where Chhotkannu sustained injury. He has specifically stated that Ram Kishore and Ram Pratap appellants fired total 05-06 shots at the place of occurrence. Ram Pratap was present in East side of house of Shushil and fired shot from a distance of 50 paces.

53. PW-3 Chhunnapal has also stated that he apprised the Investigating Officer that when he and Chhotkannu tried to save Munna Lal accused persons assaulted them also. He has mentioned that his son purchased agricultural field and erected "Chhappar" on it. Accused persons often uprooted trees and cut "aaudhe". He has refuted this suggestion that all the people belonging to "teli" caste were annoyed from the accused persons and stated that on the other hand accused persons harassed them.

54. PW-3 has also mentioned it in his cross-examination that he apprised the Investigating Officer that accused persons were of criminal background and often committed crimes. The report of this incident was lodged by Munna Lal and Kripa Shanker. He has refuted this suggestion that Kripa Shanker did not accompany his son, while he went to lodge F.I.R. at police station.

55. PW-3 has also refuted this suggestion that Chhotkannu, the deceased sustained injuries in any other circumstance and the accused persons have falsely been implicated in this crime. He did not see any incident.

56. Therefore, on perusal of examination-in-chief and cross-examination of PW-3, it reveal that initially Ram Niwas and Ram Gopal @ Lala Ram assaulted his son Munna Lal. He and his elder brother Chhotkannu were returning back from their agricultural field and reached at the place of occurrence and saw the altercation/assault made by Ram Niwas and Ram Gopal @ Lala Ram. They tried to save Munna Lal, in the meanwhile, appellant Ram Kishore fired shot on him, from which, he sustained injuries. The appellant Ram Kishore and Ram Pratap fired 05-06 shots from their rifle and gun respectively during course of incident. He has specifically stated that when Chhotkannu fell down after sustaining firearm injury, accused persons assaulted him with butt of their firearms.

57. PW-3 has also clarified the enmity on basis of immovable property/land purchased by his son Munnal Lal complainant. He has also clarified in his cross examination that land purchased by Munna Lal was the bone of contention and basis of this enmity and there was no written document available in this regard.

58. The statement of PW-3 corroborates the statement of PW-2 his son Munna Lal that appellants and co-accused persons with intention to extort extra money/consideration of land from him assaulted them. It was the motive for committing this crime by the appellants and co-accused persons. Since Ram Kishore and Ram Pratap made indiscriminate firing, therefore, this crime cannot be said to come in category of one fire shot made by appellant Ram Kishore on deceased Chhotkannu. Other fire shot made by appellants Ram Kishore and Ram Pratap might have possibly missed the target, therefore, the deceased Chhotkannu sustained only one shot entry wound and exit wound of fire shot by Ram Kishore.

59. The common intention of both the appellants Ram Kishore and Ram Pratap can be inferred on the basis of facts and circumstances proved by PW-2 and PW-3. both the injured witness. Their presence at the place of occurrence cannot be doubted.

60. The appellants and co-accused persons have not adduced any cogent, reliable and trustworthy evidence regarding the suggestion given to PW-2 and PW-3 that some unknown persons caused death of the deceased Chhotkannu in any other circumstance.

61. Learned counsel for the appellant has further argued that PW-3 Chhunnapal has accepted in his cross-examination that when Chhotkannu fell down after sustaining firearm injury. The appellants and co-accused persons assaulted him with butt of their firearms and no other fires were shot by them. He has also mentioned that PW-3 in his cross-examination has stated that the accused persons fired 04-06 shots and fled away towards East side, therefore, it can be safely inferred from this statement of PW-3 that appellant Ram Kishore had fired only one shot, which was stuck to the deceased Chhotkannu and other shots were fired by Ram Kishore and Ram Pratap, when they fled away from the place of occurrence.

62. This argument of learned counsel for the appellant is misconceived, because PW-3 in his cross-examination has specifically stated Ram Kishore and Ram Pratap fired total 05-06 shots on the place of occurrence during the course of incident. It cannot be inferred that only one fire shot was made by Ram Kishore by which firearm injury was sustained by Chhotkannu and he fell down and other fires were shot by appellants when they fleeing away from the place of occurrence. If statement/examination-in-chief and cross-examination of PW-3 would be read conjointly along with statement of PW-2, then it is found that evidence of PW-3 corroborates statement of complainant Munna Lal that appellants made indiscriminate fire during the course of incident.

63. Learned counsel for the appellants has further stated that it is not a case, in which, incident was committed by the appellants in furtherance of common intention on the basis of facts and circumstances proved by PW-2 and PW-3 both the injured witnesses. There was no prior meeting of minds of the appellants and co-accused persons. The appellants reached at the place of occurrence on call made by co-accused Ram Niwas. They were not aware that what was the reason of altercation/scuffle between complainant Munna Lal and co-accused Ram Niwas and Ram Gopal @ Lala Ram and what was going on the place of occurrence.

64. Learned counsel for the appellants has further stated that if intention of the appellant would have been to cause death of any member of family of the complainant, then they might have caused death of the complainant Munna Lal in the initial stage of this incident, because according to witness PW-2 Munna Lal, Ram Niwas was armed with country made pistol and Ram Gopal @ Lala Ram was armed with rifle.

65. Learned counsel for the appellants has also pointed out that the complainant PW-2 Munna Lal has not mentioned in the written report (Ext Ka-2) that Ram Niwas and Ram Gopal @ Lala Ram were wielding these weapons. This fact has been developed by PW-2 in his examination-in-chief only to increase gravity of the incident.

66. It is pertinent to mention here that every fact/motive blocked in mind of accused persons including the appellants, cannot be proved by the prosecution, because motive to commit crime always remains in mind of the accused and it was outlook of the appellants and co-accused persons why they assaulted both the deceased with butt of their country made pistol and rifle or gun. The witnesses PW-2 and PW-3 could not be able to prove these facts as argued by learned counsel for the appellants.

67. On the other hand in the initial stage of incident, it may be possible that Ram Niwas and Ram Gopal @ Lal Ram might have intention to only extort extra money regarding land purchased by complainant Munna Lal from Om Prakash. It is also possible that as stated by PW-3 that written document was not available regarding this purchase. Therefore, Ram Kishore and Om Prakash were demanding more consideration of this land.

68. The Investigating Officer has recorded statement of the complainant on 02.01.2003, in which he has apprised the Investigating Officer that "sale deed was not executed by Om Prakash. Ram Kishore demanded more money on account of consideration for land, to get bailed out his brother-in-law Om Prakash. Om Prakash sold his land to 05-06 persons after receiving amount of Rs. 60,000/- and in the meanwhile Om Prakash was detained in jail. PW-2 in his statement recorded under Section 161 Cr.P.C. has apprised the Investigating Officer that Ram Niwas and Ram Gopal, when assaulted him initially, they had wielded country made firearms".

69. Therefore, the argument of learned counsel for the appellants is misconceived that PW-2 developed new facts in his examination-in-chief during course of trial regarding the fact that Ram Niwas and Ram Gopal assaulted him with butt of their firearms and initially during course of incident, Ram Kishore had wielded country made pistol and Ram Gopal had wielded rifle.

70. On the fact of motive the following exposition of law of Hon'ble Apex Court is relevant:-

Hon'ble Supreme Court (Division Bench) in the case of State of U.P. vs. Babu Ram reported in 2000 Cri. L. J. 2457 in para-11 has observed as follows:-

"11. We are unable to occur with the legal proposition adumbrated in the impugned judgment that motive may not be very much material cases depending on direct evidence whereas motive is material only when the case depends upon circumstantial evidence. There is no legal warrant for making such a hiatus in criminal cases as for the motive for committing the crime. Motive is a relevant factor in all criminal cases whether based on the testimony of eye witnesses or circumstantial evidence. The question in this regard is whether a prosecution must fail because it failed to prove the motive or even whether inability to prove motive would weaken the prosecution to any perceptible limit. No doubt, if the prosecution proves the existence of a motive it would be well and good for it, particularly in a case depending on circumstantial evidence, for, such motive could then be counted as one of the circumstances. However, if cannot be forgotten that it is generally a difficult area for any prosecution to bring on record what was in the mind of the respondent. Even if the Investigating Officer would have succeeded in knowing it through interrogations that cannot be put in evidence by them due to the ban imposed by law."

71. On perusal of statements of PW-2 and PW-3 given before the trial Court it reveal that the intention of the appellants and co-accused persons was to extort extra consideration of land from the complainant Munna Lal and it may be possible that on the place of occurrence at 2.00 p.m. Ram Niwas and Ram Gopal @ Lala Ram assaulted Munna to extort this money. Therefore, they did not use their firearms and assaulted him only with butt of their firearms.

72. No suggestion was given by the learned defence counsel to PW-2 and PW-3 that they were also armed with their weapons. They also assaulted the accused persons. The injury sustained by co-accused Ram Niwas is of simple in nature and they might have been sustained by him during the initial incident when they have altercation/scuffle with PW-2 Munna Lal. These trifles and simple injuries sustained by Ram Niwas were not required to be proved by the prosecution.

73. Moreover co-accused Ram Niwas has stated in his statement recorded under Section 313 Cr.P.C. that police personnel assaulted him on 04.01.2003. PW-2 and PW-3 both injured have denied this fact that they assaulted Ram Niwas or any other accused persons including appellants. In this regard 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) 68at 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.

74. Since co-accused Ram Niwas has accepted himself in his statement recorded under Section 313 Cr.P.C. that police personnel assaulted him on 04.01.2003. Therefore, argument of learned counsel for the appellants is misconceived regarding the fact that PW-2 complainant Munnal Lal, his father PW-3 Chhunnapal and deceased Chhotkannu also assaulted them during the course of trial. PW-2 and PW-3 have not assaulted the accused persons including appellants during the course of incident. It cannot be accepted as argued by learned counsel for the appellants that assault was being made by both the sides, when Ram Kishore and Ram Pratap reached at the place of occurrence.

75. As far as it is argued by learned counsel for the appellant that PW-2 in his cross-examination has stated that appellants had fired from East and West side both and PW-3 has stated that Ram Kishore fired shot on Chhotkannu from the place which was infront of house of Ram Das on Eastern side. Therefore, in running position it was not possible for Ram Kishore to know the reason for scuffle between Munnal Lal and co-accused Ram Niwas and Ram Gopal @ Lala Ram and he in heat of passion fired shot on the deceased Chhotkannu. He has relied upon Site Plan also in this regard and argued that the Investigating Officer has mentioned place marked "X", where the deceased Chhotkannu sustained firearm shot by appellant Ram Kishore.

76. PW-2 has specifically stated that on call of Ram Niwas, Ram Kishore and Ram Pratap came from Eastern side at the place of occurrence. It may be possible that during the course of incident of scuffle between PW-2 Munnal Lal and co-accused Ram Niwas and Ram Gopal @ Lala Ram at place marked "A", Ram Kishore reached at the place, where from, he fired shot as stated by PW-3 in his cross-examination.

77. It is also relevant to mention here that the Investigating Officer has mentioned land of Ram Das on Southern side of place of occurrence. PW-3 has clarified this fact that from house of Dhanna, house of Ram Das was a distance of 10 paces. The Investigating Officer has mentioned house of Dhanna in Site Plan in south of place marked "A".

78. On perusal of Site Plan (Ext Ka-8) it reveal that during the course of incident appellant Ram Pratap remained in front of house of Shushil and Ram Kishore might have reached ahead in Western side from place marked "X" from where, he fired shot on Chhotkannu. PW-2 has stated in his cross-examination that accused persons including appellants shot 05-06 fire during the course of incident from Eastern and Western side.

79. Therefore, there is no material contradiction in statement of PW-2 and PW-3 in this regard. Moreover, PW-2 and PW-3 both are injured witnesses and they also sustained injuries during course of incident of assault made by appellants and co-accused. Hence, they are not expected to remember all minute details of the incident. They have adduced their evidence before the trial Court after 10-11 months of the incident. They have adduced their evidence on the basis of their memory after recollecting the fact of present incident. Therefore, some minor contradictions might have appeared in their statements. These minor contradictions are of no avail to extend any benefit of the appellants.

80. PW-2 and PW-3 have specifically stated that 05-06 fires were shot by appellants Ram Kishore and Ram Pratap during the course of incident. Therefore, it can safely be inferred that both the appellants had fired shots during the course of incident in furtherance of their common intention. The following exposition of law is relevant regarding common intention:

Common Intention of Appellants

81. In this regard the provisions of Section 34 I.P.C. are relevant, which are being reproduced as under:

Section 34. Acts done by several persons in furtherance of common intention.- When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

Hon'ble Supreme Court in State of U.P. Vs. Ganga Ram and others : 2006 (1) ALJ 298 SC has observed as under:

"16. Learned Counsel for the respondents submitted that in any event the two accused namely Raghubir and Lal Singh, who have been described as actual assailants, have expired and no active part has been attributed to the appellants namely Ganga Ram and Rajendra Singh, they are entitled to be acquitted. In this connection, learned counsel has relied upon the decision of this Court rendered in Mithu Singh Vs. State of Punjab, (2001) 4 SCC 193, where this Court has held that to substantiate a charge under Section 302 with the aid of Section 34 it must be shown that the criminal act complained against was done by one of the accused persons in furtherance of the common intention of both. An inference as to the intention shall have to be drawn from the acts or conduct of the accused or other relevant circumstances, as available. No quarrel over the proposition of Law.

17. Reliance has also been placed on the decision of this Court rendered in State of Rajasthan vs. Kishan Singh & Ors., (2002) 10 SCC 160, where this Court has held that two of the accused were also tried for substantive offence under Section 302 and the Trial Court acquitted the two accused who were tried for substantive offence under Section 302 and convicted the remaining three under Section 302 with the aid of Section 34. It was held that since the charge on substantive offence under Section 302 has not been established, the conviction of the other accused under Section 302 read with 34 was not maintainable. In our view, the aforesaid decisions cited by the learned counsel are of no help to the accused. This submission, in our view, is totally misconceived. In the present case, the conviction recorded by the Trial Court was under Section 302 with the aid of Section 34. The two accused armed with country made pistols accompanied the other accused armed with SBBL gun and DBBL gun respectively went to the place of occurrence, way laid the deceased and party and attacked the deceased. It cannot be said that they accompanied the other accused as an idle curiosity. The aforesaid circumstances, would clearly infer the intention of the present two accused for committing an offence in furtherance of common intention. Their conviction under Section 302 with the aid of Section 34 cannot be said to be unjustified."

Hon'ble Supreme Court in the case of Harbans Kaur Vs. State of Haryana : 2005 SCC (Crl.) 1213 has observed as under:

"Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab (AIR 1977 SC 109), the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.

As it originally stood the Section 34 was in the following terms:

"When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone."

In 1870, it was amended by the insertion of the words "in furtherance of the common intention of all" after the word "persons" and before the word "each", so as to make the object of Section 34 clear. This position was noted in Mahbub Shah v. Emperor (AIR 1945 Privy Council 118).

The Section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh (AIR 1993 SC 1899), Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.

The above position was highlighted recently Anil Sharma and Others v. State of Jharkhand [2004 (5) SCC 679].

If the factual scenario as noted above is considered in the background of legal principles set out above, the inevitable conclusion is that Section 34 has been rightly applied."

Hon'ble Supreme Court in the case of Israr Vs. State of UP, : 2005 SCC (Crl.) 1260 has observed as follows:

"Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab, AIR 1977 SC 109, the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.

As it originally stood the Section 34 was in the following terms:

"When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone."

In 1870, it was amended by the insertion of the words "in furterance of the common intention of all" after the word "persons" and before the word "each", so as to make the object of Section 34 clear. This position was noted in Mahbub Shah v. Emperor, AIR (1945) Privy Council 118.

The Section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh, AIR (1993) SC 1899, Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused. The above position was highlighted recently in Anil Sharma and Ors. v. Stale of Jharkahand, [2004] 5 SCC 679.

In Abrahim Sheikh & Ors. v. State of West Bengal, AIR (1964) SC 1263 this Court stated that no doubt a person is only responsible ordinarily for what he does and Section 38 IPC ensures that. But Section 34 as well and Section 35 provided that if the criminal act is the result of the common intention, then every person who did the criminal act with such intention would be responsible for the total offence irrespective of the share which he had in its perpetration. The logic, highlighted illuminatingty by the Judicial Committee in the illustrious case of Barendra Kumar Ghosh v. Emperor, AIR (1925) PC1, is that in crimes as in other things "they also serve who only stand and wait".

Section 34 has, therefore, been rightly applied.

In view of the legal and factual position noted above, the irresistible conclusion is that the accused appellant ha been rightly held guilty and convicted. There is no merit in this appeal which is accordingly dismissed."

Hon'ble Supreme Court in State of Madhya Pradesh Vs. Deshraj, AIR : 2004 (3) SC 2764 has observed as under:

"Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab (AIR 1977 SC 109), the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.

The Section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh (AIR 1993 SC 1899), Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused."

In case of Ramcharanreddy Chennareddy Vs. State of A.P. :AIR 1999 SC 994, it is held by Hon'ble Supreme Court that if all accused took part in occurrence armed with sickle, battle, excess daggors and sticks and they mercilessly assaulted victim, all accused persons shall be liable for offence committed by them.

In case of Charan Singh Vs. State of Punjab, AIR 1998 SC 323, Hon'ble Supreme Court has held that if all accused persons were waiting for complainant and have taken active part in occurrence all persons shall be liable.

Hon'ble Supreme Court in Amrik Singh Vs. State of Punjab : 1999 Crl.L.J. 463 has observed as under:

"2. However, it was contended by the learned Counsel for the appellant that the three eye witnesses had not specifically stated before the police when their statements were recorded under Section 161 Cr.P.C. that Amrik Singh had given the fatal blow to the deceased. Merely because the witnesses haver not specifically stated which blow was given by which accused their evidence cannot be discarded if it is found to be otherwise reliable. The eye-witnesses had received injuries during this very incident; and therefore, their presence at the time of the incident has to be believed. They have specifically stated that after reaching the spot on hearing cries, they had prevented the accused from giving further blows to Manna Singh. With respect to this part of their evidence, they were not contradicted by their police statements. Therefore, there can be no doubt regarding their having seen the blows given by the appellant merely because they had not specifically referred to them in their police statements. The Courts below have thought it fit to believe the evidence against Amrik Singh and we see no reason to differ from the finding recorded in that behalf.

3. As we find no substance in this appeal, it is dismissed."

Hon'ble Supreme Court in the case of Hari Ram Vs. State of U.P. : (2004) 8 SCC 146 has observed as under:

"10. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab (AIR 1977 SC 109), the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.

11. As it originally stood the Section 34 was in the following terms:

"34. When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone."

The above position was highlighted recently Anil Sharma and Others v. State of Jharkhand [2004 (5) SCC 679].

Section 34 IPC has clear application to the facts of the case and has been rightly applied.

Hon'ble Supreme Court in Surendra Chauhan Vs. State of Madhya Pradesh : 2000 Cri.L.J. 1789 has observed as follows:

"10. It is contended that Chauhan could not be convicted with the aid of Section 34 IPC. Section 34 IPC is as under: -

"34. Acts done by several persons in furtherance of common intention. When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."

11. Under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design is itself tantamount to actual participation in the criminal act. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them. {Ramaswami Ayhangar & Ors. vs. State of Tamil Nadu [(1976) 3 SCC 779]}. The existence of common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. For the purpose of common intention even the participation in the commission of the offence need not be proved in all cases. The common intention can develop even during the course of an occurrence. {Rajesh Govind Jagesha vs. State of Maharashtra [(1999) 8 SCC 428]}. To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established: (I) common intention and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case.

12.There is concurrent finding that Sharma with intent to cause the miscarriage of Alpana with child by his act caused her death and the act was done in furtherance of the common intention of Chauhan. He has thus been rightly convicted under Section 314/34 IPC."

82. PW-4 Dr. Devendra Chaudhary has medically examined PW-2 Munnal Lal on 02.01.2003 at 9.00 p.m. and found the following injuries on his body:

i) Abrasion of size 1.5 cm x 0.5 cm present over top of head 12 cm above from upper border of left ear

ii) Abrasion of size 0.5 cm x 0.3 cm present over dorsol surface of little finger of left hand

iii) abrasion of size 1 cm x 0.5 cm present over posterior surface of right elbow joint reddish in colour.

83. PW-4 Dr. Devendra Chaudhary has opined that all the aforesaid injuries were of simple in nature and caused by blunt object. Duration was found fresh.

84. PW.-4 Dr. Devendra Chaudhary has also medically examined PW-3 Chhunnapal on 02.01.2003 at 9.15 p.m. and found following injuries:

i) Contusion of size 7 cm x 2 cm present over left side back of chest 2 cm below from lower angle of left scapula.

ii) Abraded contusion of size 3 cm x 2 cm present over left side forehead, 1 cm above from outer corner of left eye-brow.

iii) Contused swelling of size 10 cm x 7 cm present over right upper arm 12 cm below from top of right shoulder. Injury kept under observation and advised for X-ray.

Injury no.1 and 2 were found of simple in nature, caused by blunt object.

Injury No.3 was also caused by blunt object. Duration was found fresh.

85. PW-4 has proved injury reports of PW-2 and PW-3 as Ext Ka-3 and Ext Ka-4.

86. It is pertinent to mention here that PW-4 has opined that injuries sustained by co-accused Ram Niwas was caused on 02.01.2003 at 2.00 p.m., but scab found in injury no. 1 indicates that injury no.1 of co-accused Ram Niwas was not fresh, because scab was found on it.

87. PW-4 has further opined to extend benefit to co-accused Ram Niwas that his injuries could have been sustained by rubbing of firearm, whereas co-accused Ram Niwas accepted in his statement recorded under Section 313 Cr.P.C. that he sustained these injuries on 04.01.2003 while police personnel assaulted him.

88. Therefore, opinion given by PW-4 in favour of the co-accused Ram Niwas is of no avail on the basis of his statement recorded under Section 313 Cr.P.C. Co-accused Ram Niwas neither had not sustained injury no.1 by rubbing of firearm nor resulted due to assault made by the complainant party during course of incident.

89. PW-4 has also opined that injury no.1 of PW-2 Munnal Lal could be caused by rubbing of firearm. PW-2 has stated in this regard that one fire shot out of 05-06 shots fired by appellants stuck in his head. Therefore, injury no.1 sustained by PW-2 Munnal Lal might have been caused by rubbing of fire shot made by accused Ram Kishore. No material contradiction was elicited during course of his cross-examination. Learned defence counsel has suggested to him only that these injuries might have been caused to Munna Lal by falling down or by stick or door or "chaukhat". Likewise, it was suggested by learned defence counsel that Chhunnapal might have sustained injury no.1 by stick.

90. The evidence adduced by PW-2 and PW-3 is corroborated by medical evidence adduced by PW-4 Dr. Devendra Chaudhary and no material contradiction appears in their statements.

91. PW-1 Dr. R. K. Potwal has conducted autopsy on the corpse of the deceased Chhotkannu. He found rigor mortis all over the dead body. He has found the following ante-mortem injury, which are as follows:

i) Firearm wound of entry of size 1.5 cm x 1 cm was present on left side upper part of chest 4 cm lateral to left nipple at 2.0 O'clock position Margins were inverted and lacerated. Blackening was present around the wound. direction was front to back towards right and downward.

ii) Firearm wound of exit of size 2 cm x 1 cm connecting with injury no.1 present on right side of back 5 cm below interior angle of right scapula margins everted and lacerated at 9.00 vertibra level.

92. Pleura was lacerated. Both lungs were lacerated. 1.5 litre clotted blood was found in chest cavity. Large vessels were collapsed. PW-1 has further stated that two ounce pasty material, un-digested food was found.

93. PW-1 has opined that death occurred due to shock and hemorrhage, as a result of ante-mortem firearm injury.

94. PW-2 collected "dhoti", vest, underwear and shirt of the deceased and handed over it to the police personnel. He has proved post-mortem report (Ext Ka-1) and opined that Chhotkannu sustained firearm injury possibly on 02.01.2003 at 2.00 p.m., by single rifle bullet shot fired from rifle.

95. PW-1 during his cross-examination has stated that deceased Chhotkannu sustained the aforesaid firearm injury from single bullet fire within distance of 6.00 feet. The aforesaid firearm injury could not be caused by 12 bore cartridge. He had not noted blackening and charring available on clothes of the deceased. He has further stated that the deceased Chhotkannu might have sustained firearm injury on 02.01.2003 prior to 10.00 p.m.

96. No material contradiction was elicited during the course of cross-examination of PW-1. PW-2 and PW-3 injured witnesses have proved this fact that the deceased sustained firearm injury during the course of incident on 02.01.2003 at 2.00 p.m.. Therefore, suggestion given to PW-1 during his cross-examination does not extend any benefit of the appellants that the deceased might have sustained this injury at 10.00 p.m.

97. PW-6 Station House Officer Shyamnath Singh, Investigating Officer has stated that he took over investigation on 02.01.2003 and recorded statement of the complainant Munna Lal, injured Chhunnapal and witness Sripal. He inspected the place of occurrence on pointing of villagers and prepared Site Plan (Ext Ka-8). He has further stated that he collected plain and blood stained soil from the place of occurrence and prepared recovery memo (Ext Ka-9). He also collected one empty cartridge/shell of 315 bore and prepared the recovery memo (Ext Ka-10). He searched the accused persons on 03.01.2003. He recorded statements of witnesses of inquest report on 04.01.2003. The accused appellant Ram Kishore was arrested on 05.01.2003 and PW-6 recorded his statement. The appellant Ram Gopal surrendered before the Court on 15.02.2003. He copied post-mortem report in Case Diary on 16.01.2003.

98. PW-6 has also stated that he sent case property for chemical examination to Forensic Science Laboratory on 21.02.2003. He submitted charge-sheet (Ext Ka-11) against Ram Niwas and Ram Gopal on 21.03.2003 and submitted charge-sheet (Ext Ka12) on 17.4.2003 against Ram Kishore and Ram Pratap by showing them absconder.

99. PW-6 has further stated that Sub-Inspector Ram Roop Singh was posted with him and he identified his signature and hand writing, who prepared inquest report of deceased Chhotkannu and documents i.e. Challan Lash, Photo Lash, letter to C.M.O., letter to R.I. and sample of seal in his presence. PW-6 has proved these documents as Ext Ka-13 to Ka-18.

100. PW -6 in his cross-examination has stated that he has not signed inquest report, but Sub-Inspector Ram Roop Singh prepared it in his presence. Kripa Shanker was mentioned as eye-witness in the written report by PW-2, but PW-6 has not recorded his statement, it may be fault of PW-6, which can not adversely affect the prosecution version.

101. PW-6 has further stated in his cross-examination that he saw the injury sustained by the deceased Chhotkannu. He has refuted this suggestion that he got prepared false and fabricated inquest report from Sub-Inspector Ram Roop Singh. The statement given by PW-6 in his cross-examination that it is mentioned in F.I.R. by the complainant that fires were shot from both the sides Western and Eastern by the appellant does not extend any benefit to the appellants, because deceased Chhotkannu, PW-2 complainant Munna Lal and PW-3 Chhunnapal were not armed with any weapon. On the other hand co-accused Ram Niwas has stated specifically in his statement recorded under Section 313 Cr.P.C. that he sustained injury in assault made by police personnel. Therefore, PW-2 and PW-3 witnesses or the deceased had not assaulted the accused persons during course of incident.

102. It is relevant to mention here that no suggestion was given on behalf of co-accused Ram Niwas to PW-6 that police personnel ever assaulted him and he was arrested on the date of incident and detained illegally and his false arrest was shown on 05.01.2003.

103. PW-6 has specifically stated that he had not found any pallets or wads of cartridge nor he found any mark of firing on houses.

104. There is no substance in argument of learned counsel for the appellants that during alleged indiscriminate firing made by accused persons, during course of incident indicates that some fire shots might have stuck on wall of houses which were situated near place of occurrence.

105. On perusal of Site Plan (Ext Ka-8) it reveal that infront of place of occurrence marked "X", there is open area and no house comes in between the place marked "B", marked "A" and marked "X". Therefore, there was no occasion for the Investigating Officer-PW-6 to find any mark of fire shots on wall of houses situated at the place of occurrence.

106. No other material contradiction was elicited during cross-examination of PW-6. He has proved the aforesaid documents, which were prepared by him and Sub Inspector Ram Roop Singh.

107. PW-5 Head Constable Hemraj has proved check F.I.R. (Ext Ka-6) and G.D. (Ext Ka-7) of registration of crime. PW-5 in his cross-examination has stated that he prepared these documents on the basis of written report submitted by the complainant. Learned defence counsel has conducted cross-examination on the fact only that it is not mentioned in the written report specially that Chhotkannu sustained injury from fire shot by which, accused or he had not read over check F.I.R.and apprised the complainant facts narrated by him in F.I.R.

108. It is settled law that minute details of the incident are not required to be mentioned in the F.I.R. by the complainant. Primary purpose of F.I.R. is to set the law in motion.

109. It is mentioned in the written report by complainant PW-2 that Ram Niwas called his brother Ram Kishore and Ram Pratap at the place of occurrence. Ram Kishore had wielded rifle and Ram Pratap had wielded gun and they made indiscriminate firing. Chhotkannu sustained firearm injury and fell down on the place of occurrence. Therefore, sufficient facts were written by the complainant in his written report and there was no confusion on perusal of the written report (Ext Ka-2).

110. Learned counsel for the appellants has argued that witnesses Sripal, Shukkha, Kripa Shanker and Ram Saran also reached at the place of occurrence and witnessed the incident of this crime, but no independent witness or the aforesaid persons were produced on behalf of prosecution during course of incident.

111. Learned counsel for the appellants has further argued that only interested witnesses PW-2 and PW-3, relative of the deceased Chhotkannu have been produced by the prosecution.

112. The following exposition of law is relevant regarding production of relative, interested and independent witness:

Exposition of Law regarding related and independent and interested witnesses as under:-

In the case of Rupinder Singh Sandhu v. State of Punjab, (2018) 16 SCC 475 Hon'ble Apex Court in paragraph no. 50 regarding related witness has held as under:-

50. The fact that PWs 3 and 4 are related to the deceased Gurnam Singh is not in dispute. The existence of such relationship by itself does not render the evidence of PWs 3 and 4 untrustworthy. This Court has repeatedly held so and also held that the related witnesses are less likely to implicate innocent persons exonerating the real culprits. [ See Rizan v. State of Chhattisgarh, (2003) 2 SCC 661, p. 667, para 6 : 2003 SCC (Cri) 664"6. We shall first deal with the contention regarding interestedness of the witnesses for furthering the prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible."Also see, Dalip Singhv.State of Punjab, AIR 1953 SC 364, p. 366, para 26 : 1953 Cri LJ 1465"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."] In the case of State of U.P. v. Sheo Sanehi, reported in (2004) 12 SCC 347 Hon'ble Apex Court in paragraph nos. 17, 18 and 21 regarding related witness has held as under:-

17. Coming to the ocular version of the occurrence, the prosecution has relied upon the evidence of three eyewitnesses viz. PWs 1, 3 and 4. PW 1 has supported the prosecution case in all material particulars which is consistent with his subsequent statement made before the police. The ground of attack to his evidence was that he was a resident of a village which is situated at a distance of 40 kilometres from the place of occurrence and he had no occasion to be present at the place of occurrence. He stated that his mother was adopted by one Smt Mahadei of Village Siromanpur where the occurrence had taken place, he was born in Village Siromanpur and was residing in the said village with his mother Smt Bishandei since his childhood inasmuch as he was looking after cultivation of her lands. The fact that his mother was adopted by Smt Mahadei would be apparent from the registered Will dated 11-8-1977 (Ext. Ka-52) executed by Smt Mahadei in favour of his mother showing that she was her adopted daughter and was residing with her. Ext. Ka-50 and Ext. Ka-51 are the extracts of khatauni and khasra in which name of Bishandei, mother of this witness, is recorded along with Smt Mahadei in relation to the agricultural lands. That apart, Exts. 13, 14 and 15 are transfer certificates, high school certificate and marksheet in relation to this witness which show that he had passed out from a school situated in Village Siromanpur. Apart from the aforesaid documents, invitation card Ext. 16 has been filed to show that the sacred thread ceremony of PW 1 as well as his younger brother Subhendu Kumar was held in the year 1975 in Village Siromanpur. Besides that, letters Exts. 17 to 20 have been filed to show that he had received the same at his address in Village Siromanpur. Ext. Ka-47 is gun licence in the name of PW 1 in which he was shown to be a resident of Village Siromanpur. These facts clearly show that PW 1 was resident of Village Siromanpur, as such his presence at the place of occurrence and time of occurrence cannot be doubted.

18. So far as PWs 3 and 4 are concerned, PW 3 is nephew of deceased Devi Din whereas PW 4 is widow of the said deceased, as such they are natural witnesses and their presence at the alleged place of occurrence cannot be doubted. The names of these two witnesses were disclosed in the first information report itself and they supported the prosecution case in all material particulars in their statements made before the police as well as in court and no infirmity could be pointed out in their evidence, excepting that they were related to the deceased persons and inimical to the accused. It is well settled that merely because a witness is related to the prosecution party and inimical to the accused persons, his evidence cannot be discarded if the same is otherwise trustworthy. In the case on hand, we do not find any infirmity whatsoever in the evidence of PWs 1, 3 and 4, as such it is not possible to disbelieve them, especially in view of the fact that their evidence is supported by medical evidence as well as objective findings of the investigating officer, but the High Court has committed a serious error in discarding their testimonies on this score.

Hon'ble Supreme Court in Nirmal Singh and another Vs. State of Bihar reported in (2005) 9 SCC 725 has observed as under:-

.....With these facts in the background, we have to consider whether the ocular testimony of Pws. 1, 3, 4, 5, 6, 8 & 11 should be discarded. It is no doubt true that the eye witnesses are related to each other but that is to be expected since the occurrence took place in the dalan of the house of the deceased. The evidence of the eye witnesses does not suffer from any infirmity, and appears to be convicting. No significant contradiction or infirmity has been brought to our notice.

In these circumstances, we do not feel persuaded to discard the case of the prosecution only on account of some infirmities which we have noticed earlier. There appears to be no reason why so many eye witnesses should falsely implicate the appellants, and there is in fact, nothing on record to suggest that the witnesses had any reason to falsely implicate them.

Hon'ble Supreme Court in the case of Hukum Singh and others Vs. State of Rajasthan reported in 2000 (7) SCC 490 has held as under:-

8. Bhupender Pal (PW. 4) and Ram Pyari (PW. 5) were the two eye witnesses examined by the prosecution. The fact that they were present at the scene of occurrence could not be disputed nor the same has been disputed by the accused. They sustained injuries at the hands of the assailants and the doctor who noted such injuries had testified about them in the Court as PW. 9. The version spoken to by PW. 4 in Court is substantially a reiteration of the version which he supplied to the police as early as 8.40 P.M. on the same night. That became the basis for the FIR. The Sessions Court refused to believe the testimony of those witnesses on the erroneous perception that they are "interested witnesses". The only premise for dubbing them as "interested witnesses" is that they were the kith and kin of the deceased. Why should such witnesses be termed as interested witnesses? If they had seen the occurrence they would certainly have the interest to bring the offenders of the murder of their breadwinner to book Normally the kith and kin of the deceased, if they had seen the occurrence would not absolve the real offenders and involve innocent persons for that murder. [Vide Dalip Singh v. State of Punjab MANU/SC/0031/1953 : [1954] 1 SCR 145, Guli Chand v. State of Rajasthan MANU/SC/0107/1973 : 1974CriLJ331 and Dalbir Kaur v. State of Punjab MANU/SC/0144/1976 : 1977CriLJ273 ].

15. The situation in a case where the prosecution cited two categories of witnesses to the occurrence, one consisting of persons closely related to the victim and the other consisting of witnesses who have no such relation, the Public Prosecutor's duty to the Court may require him to produce witnesses from the latter category also subject to his discretion to limit to one or two among them. But if the Public Prosecutor got reliable information that any one among that category would not support the prosecution version he is free to state in Court about that fact and skip that witness being examined as a prosecution witness. It is open to the defence to cite him and examine him as defence witness. The decision in this regard has to be taken by the Public Prosecutor in a fair manner. He can interview the witness before hand to enable him to know well in advance the stand which that particular person would be adopting when examined as a witness in Court.

Hon'ble Supreme Court in State of Rajasthan Vs. Hanuman reported in AIR 2001 SC 282 has held as under:-

The position is well settled that evidence of eye-witnesses cannot be discarded merely on the ground that they are relatives of the deceased. Normally close relatives of the deceased are not likely to falsely implicate a person in the incident leading to the death of the relative unless there are very strong and cogent reasons to accept such criticism.

In Surendra Narain alias Munna Pandey vs. State of U.P. reported in AIR 1998 SC 192, Hon'ble Apex Court has held as under:-

...Turning to the facts of this case, it is seen that PW 1 had mentioned the name of the accused in the FIR which was given within 15 minutes of the occurrence. The other two eye witnesses, PW 2 and PW 3 also knew the accused previously. The crucial factor is that the accused was related to the deceased as a son of his "Sala" and PW 1 was also related to the deceased. The accused had never denied the relationship. As the trial Judge has observed, "there is not a scintilla of evidence" that PW 1 had a grudge against the accused. There is also no evidence that the wife of the deceased had any enmity with the accused. She would not have allowed a false case to be foisted on her brother's son. The accused was not traceable from 7.4.77 to 13.5.77. On the facts of the case, his application for the test identification parade on his surrender after such a long time does not appear to be bona fide. In any event, the evidence on record as accepted by the Courts below is sufficient to prove the guilt of the accused. Further the point does not seem to have been argued before the trial court or the High Court. On the facts of this case there is no doubt that the failure to hold a test identification parade in spite of an order passed by the Sessions Court is not fatal to the prosecution.

The second contention is without any merit. The evidence adduced by the prosecution is adequate to prove the charge. The non-examination of another person who was on the scene of occurrence does not make the evidence of PWs 1 to 3 unreliable. It is needless to point out that evidence has to be weighed and not counted.

In the case of Banti @ Guddu vs. State of Madhya Pradesh reported in AIR 2004 SC 261, Hon'ble Apex Court has held as under:-

"...Coming to the plea that the presence of PWs 1 and 2 at the spot of occurrence is doubtful, it is to be noticed that both PWs 1 and 2 were cross-examined at length. Nothing Infirm has been elicited to cast doubt on their veracity. If the lack of motive as pleaded by the accused appellants is a factor, at the same time it cannot be lost sight of that, there is no reason as to why PW-1 would falsely implicate the accused persons. There was no suggestion of any motive for such alleged false implication. Merely because PW-1 is a relation of the deceased, and PW-2 was known to him, that per se cannot be a ground to discard their evidence. Careful scrutiny has been done of their evidence and it has been found acceptable by both the trial Court and the High Court. We find no reason to take a different view.

Hon'ble Supreme Court (Division Bench) in the case of Shiv Ram and anr. vs. State of U.P. reported in (1998) 1 SCC 149, in para16 has observed as under:-

"16. ...... The witnesses further admitted that many persons had gathered at the place of occurrence, if this be so it was very much necessary for the prosecution to examine some independent witnesses to lend assurance to the credibility of the evidence of these two eyewitnesses. These submissions do not impress us at all. Nowadays it is a common tendency that no outsider would like to get involved in a criminal case much less in the crime of present magnitude and, therefore, it was quite natural that no independent witness would come forward to assist the prosecution. It is well settled that the evidence of witnesses cannot be discredited only on the ground that they are close relatives of the deceased persons. All that is required in such a situation is that the court must scrutinize the evidence of such witnesses with utmost care and caution. The magnitude of the present crime and nature of prosecution evidence has put us on guard to appreciate the evidence of these two eye witnesses with utmost care and caution. We have done this exercise and we are unable to be persuaded to discard the evidence of these two witnesses on the grounds urged before us. The evidence of both these witnesses in our considered view is absolutely straightforward, unblemished and without any infirmity. The first information report which was lodged within four hours, naming all the accused also lends asurance to our conviction that the evidence of these two witnesses is trustworthy and cannot be discarded. The contentions of the learned counsel for the accused, therefore, stand rejected."

In the case of Yogesh Singh v. Mahabeer Singh : (2017) 11 SCC 195, Hon'ble Apex Court has observed as under:

Testimony of interested/inimical witnesses

24. On the issue of appreciation of evidence of interested witnesses, Dalip Singh v.State of Punjab [Dalip Singh v. State of Punjab, AIR 1953 SC 364 : 1954 SCR 145 : 1953 Cri LJ 1465] is one of the earliest cases on the point. In that case, it was held as follows: (AIR p. 366, para 26) "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."

25. Similarly, in Piara Singh v. State of Punjab [Piara Singh v. State of Punjab, (1977) 4 SCC 452 : 1977 SCC (Cri) 614] , this Court held: (SCC p. 455, para 4) "4. ... It is well settled that the evidence of interested or inimical witnesses is to be scrutinised with care but cannot be rejected merely on the ground of being a partisan evidence. If on a perusal of the evidence the Court is satisfied that the evidence is creditworthy there is no bar in the Court relying on the said evidence."

26. In Hari Obula Reddy v. State of A.P. [Hari Obula Reddy v. State of A.P., (1981) 3 SCC 675 : 1981 SCC (Cri) 795] , a three-Judge Bench of this Court observed: (SCC pp. 683-84, para 13) "13. ... it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."

27. Again, in Ramashish Rai v. Jagdish Singh [Ramashish Rai v. Jagdish Singh, (2005) 10 SCC 498 : 2005 SCC (Cri) 1611] , the following observations were made by this Court: (SCC p. 501, para 7) "7. ... The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double-edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence."

28. A survey of the judicial pronouncements of this Court on this point leads to the inescapable conclusion that the evidence of a closely related witness is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (See Anil Rai v. State of Bihar[Anil Rai v. State of Bihar, (2001) 7 SCC 318 : 2001 SCC (Cri) 1009] , State of U.P. v.Jagdeo [State of U.P. v. Jagdeo, (2003) 1 SCC 456 : 2003 SCC (Cri) 351] , Bhagaloo Lodh v. State of U.P.[Bhagaloo Lodh v. State of U.P., (2011) 13 SCC 206 : (2012) 1 SCC (Cri) 813] , Dahari v. State of U.P. [Dahari v. State of U.P., (2012) 10 SCC 256 : (2013) 1 SCC (Cri) 22] , Raju v. State of T.N. [Raju v. State of T.N., (2012) 12 SCC 701 : (2012) 4 SCC (Cri) 184] , Gangabhavani v. Rayapati Venkat Reddy[Gangabhavani v. Rayapati Venkat Reddy, (2013) 15 SCC 298 : (2014) 6 SCC (Cri) 182] and Jodhan v. State of M.P. [Jodhan v. State of M.P., (2015) 11 SCC 52 : (2015) 4 SCC (Cri) 275] ) INDEPENDENT WITNESS 50 - The learned counsel for the respondents has also sought to assail the prosecution version on the ground of lack of independent witnesses. We are not impressed by this submission in the light of the observations made by this Court in Darya Singh v. State of Punjab [Darya Singh v. State of Punjab, AIR 1965 SC 328 : (1964) 3 SCR 397 : (1965) 1 Cri LJ 350] , wherein it was observed: (AIR p. 333, para 12) "12. ... It is well known that in villages where murders are committed as a result of factions existing in the village or in consequence of family feuds, independent villagers are generally reluctant to give evidence because they are afraid that giving evidence might invite the wrath of the assailants and might expose them to very serious risks. It is quite true that it is the duty of a citizen to assist the prosecution by giving evidence and helping the administration of criminal law to bring the offender to book, but it would be wholly unrealistic to suggest that if the prosecution is not able to bring independent witnesses to the Court because they are afraid to give evidence, that itself should be treated as an infirmity in the prosecution case so as to justify the defence contention that the evidence actually adduced should be disbelieved on that ground alone without examining its merits."

51. Similarly, in Raghubir Singh v. State of U.P. [Raghubir Singh v. State of U.P., (1972) 3 SCC 79 : 1972 SCC (Cri) 399] , it was held that the prosecution is not bound to produce all the witnesses said to have seen the occurrence. Material witnesses considered necessary by the prosecution for unfolding the prosecution story alone need be produced without unnecessary and redundant multiplication of witnesses. In this connection, general reluctance of an average villager to appear as a witness and get himself involved in cases of rival village factions when tempers on both sides are running high, has to be borne in mind.

The Hon'ble Supreme Court in the case of Vijendra Singh v. State of U.P., :(2017) 11 SCC 129 has observed as follows:

30. It is next contended by Mr Giri, learned counsel for the appellants that all the eyewitnesses are related to the deceased Badan Pal and they being interested witnesses, their version requires scrutiny with care, caution and circumspection and when their evidence is scanned with the said parameters, it does not withstand the said test for which the case set forth by the prosecution gets corroded and the principle of beyond reasonable doubt gets shattered. The aforesaid submission, as we perceive, has no legs to stand upon, for PWs 1 to 3 have deposed in detail about the previous enmity between the parties, their presence at the spot, the weapons the accused persons carried, their proximity to the shed and establishment of the identity of all the four accused. They have also testified as regards the deceased lying in a pool of blood. There is no reason why they would implicate the appellants for the murder of their relation leaving behind the real culprit. That apart, nothing has been elicited in the cross-examination for which their testimony can be discredited.

31. In this regard reference to a passage from Hari Obula Reddy v. State of A.P.[Hari Obula Reddy v. State of A.P., (1981) 3 SCC 675 : 1981 SCC (Cri) 795] would be fruitful. In the said case, a three-Judge Bench has ruled that: (SCC pp. 683-84, para 13) "[it cannot] be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of the interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."

It is worthy to note that there is a distinction between a witness who is related and an interested witness. A relative is a natural witness. The Court in Kartik Malhar v.State of Bihar [Kartik Malhar v. State of Bihar, (1996) 1 SCC 614 : 1996 SCC (Cri) 188] has opined that a close relative who is a natural witness cannot be regarded as an interested witness, for the term "interested" postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some animus or for some other reason.

113. On perusal of record of trial Court it reveal that learned Amicus Curiae had moved application on 08.10.2003 for adjournment. On this date witness Munna Lal-complainant, Chhunnapal and Sripal were present. Therefore, their evidence could not be recorded during course of trial. On 08.10.2003 witness Chhunnapal Singh and Sripal were summoned for date 08.10.2003 by the prosecution. On the other hand, PW-2 complainant and PW-3 Chhunnapal are injured witnesses and on the basis of their evidence charges framed against the appellants have been proved by the prosecution beyond reasonable doubt. Both the appellants have participated in the incident with common intention and made indiscriminate firing, as a result of which Chhotkannu sustained firearm injury proved by PW-1 Dr. R.K. Potwal. There evidence is also supported by statement of PW-4 Dr. Devendra Chaudhary.

114. There is no substance in argument of learned counsel for the appellants that appellant Ram Pratap could not be convicted with the aid of provisions of Section 34 I.P.C.. The learned trial Court has rightly convicted the appellants with aid of provisions of Section 34, finding their active participation and common intention regarding indiscriminating firing made by them during course of incident.

115. Learned counsel for the appellant has further argued on the basis of evidence adduced by the complainant PW-2 and PW-3 that this crime was committed by the appellants in spur of the moments or heat of passion. Therefore, it should be converted from offence punishable under Section 302 I.P.C. to offence punishable under Section 304 I.P.C. In this regard the following exposition of law is relevant.

116. The following expositions of law are also relevant on the point of conversion of punishment under Section 302 I.P.C. and Section 304 Part (I) and (II) of the I.P.C.

Hon'ble Supreme Court in the case of State of A.P. v. Rayavarapu Punnayya, (1976) 4 SCC 382 has held as under:

2. In Rompicheria village, there were factions belonging to three major communities viz. Reddys, Kammas and Bhatrajus. Rayarapu (Respondent 1 herein) was the leader of Kamma faction, while Chopparapu Subbareddi was the leader of the Reddys. In politics, the Reddys were supporting the Congress party, while Kammas were supporters of the Swatantra party. There was bad blood between the two factions which were proceeded against under Section 107 CrPC. In the panchayat elections of 1954, a clash took place between the two parties. A member of the Kamma faction was murdered. Consequently, nine persons belonging to the Reddy faction were prosecuted for that murder. Other incidents also took place in which these warring factions were involved. So much so, a punitive police force was stationed in this village to keep the peace during the period from March 1966 to September 1967. Sarikonda Kotamraju, the deceased person in the instant case, was the leader of Bhatrajus. In order to devise protective measures against the onslaughts of their opponents, the Bhatrajus held a meeting at the house of the deceased, wherein they resolved to defend themselves against the aggressive actions of the respondents and their partymen. PW 1, a member of Bhatrajus faction has a cattle shed. The passage to this cattle shed was blocked by the other party. The deceased took PW 1 to Police Station Nekarikal and got a report lodged there. On July 22, 1968, the Sub-Inspector of Police came to the village and inspected the disputed wall in the presence of the parties. The Sub-Inspector went away directing both the parties to come to the police station on the following morning so that a compromise might be effected.

3. Another case arising out of a report made to the police by one Kallam Kotireddi against Accused 2 and 3 and another in respect of offences under Sections 324, 323 and 325 of the Penal Code was pending before a magistrate at Narasaraopet and the next date for hearing fixed in that case was July 23, 1968.

4. On the morning of July 23, 1968, at about 6.30 a.m., PWs 1 and 2 and the deceased boarded bus No. APZ 2607 at Rompicheria for going to Nekarikal. Some minutes later, Accused 1 to 5 (hereinafter referred to as A1, A2, A3, A4 and A5) also got into the same bus. The accused had obtained tickets for proceeding to Narasaraopet. When the bus stopped at Nekarikal crossroads, at about 7.30 a.m., the deceased and his companions alighted for going to the police station. The five accused also got down. The deceased and PW 1 went towards a choultry run by PW 4, while PW 2 went to the roadside to ease himself. Al and A2 went towards the Coffee Hotel, situate near the choultry. From there, they picked up heavy sticks and went after the deceased into the choultry. On seeing the accused, PW 1 ran away towards a hut nearby. The deceased stood up. He was an old man of 55 years. He was not allowed to run. Despite the entreaties made by the deceased with folded hands, Al and A2 indiscriminately pounded the legs and arms of the deceased. One of the bystanders, PW 6, asked the assailants as to why they were mercilessly beating a human being, as if he were a buffalo. The assailants angrily retorted that the witness was nobody to question them and continued the beating till the deceased became unconscious. The accused then threw their sticks at the spot, boarded another vehicle, and went away. The occurrence was witnessed by PWs 1 to 7. The victim was removed by PW 8 to Narasaraopet Hospital in a tempo-car. There, at about 8.45 a.m., Doctor Konda Reddy examined him and found 19 injuries, out of which, no less than 9 were (internally) found to be grievous. They were:

"1.Dislocation of distal end of proximal phalan of left middle finger.

2.Fracture of right radius in its middle.

3.Dislocation of lower end of right ulna.

4.Fracture of lower end of right femur.

5.Fracture of medial malleolus of right tibia.

6.Fracture of lower 1/3 of right fibula.

7.Dislocation of lower end of left ulna.

8.Fracture of upper end of left tibia.

9.Fracture of right patella."

5. Finding the condition of the injured serious, the doctor sent information to the Judicial Magistrate for getting his dying declaration recorded. On Dr K. Reddy's advice, the deceased was immediately removed to the Guntur Hospital where he was examined and given medical aid by Dr Sastri. His dying declaration, Ext. P-5, was also recorded there by a Magistrate (PW 10) at about 8.05 p.m. The deceased, however, succumbed to his injuries at about 4.40 a.m. on July 24, 1968, despite medical aid.

6. The autopsy was conducted by Dr P.S. Sarojini (PW 12) in whose opinion, the injuries found on the deceased were cumulatively sufficient to cause death in the ordinary course of nature. The cause of death, according to the doctor, was shock and haemorrhage resulting from multiple injuries.

7. The trial Judge convicted Al and A2 under Section 302 as well as under Section 302 read with Section 34 of the Penal Code and sentenced each of them to imprisonment for life.

8. On appeal by the convicts, the High Court altered their conviction to one under Section 304 Part II of the Penal Code and reduced their sentence to five years' rigorous imprisonment, each.

12. In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. All "murder" is "culpable homicide" but not vice-versa. Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.

13. The academic distinction between "murder" and "culpable homicide not amounting to murder" has vexed the courts for more than a century. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minutae abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences.

14. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the "intention to cause death" is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by Illustration (b) appended to Section 300.

Section 299 Section 300 A person commits culpable homicide if the act by which the death is caused is done --

Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done --

INTENTION

(a) With the intention of causing death; or (1) With the intention of causing death; or

(b) With the intention of causing such bodily injury as is likely to cause death; or (2) With the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or (3) With the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or KNOWLEDGE

(c) With the knowledge that the act is likely to cause death (4) With the knowledge that the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.

15. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given.

16. In clause (3) of Section 300, instead of the words "likely to cause death" occurring in the corresponding clause (b) of Section 299, the words "sufficient in the ordinary course of nature" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real, and, if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word "likely" in clause (b) of Section 299 conveys the sense of "probable" as distinguished from a mere possibility. The words "bodily injury ... sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature.

17. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant v. State of Kerala [AIR 1966 SC 1874 : 1966 Supp SCR 230 : 1966 Cri LJ 1509.] is an apt illustration of this point.

18. In Virsa Singh v. State of Punjab [AIR 1958 SC 465 : 1958 SCR 1495 : 1958 Cri LJ 818.] Vivian Bose, J. speaking for this Court, explained the meaning and scope of clause (3), thus (at p. 1500):

"The prosecution must prove the following facts before it can bring a case under Section 300, ''thirdly'. First, it must establish quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."

19. Thus according to the rule laid down in Virsa Singh case of even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be "murder". Illustration (c) appended to Section 300 clearly brings out this point.

20. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general -- as distinguished from a particular person or persons -- being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.

21........ a court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder", on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of "murder" contained in Section 300. If the answer to this question is in the negative the offence would be "culpable homicide not amounting to murder", punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be "culpable homicide not amounting to murder", punishable under the first part of Section 304, of the Penal Code.

22. The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages.

34. ......the formidable weapons used by the accused in the beating, the savage manner of its execution, the helpless state of the unarmed victim, the intensity of the violence caused, the callous conduct of the accused in persisting in the assault even against the protest of feeling bystanders -- all, viewed against the background of previous animosity between the parties, irresistibly lead to the conclusion that the injuries caused by the accused to the deceased were intentionally inflicted, and were not accidental. Thus the presence of the first element of clause thirdly of Section 300 had been cogently and convincingly established.

35......According to the medical evidence the injuries of the deceased were cumulatively sufficient in the ordinary course of nature to cause death and the cause of the death was shock and hemorrhage due to the multiple injuries. Hence the second element is also established....

38.....here, a direct casual connection between the act of the accused and the death was established. The injuries were the direct cause of the death. No secondary factor such as gangrene, tetanus ectc. supervened. There was no doubt whatever thet the beating was premeditated and calculated.

39. .....The mere fact that the beating was designedly confined by the assailants to the legs and arms, or that none of the multiple injuries inflicted was individually sufficient in the ordinary course of nature to cause death, will not exclude the application of clause thirdly of Section 300. The expression "bodily injury" in clause thirdly includes also its plural, so that the clause would cover a case where all the injuries intentionally caused by the accused are cumulatively sufficient to cause the death in the ordinary course of nature, even if none of those injuries individually measures upto such sufficiency. The sufficiency spoken of in this clause, as already noticed, is the high probability of death in the ordinary course of nature, and if such sufficiency exists and death is caused and the injury causing it is intentional, the case would fall under clause thirdly of Section 300....

30. Although the learned Judges of the High Court have not specifically referred to the quotation from page 289, of Modi's book on Medical Jurisprudence and Toxicology (1961 Edn.) which was put to Dr Sarojini, in cross-examination, they appear to have derived support from the same for the argument that fractures of such bones "are not ordinarily dangerous"; therefore, the accused could not have intended to cause death but had only knowledge that they were likely by such beating to cause the death of the deceased.

31. It will be worthwhile to extract that quotation from Modi, as a reference to the same was made by Mr Subba Rao before us, also. According to Modi "Fractures are not ordinarily dangerous unless they are compound, when death may occur from loss of blood, if a big vessel is wounded by the split end of a fractured bone".

32. It may be noted, in the first place, that this opinion of the learned Author is couched in too general and wide language. Fractures of some vital bones, such as those of the skull and the vertebral column are generally known to be dangerous to life. Secondly, even this general statement has been qualified by the learned author, by saying that compound fractures involving hemorrhage, are ordinarily dangerous. We have seen, that some of the fractures underneath the injuries of the deceased, were compound fractures accompanied by substantial hemorrhage. In the face of this finding, Modi's opinion far from advancing the contention of the defence, discounts it.

29.......facts, that the High Court was wrong in doubting the medical opinion thet death was caused by shock and also hemorrhage.....

40. For all the foregoing reasons, we are of opinion that the High Court was in error in altering the conviction of the accused-respondent from one under Sections 302, 302/34, to that under Section 304, Part II of the of the Penal Code. Accordingly, we allow this appeal and restore the order of the trial court convicting the accused (Respondent 2 herein) for the offence of murder, with a sentence of imprisonment for life. Respondent 2, if he is not already in jail, shall be arrested and committed to prison to serve out the sentence inflicted on him.

Hon'ble Supreme Court in the case of Lavghanbhai Devjibhai Vasava v. State of Gujarat, (2018) 4 SCC 329 has held as under:

5. As aforesaid, on the conclusion of the trial and after appreciating the oral and documentary evidence, the trial court returned a finding of guilt against the appellant and convicted and sentenced him under Section 302 IPC. As far as the event/occurrence is concerned, that stands proved and to that extent judgments of the courts below are without any infirmity. As mentioned above, the only question is as to whether it was a case for conviction under Section 302 IPC or Section 304 IPC.

6. We have perused the evidence in this behalf. We find that the prosecution case itself proceeds that the incident took place in the spur of moment. On 15-3-2008, when the deceased along with her mother went for labour work in agricultural field and she returned home around noon, she was preparing lunch in the kitchen when, as per the prosecution story, the appellant came to the house and questioned the deceased about delay in cooking lunch. On this, altercation took place between the appellant and his wife. At that stage, the appellant got furious and in a rush of the moment, he picked a wooden object lying near the place of incident and inflicted injury to the deceased. It is also an admitted case of the prosecution that only one single blow was inflicted. The death of Shakuben took place 10 days after the said incident while she was undergoing treatment at Baroda Hospital. This is the case of the prosecution itself.

7. This Court in Dhirendra Kumar v. State of Uttarakhand [Dhirendra Kumar v.State of Uttarakhand, 2015 SCC OnLine SC 163] has laid down the parameters which are to be taken into consideration while deciding the question as to whether a case falls under Section 302 IPC or Section 304 IPC, which are the following:

(a) The circumstances in which the incident took place;

(b) The nature of weapon used;

(c) Whether the weapon was carried or was taken from the spot;

(d) Whether the assault was aimed on vital part of body;

(e) The amount of the force used.

(f) Whether the deceased participated in the sudden fight;

(g) Whether there was any previous enmity;

(h) Whether there was any sudden provocation.

(i) Whether the attack was in the heat of passion; and

(j) Whether the person inflicting the injury took any undue advantage or acted in the cruel or unusual manner.

9. This appeal is, thus, partly allowed. While maintaining the culpability of the appellant, his conviction is altered to Section 304 Part II IPC instead of Section 302 IPC. The appellant has already served 9 years and 3 months of imprisonment approximately. In the facts of this case, we are of the opinion that the sentence of the appellant be reduced to the period already undergone. Ordered accordingly.

Hon'ble Supreme Court in the following paragraphs in the case of Gurwinder Singh v. State of Punjab, (2018) 16 SCC 525 has held as follows:

11. It cannot be held as an invariable proposition that as soon as the accused received the injuries in the same transaction, the complainant party were the aggressors--it cannot be held as a rule that the prosecution is obliged to explain the injuries and on failure of the same, the prosecution case should be disbelieved. It is well settled that before placing the burden on the prosecution to explain the injuries on the person of the accused, two conditions are to be satisfied:

(i) the injuries were sustained by the accused in the same transaction; and

(ii) the injuries sustained by the accused are serious in nature.

12. This Court considered the effect of non-explanation of injuries sustained by the accused person in Takhaji Hiraji v. Kubersing Chamansing [Takhaji Hiraji v.Kubersing Chamansing, (2001) 6 SCC 145 : 2001 SCC (Cri) 1070] and held as under: (SCC p. 154, para 17) "17. The first question which arises for consideration is what is the effect of non-explanation of injuries sustained by the accused persons. In Rajender Singhv. State of Bihar [Rajender Singh v. State of Bihar, (2000) 4 SCC 298 : 2000 SCC (Cri) 796] , Ram Sunder Yadav v. State of Bihar [Ram Sunder Yadav v. State of Bihar, (1998) 7 SCC 365 : 1998 SCC (Cri) 1630] and Vijayee Singh v. State of U.P. [Vijayee Singh v. State of U.P., (1990) 3 SCC 190 : 1990 SCC (Cri) 378] , all three-Judge Bench decisions, the view taken consistently is that it 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 injury on the person of the accused was 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. Where the evidence is clear, cogent and creditworthy and where the court can distinguish the truth from falsehood the mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot by itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case." (emphasis supplied)

13. In the present case, the incident had taken place near the tubewell where both the parties assembled to settle the land dispute. When there was exchange of words, there was a scuffle between both the parties. In the same transaction where Harbhajan Singh was attacked, the accused party also sustained injuries. Apart from the stray statement made by the complainant Sukhwinder Singh in the FIR, the prosecution has not offered any explanation for the injuries sustained by the accused. Since both the accused sustained injuries in the incident, non-explanation of injuries sustained by the accused assumes significance. Having regard to the injuries sustained by the accused, the trial court and the High Court ought to have made an effort in searching out the genesis of the occurrence.

16. For bringing in operation of "Exception 4" to Section 300 IPC, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner.

17. Considering the scope of "Exception 4" to Section 300 IPC, in Sridhar Bhuyan v. State of Orissa [Sridhar Bhuyan v. State of Orissa, (2004) 11 SCC 395 : 2004 SCC (Cri) Supp 98] , it was held as under: (SCC p. 397, para 8) "8. The fourth exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused: (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage"."

21. In the result, the conviction of the appellants under Section 302 IPC read with Section 34 IPC is modified as conviction under Section 304 Part I IPC and the appellants are sentenced to undergo imprisonment for seven years and the appeals are partly allowed. Appellant Gurwinder Singh is said to have undergone imprisonment for more than ten years, he is ordered to be released forthwith unless his presence is required in any other case. Appellant Satnam Singh is directed to surrender to serve the remaining period of sentence, failing which, he shall be taken into custody.

Hon'ble Supreme Court in the aforesaid decisions Lavghanbhai Devjibhai Vasava Vs, State of Gujarat (supra) found that incident of this case law took place in a spur of moment, therefore, conviction of the appellant was altered to Section 304 Part II of I.P.C. instead of Section 302 I.P.C. The appellant had already served 9 year and 3 months of imprisonment. Likewise, in the case of Gurwinder Singh alias Sonu and Others vs State of Punjab (supra), Hon'ble Supreme Court found that the incident had taken place near the tubewell where both the parties assembled to settle the land dispute, when there was exchange of words there was a scuffle between both the parties. In the same transaction where Harbhajan Singh was attacked the accused parties also sustained injuries. The prosecution had not offered any explanation for the injuries sustained by the accused. Therefore, it was found that the trial court and the High Court ought to have made an effort in searching out the genesis of the occurrence. Hon'ble Supreme Court, in this circumstances, has altered and modified conviction of the appellants under Section 302 I.P.C. read with Section 34 I.P.C. as conviction under Section 304 Part I of I.P.C. On the peculiar facts and circumstances of the case, but Hon'ble Supreme Court has laid down the principle on which the courts shall analysis the peculiar facts and circumstances and would decide as to whether offence punishable under section 302 I.P.C. is made out or for the offence under section 304 I.P.C. is made out.

The deceased Maya Devi never provoked or quarrelled with appellants on the date of incident at the place of occurrence, therefore, there was no occasion for appellants to commit incident in a spur of moment due to quarrel and sudden provocation given by the deceased, rather it was premeditated crime.

Hon'ble Supreme Court in the following paragraphs in the case of State of Uttar Pradesh Vs. Faquirey (Criminal Appeal No. 1842 of 2012 decided on 11.02.2019) has held as under:

1. The Respondent was convicted under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and sentenced to undergo life imprisonment by the Trial Court. The High Court converted the conviction to an offence under Section 304 Part I, IPC and sentenced the Respondent to 10 years rigorous imprisonment. Aggrieved thereby, the State of Uttar Pradesh is in appeal before us.

4. In the appeal filed by the Respondent, against the conviction and sentence, there was no contest on merits. The only submission made on behalf of the Respondent was that he could not have been convicted under Section 302 IPC. According to the Appellant, his conviction should have been under Section 304 IPC as the case is covered under Exception I to Section 300 IPC. The High Court observed that the intervention of the deceased in the quarrel between the two factions led to the Respondent losing his self control. The High Court was of the opinion that this resulted in grave and sudden provocation. Observing so, the High Court converted the conviction of the Respondent from Section 302 IPC to Section 304 Part I IPC. The Respondent was sentenced to suffer rigorous imprisonment for 10 years.

5. Mr. V. Shekhar, learned Senior Counsel appearing for the Appellant submitted that the High Court committed an error in converting the conviction of the Respondent from under Section 302 IPC to Section 304 Part I, IPC. He further submitted that the case of the defence that Exception I to Section 300 IPC is applicable is not correct. The Respondent was enraged at the sight of the deceased in view of the doubt he had in his mind about the deceased having an evil eye on his wife. The learned Senior Counsel relied upon the First Proviso to Exception I of Section 300 IPC to submit that the accused is not entitled to claim that the crime was committed due to grave and sudden provocation. Mr. D. K. Garg, learned counsel appearing for the Respondent submitted that the judgment of the High Court does not deserve any interference as the High Court was right in recording a finding that the Respondent lost his self control due to grave and sudden provocation which resulted in his shooting the deceased. He further submitted that the incident occurred almost 18 years ago and the Respondent has undergone the sentence of 10 years which is an additional reason for us not to reverse the judgment of the High Court.

9. For the aforementioned reasons, the judgment of the High Court is set aside and the judgment of the Trial Court convicting the Respondent under Section 302 IPC and sentencing him to life imprisonment is restored. The Respondent is directed to surrender within a period of four weeks to serve the remaining sentence.

117. On appreciation and evaluation of evidence of PW-2 and PW-3 injured witnesses, we find that that present case is of indiscriminate firing made by both the appellants. They have intentionally participated in the crime on call of co-accused Ram Niwas and fired 05-06 shots from their country made rifle and gun. Therefore, according to provision of Section 300 I.P.C., illustration (d) . The present case cannot come within category of culpable homicide not amounting to murder. Although the deceased sustained one firearm entry wound and other firearm exit wound as proved by Doctor PW-1. In this regard Section 300 I.P.C. along with illustration (d) provides as under:

"300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--

Secondly. --If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--

Thirdly. --If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--

Fourthly. --If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Illustration (d).- A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual."

Illustration (d) of Section 300 I.P.C., illustrates that if an accused without any excuse fires a loaded cannon into a crowd of persons and kills one of them, such accused is guilty of murder, although he may not have had a premeditated design to kill any particular individual.

118. We find in the present case that the PW-3 injured in his cross-examination has specifically stated that both the accused fired 05-06 fires towards them, out of which, one fire shot aimed by appellant Ram Kishore stuck of the deceased Chhotkannu and he died on the spot. Therefore, present case, in any circumstance, cannot be converted/allowed to culpable homicide not amounting to murder as argued by learned counsel for the appellants, being a case of indiscriminate firing.

119. Witness PW-2 is also an injured. He has also proved this fact that both appellants fired 04-06 shots. Witnesses PW-2 and PW-3 has also proved that at the time of incident four witnesses mentioned in F.I.R. and other villagers were also gathered at the place of occurrence and during indiscriminating firing these persons might have sustained firearm injury.

120. On the basis of analysis and appreciation of evidence adduced on behalf of prosecution, we found that the appellants committed this crime premeditated to extort extra money regarding sale of land of Om Prakash, who is brother-in-law of appellant Ram Kishore. Both the appellants participated in the incident and fired indiscriminately in furtherance of common intention and the deceased Chhotkannu sustained firearm injury and succumbed to these injuries. This crime cannot come in category of incident committed in spur of the moments or sudden fight or heat of passion. Therefore, this crime is not liable to be converted from offence punishable under Section 302 to offence punishable under Section 304 I.P.C.

121. There is no substance in argument of learned counsel for the appellants put forth in this regard.

122. The chemical examiner has provided report dated 11.09.2003 (Ext Ka-19). The Forensic expert on chemical analysis found human blood on big part of article blood stained soil collected from place of occurrence and "dhoti", shirt, vest and underwear of the deceased. This chemical analysis report was not challenged during course of trial on behalf of the appellants. It is admissible in evidence according to provisions of Section 293 Cr.P.C. The Forensic Science Laboratory, Mahanagar, Lucknow, U.P. is Forensic Laboratory of State of U.P.

123. Learned counsel for the appellants argued that the Investigating Officer has not sent the empty shell of cartridge of 315 bore to the ballistic expert for comparison of it nor he has seized country made rifle/ gun and country made pistol from the accused persons for comparison of empty shell with it. The following exposition of law is relevant regarding faults committed by the Investigating Officer during the course of investigation:

124. The following exposition of law is relevant regarding fault and omissions committed by the Investigating Officers.

In the case of State of U.P. Vs. Hari Mohan, (2000) 8 SCC 598:2001 SCC (Cri) 49, the Hon'ble Apex Court in para-12 of the said judgment has observed as under:

12. Circumstance 6 was held proved which, according to the trial court, strengthened the conclusion regarding the guilt of accused Hari Mohan. Regarding Circumstance 7, it was held that the investigating officer had noted the existence of fresh mud plastering at the place of occurrence, obviously with the object of destroying the evidence in the form of bloodstains and other marks which could prove the killing of the deceased by a gunshot. Though Circumstance 8 was held proved, yet it was not relied, on account of the negligence of the investigating officer as he had failed to get the Chemical Examiner's report about the origin and nature of the blood. In appeal the High Court, as noted earlier, has erroneously held that Roop Devi could have died by committing suicide. There was no evidence or any basis to return such finding by the High Court.

In the case of Chand Khan Vs. State of U.P., (1995) 5 SCC 448:1995 SCC (Cri) 915, Hon'ble Apex Court in para 23 has observed as follows:

23. There is no evidence on record to show that there was profuse bleeding from the injuries sustained by the two ladies and Chand Khan for blood to trickle down to the floor. On the contrary, the find of blood near the threshold of PW 1's house fits in with the evidence of the eyewitnesses and the nature of injuries sustained by Shah Alam. From the evidence of Sm. Naeema Parveen (PW 5) we get that when the accused persons started beating the members of their family inside their premises, she, her mother and aunt (Raees Begum) started shouting and cursing them. Then, when they found Chand Khan was approaching them they went inside. There Ishtiaq Khan gave two chhuri blows on the left side of her face and Sharif Khan gave two danda blows to her aunt Raees Begum. When she found Chand Khan was about to beat her mother, she struck him with a vegetable cutting knife. The above evidence of PW 5 stands substantially corroborated by the other three eyewitnesses referred to earlier. Then again the nature of injuries as found by the doctor upon her, Sm. Raees Begum and Chand Khan fits in with her testimony. In our opinion the best corroborative piece of evidence is furnished by the FIR which was lodged by Keramat Ali (PW 1) on the basis of what he heard from PW 5. In the FIR, which was lodged within two hours of the incident, the substratum of the entire prosecution case finds place including a statement that during the incident Sm. Naeema Parveen had, in defending herself, given a blow to one of the accused with a vegetable cutting knife. In view of the above statement recorded in the FIR, the Investigation Officer (PW 16) ought to have taken steps to seize the knife even if PW 5 had not produced it for, one of the essential requisites of a proper investigation is collection of evidence relating to the commission of the offence and that necessarily includes, in a case of assault, seizure of the weapon of offence, but then failure to collect evidence and failure to produce evidence collected during investigation at the trial carry two different connotations and consequences. While, the former may entitle the court to hold the investigation to be perfunctory or tainted affecting the entire trial, in case of the latter the court may legitimately draw a presumption in accordance with Section 114(g) of the Evidence Act. As the case presented before us comes under the first category of failures we have to find out whether we will be justified in discarding the prosecution case solely for the remissness of the Investigating Officer in seizing the knife. The consistent and reliable evidence of the eyewitnesses coupled with the nature of injuries sustained by some of them and Chand Khan and the fact that in the FIR it has clearly been stated that one of the miscreants had been assaulted by a vegetable cutting knife do not persuade us to answer the question in the affirmative. Mr Thakur lastly submitted that the entire prosecution story was improbable for if really the incident had happened in the manner alleged by it, the persons present in PW 1's house would have sustained more serious injuries. We do not find any substance in this contention for it is evident that Shah Alam was the main target and the assault on others was carried out to thwart any resistance from those present in the courtyard.

In the case of Amar Singh Vs. Balwinder Singh, (2003) 2 SCC 518:2003 SCC (Cri) 641, the Hon'ble Apex Court in para-15 has observed as follows:

15.Coming to the last point regarding certain omissions in DDR, it has come in evidence that on the basis of the statement of PW 4 Amar Singh, which was recorded by PW 14 Sardara Singh, SI in the hospital, a formal FIR was recorded at the police station at 9.20 p.m. In accordance with Section 155 CrPC the contents of the FIR were also entered in DDR, which contained the names of the witnesses, weapons of offence and place of occurrence and it was not very necessary to mention them separately all over again. It is not the case of the defence that the names of the accused were not mentioned in DDR. We fail to understand as to how it was necessary for the investigation officer to take in his possession the wire gauze of the window from where A-1 is alleged to have fired. The wire gauze had absolutely no bearing on the prosecution case and the investigating officer was not supposed to cut and take out the same from the window where it was fixed. It would have been certainly better if the investigating agency had sent the firearms and the empties to the Forensic Science Laboratory for comparison. However, the report of the ballistic expert would in any case be in the nature of an expert opinion and the same is not conclusive. The failure of the investigating officer in sending the firearms and the empties for comparison cannot completely throw out the prosecution case when the same is fully established from the testimony of eyewitnesses whose presence on the spot cannot be doubted as they all received gunshot injuries in the incident. In Karnel Singh v. State of M.P. [(1995) 5 SCC 518 : 1995 SCC (Cri) 977] it was held that in cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect and to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. In Paras Yadav v. State of Bihar[(1999) 2 SCC 126 : 1999 SCC (Cri) 104] while commenting upon certain omissions of the investigating agency, it was held that it may be that such lapse is committed designedly or because of negligence and hence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. Similar view was taken in Ram Bihari Yadav v. State of Bihar [(1998) 4 SCC 517 : 1998 SCC (Cri) 1085] when this Court observed that in such cases the story of the prosecution will have to be examined dehors such omissions and contaminated conduct of the officials, otherwise, the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law-enforcing agency but also in the administration of justice. In our opinion the circumstances relied upon by the High Court in holding that the investigation was tainted are not of any substance on which such an inference could be drawn and in a case like the present one where the prosecution case is fully established by the direct testimony of the eyewitnesses, which is corroborated by the medical evidence, any failure or omission of the investigating officer cannot render the prosecution case doubtful or unworthy of belief.

In the case of Gajjan Singh v. State of Punjab, (1999) 1 SCC 233: 1998 SCC (Cri) 1603, the Hon'ble Apex Court in paras-2 and 3 has observed as under:

2. Both the courts below have accepted the evidence of eyewitnesses PWs 5, 6 and 9 after careful scrutiny thereof. It was however submitted by the learned counsel for the appellants that as the eyewitnesses were interested witnesses and there were material inconsistencies between the evidence of PWs 5 and 6 on the one hand and PW 9 on the other hand, their evidence should not have been accepted. He also submitted that though the guns stated to have been used by the two appellants were seized by the police and forwarded to the ballistic expert for examination, no report of the ballistic expert was produced to show whether they were used or not. He also submitted that the circumstances that both the gun injuries on the person of the deceased were possible by one shot, that there were no pellet marks on the walls or other parts of the Haveli and no blood was found on the ground inside the Haveli create a doubt regarding the manner in which the incident had really happened.

3. One of the inconsistencies pointed out by the learned counsel is with respect to the nature of weapons which the two co-accused carried with them. PWs 5 and 6 have stated that they were carrying guns whereas PW 9 has stated that one of them was carrying a gun and the other was having a dang (a thick stick). The other inconsistency pointed out is regarding the part of the body on which the shot fired by Ratan Singh had caused injuries to the deceased. In fact, this is not an inconsistency at all. PW 5 has not stated on which side of the chest the injuries were caused. PWs 6 and 9 have stated that the shot had hit the deceased on the left side of his chest. These are the only inconsistencies in the evidence of the eyewitnesses. One more inconsistency pointed out by the learned counsel is between the evidence of PW 9 and the investigating officer. PW 9 has stated that he had seen one pellet in the mouth of the deceased. The investigating officer has denied to have seen any pellet in the mouth of the deceased. Blood had collected in the mouth of the deceased. It is quite possible that PW 9 mistook something in the mouth of the deceased as a pellet or the investigating officer missed to notice it. It is a minor inconsistency and can have no effect on the credibility of the eyewitnesses.

In the case of Prithvi (Minor) v. Mam Raj, reported in (2004) 13 SCC 2729 the Hon'ble Apex Court has observed in para 17 and 19 as under:

17. A further reason for disbelieving the evidence of Prithvi is that, while Prithvi stated that he could see the assailants because there was light on the spot coming from a bulb fitted in an electric pole near the chakki of Birbal (which was situated about fifteen steps from the place of occurrence) the investigating officer (PW 36) when cross-examined said that he did not remember anything about it nor did he include any electric pole in his site plan.

Assuming that this was faulty investigation by the investigating officer, it could hardly be a ground for rejection of the testimony of Prithvi which had a ring of truth in it. We may recount here the observation of this Court in Allarakha K. Mansuri v. State of Gujarat [(2002) 3 SCC 57 : 2002 SCC (Cri) 519] , SCC at p. 64, para 8, that:

"The defects in the investigation holding it to be shaky and creating doubts also appears to be the result of the imaginative thought of the trial court. Otherwise also, defective investigation by itself cannot be made a ground for acquitting the accused."

19. The evidence of Sona (PW 32) to the effect that, he awoke because of barking of dogs and saw four persons running by and when he flashed the torch, he noticed three of the respondents and a fourth person whom he could not recognise, is also disbelieved by the High Court on the ground that the place where Sona was sleeping was not shown in the site plan. The High Court also attached importance to the fact that the investigating officer had not put the date on which the statement of this witness was taken, although the investigating officer explained that he had forgotten to mention the date. The High Court assumes that on the date of the incident itself, the police knew the names of the assailants; therefrom, it deduces that the fact that they were not arrested till 30-8-1993 makes the statement of the witness unreliable. This, to say the least, is another piece of perverse reasoning.

In the case of Surendra Paswan Vs. State of Jharkhand, reported in 2004(48) ACC 279, 290 SC, the Hon'ble Apex Court in para 4, 8 and 11 has observed as under:

4. In response, learned counsel for the State submitted, that three eye-witnesses specifically deposed regarding the place of occurrence, the manner of assault and gave detailed description of the entire scenario. The trial Court and the High Court have analysed their evidence and found to be credible, cogent and trustworthy. That being the position, there is no scope for interference in this appeal. Further, there was a confusion between bullet and pellet which has been clarified by the investigating officer. Merely because the bullet which was extracted by the doctor was not sent for chemical examination, it would not be a factor which would outweigh the testimonial worth of the eye-witnesses. The injuries have not been established by the accused to have been sustained in course of the incident as per the prosecution version. There was not even any suggestion about the defence version to any of the prosecution witnesses and for the first time while giving statement under Section 313 Cr.P.C. the plea has been taken.

8. So far as the non seizure of blood from the cot is concerned, the investigating officer has stated that he found blood stained soil at the place of occurrence and had seized it. Merely because it was not sent for chemical examination, it may be a defect in the investigation but does not corrode the evidentiary value of the eye-witnesses. The investigating officer did not find presence of blood on the cot. The trial Court and the High Court have analysed this aspect. It has been found that after receiving the bullet injury the deceased leaned forward and whatever blood was profusing spilled over to the soil.

11. So far as the confusion relating to bullet and pellet is concerned, the same has been clarified by the doctor's evidence. In his examination the doctor (PW-3) has categorically stated that there was only one injury on the body of the deceased and no other injury was found anywhere on the person of the deceased. Therefore, the question of the deceased having received any injury by a pellet stated to have been recovered by the investigating officer is not established. The investigating officer has clarified that the bullet embodied was given to the police officials by the doctor which was initially not produced as it was in the Malkhana but subsequently the witness was recalled and it was produced in Court.

In the case of State Of U.P vs Babu And Ors reported in 2003 (11) SCC 280, Hon'ble Supreme Court in paragraph no. 5 has held as under:-

5. A bare perusal of the High Court's Judgment goes to show that its approach was rather casual and no effort was made to analyse the evidence. It is to be noted that the High Court did not examine the evidence of PWs. 1 and 3 with the required care. Great emphasis was laid by the High Court on the fact that in the site plan place where gaslight was found had not been indicated. The site plan is not substantive evidence. The High Court seems to have proceeded on the basis that omission to indicate the location gaslight in the site plan was fatal. This Court in Shakti Patra and another v. State of West Bengal 1981CriLJ645 held that where prosecution witness testified that he had identified the accused in the light of the torch, held by him, the presence of torch would not be said to be not proved on the ground that there was no mention of the torch in the FIR or in the statement of the witness before the police, when there was testimony of other witnesses that when they reached the spot they found the torch burning. To similar effect is the conclusion in Aher Pitha Vajshi and Ors. v. State of Gujarat 1983 CriLJ 1049. It would be proper to take note of what was stated by this Court in George and Ors. v. State of Kerala and Anr. 1998 CriLJ 2034 regarding statements contained in an inquest report. The statements contained in an inquest report, to the extent they relate to what the Investigation Officer saw and found are admissible but any statement made therein on the basis of what he heard from others, would be hit by Section 162 of Code of Criminal Procedure, 1973 (in short 'Cr. P.C.'). The position is no different in case of site plan.

125. On the basis of above mentioned exposition of law, faults committed by PW-6 Investigating Officer cannot adversely affect the prosecution case. The evidence adduced by PW-2-complainant and PW-3 injured Chhunnapal are cogent, reliable, trustworthy and acceptable and corroborated by medical evidence adduced by PW-1 and PW-4 doctors.

126. On the basis of above discussions and appreciation and analysis of evidence of witnesses impugned judgment and order dated 16.04.2004 cannot be termed as perverse or against evidence available on record. The impugned judgment is liable to be upheld and it is upheld.

127. The appeal lacks merit, liable to be dismissed.

128. Accordingly, dismissed.

129. The appellant no.-1Ram Kishore is detained in jail. The appellant no.2- Ram Pratap is on bail. He shall surrender immediately before the trial Court. If, appellant Ram Pratap does not surrender before the trial Court, then he shall be arrested to serve out the remaining imprisonment awarded against him.

130. The copy of this judgment be sent to the learned trial court and the concerned Jail Superintendent for compliance.

131. The record of the trial Court be sent back.

Order Date :-31.7.2019 Arvind

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