Rajasthan High Court - Jaipur
Bhagwan Singh And Ors. vs State Of Rajasthan on 13 May, 1986
Equivalent citations: 1986(2)WLN546
Author: Narendra Mohan Kasliwal
Bench: Narendra Mohan Kasliwal
JUDGMENT Mohini Kapoor, J.
1. These two appeals arise out of the same judgment of the learned Sessions Judge, Sikar, dated 4-9-1982.
2. The incident took place at village Katarthal on 30th November, 1980, a report about which was lodged at Police Police Station Raghunathgarh, by lobar Singh, Kishore Singh and five others were first challaned and the trial against them was conducted in Sessions Case No. 27/1981. The other persons were subsequently challaned and they are Vijendra Singh Ridmal Singh and Bhagwan Singh. The trial against them is in Sessions Case No. 51/1981. However, as the cases arose out of the same incident, they have been decided by one judgment, the two sets of accused have preferred separate appeals before this Court. They have been convicted as under : Accused Kishore Singh, Surjeet Singh, Rohtash Chandra Singh, Richpal Singh, Sher Singh, Ridmal Singh, Vijendra Singh and Bhagwan Singh have been convicted under Section 148, IPC and sentenced to one year's rigorous imprisonment, under Section 325/149 IPC, two years rigorous imprisionment and a fine of Rs. 100/- each and in default of payment of fine to undergo one month's rigorous imprisonment and under Section 324/149 one year's rigorous imprisonment and under Section 324/149 IPC, three months rigorous imprisonment.
3. Accused Rohtash has been convicted for the offence under Section 302 IPC and the other accused persons have been convicted for the offence under Section 302/149 IPC and sentenced to life imprisonment and a fine of Rs. 1,000/-and in default of payment of fine, six months rigorous imprisonment. All the sentences were ordered to run concurrently.
4. The First Information Report in this case may be first looked into, which was lodged by PW 1 Jabar Singh, at Police Station Raghunathgarh, District Sikar, on 30th November, 1980 at 3.00 p.m. The distance of the Police Station, from the place of occurrence is 16 miles In this report PW 1. Jabar Singh gave out the story that on the same day at about 12 noon Govindaram (deceased), Tarachand, Kesar Vijaipal etc. were having tea at the shop of Ramkumar near the bus stand Katrathal when Ridmal Singh, Rohtash, Ved Prakash, Vijendra Singh, Kishore Singh, Richpal Singh, Surjeet Singh, Sher Singh, Bhagwan Singh, Chandra Singh and Bhola Ram came there, armed with guns, lathies and farsies attacked the persons sitting there with common intention. They also pelted stones guns were fired several times and Govindram and Tarachand were hurt by the gun shots. Govindram died as a result of the injuries while Tara Chand. Kesar Singh, Vijaypal and Ram Kumar were injured, who were admitted to the hospital. It was specifically mentioned that Rohtash and Ved Prakash had guns, who fired them. Ridmal Singh and Sher Singh were attributed with farsies. Others had lathies.
5. PW 2 Dr. V.K. Khanna conducted the post mortem on the body of deceased Govindram and he also examined the four injured persons. The injuries found by him on the person of the deceased and the other injured, may be looked into her as it will help in appreciating the evidence as well as the contentions raised by the parties before us. The injuries of deceased Govinda Ram are as under:
(1) Penetrating wound 1/3rd x 1/3rd x 3-1/2 with ecchymosis around, going through the whole of width of left fore-arm middle, little to the inner side of mid line probing produces crackle of bones;
(2) Penetrating wound circular wound, with ecchymosis 1/2" x 1/2" x 2-1/2" on left wrist inner aspect;
(3) Oval penetrating wound with ecchymosis 1/2" x 1/3" x 6" going from just below left clavical down wards and out wards to 7th rib left side in mid axillary line;
(4) Oval penetrating wound with ecchymosis 1/2" x 1/3" x 10" going from right half of body sternum at third constochondral junction towards left side, down ward back ward and outward;
(5) Oval penetrating wound with ecchymosis 3/4" x 3/4" x 12" situated at the back 12th ribs region left side going upwards forward and to right;
(6) Circular wound 1/3" x 1/3" x 3" at the back near injury No. 5, but laterally probe goes anteriorly, upwards unto right. No wound of exit. No foreign body could be recovered inspite of best efforts;
(7) Oval penetrating wound 1/3" x 1/2" x 4" with ecchymosis, probe goes towards left upwards and anteriorly communicates with a lacerated wound 3/4" x 3/4" in mid axillary region at 9th rib region. Former in wound of entrance and latter of exit from projectile fired by a forearm;
(8) Abrasion 1" x 1-1/2" on right shin of tibia;
(9) Abrasion 2/3" x 1/3" right thigh outer aspect;
(10) Oval 1/2" x 2/3" x 4" penetrating wound 2" to left of left nipple with ecchymosis around probe goes downwards, out-wards and backward in mid axillary region at 6th rib producing crackle of bone. Exit wounds is 1" x 3/4" with everted margin at this side.
6. In the thorax region, a hole 1/3" x 1/3" sternum in right side of mid lineear third constochnodral junction. There were multiple fracture of 6th to 9th ribs in mid axillary region on left side. There were lacerated wounds in the left lung at three places. The right ventricle of heart was completely lacerated. There were two lacerated wounds in the abdomen in front and back. In the opinion of Dr. Khanna, the injuries sustained by Govinda Ram were antemortem in nature and the death occurred within 10 to 24 hours of performing the post-mortem examination. The death, in his opinion occurred as a result of pellets fired from a projectiles firearm, which resulted in the injuries to vital organs, like heart and left lung resulting in haemorrhage and shock leading to death. The injuries of liver, stomach and intestines also contributed to his death. The injuries of the deceased were sufficient in the ordinary course of nature to cause a death. Injuries No. 8 and 9 mentioned above could be caused by a blunt object.
7. The injuries of Ram Kumar are three in number and contained in report Ex. P 7. They are as under:
(1) Contusion 3" x 2" x 1" right forearm upper 1/3 outer aspect front;
(2) Lac. wound 1-1/2" x 1/4" x 1/2" right side scalp;
(3) Lac. wound 1/3" x 1/8" x 1/3" upper lip and similar size injury just above injury No. 3;
8. Kesar s/o Lachmana Ram, received six injuries as follows which are mentioned in report Ex P 8;
(1) Lac. wound 3" x 1/2" x 1/2" scalp, right side, temprofrontal region;
(2) Contusion with swelling all over left wrist and lower l/3rd forearm left;
(3) Contusion 2" x 1" x 1/2" right forearm;
(4) Contusion with ecchymosis 5" x 2" x 1" upper 1/2 front left shoulder top;
(5) Ecchymosis with contusion 4" x 1-1/2" x 1" right scapular region;
(6) Lac. wound 3/4" x 1/4" left side occipital region.
9. On X-ray examination, it was found that two of his injuries resulted in fracture and as such they were grievous.
10. The injuries of Tarachand s/o Pema Ram are five in number and contained in Ex.P 9. One of his injuries was caused by gunshot and the rest were caused by blunt weapon. The injury No. 2 was grievous, as it resulted in the fracture of the distal phalanx of the ring finger.
11. The last injured person is Bijendra Singh alias Vijay Pal son of the deceased. He had one incised wound 2-1/2" x 1/2" on forehead bone deep. This is the only incised injury, received by any of the persons in this incident.
12. ft may be stated that the accused persons did not come out with explanation when, they were examined under Section 313 Cr.PC but their case has been put to witnesses which is that Tarachand, was constructing a Bhatta in the land belonging to the Panchayat. When the villagers asked them not to do so, Tarachand & others (complainant party) started throwing stones and the villagers also pelted stones. At that time some one in the crowd came with a gun and fired at them. Thus they have shifted the place of occurrence, from the shop of Ramkumar, to the place, where a Bhatta was being constructed and have not given out the names of the persons who attacked the complainant party and who fired at them.
13. Ved Prakash, who was shown as one of the persons in the First Information Report, who fired at Govinda, has not been made an accused in the case as according to the Investigating Officer, he was able to make out an alibi for himself. He is a Captain in the Army and the Investigating Officer was satisfied that he was else where at the time of the incident. A licence gun, which is double barrel 12 bore, was recovered at the instance of accused Rohtash. No other weapons were recovered in this case.
14. The learned counsel for the appellant has first of all contended that all accused persons are related to each other and they have been falsely implicated on account of enmity of the complainant party with Ridmal Singh, who is a Sarpanch and also an Ex. M.L.A. Four accused are sons of Daulat Singh, two are sons of Narain Singh and Slier Singh and Ridmal Singh appellants are cousins, who are the uncles of other appellants. The enmity between Ridmal Singh and the complainant party, specially, Bhanwar Singh, who wrote out the report Ex. P. 1, is highlighted by the fact that Bhanwar Singh was a witness in a case against Ridmal Singh w here he was tried for having received illegal gratification. This Bhanwar Singh was a witness of the trap. This may be kept in the back of the mind while dealing with the case against the appellant.
15. The learned counsel for the appellant has contended that the witnesses in this case have attributed Farsies to Ridmal Singh, but there are no injuries on the person of either the deceased or the other injured persons by a sharp edged weapon. Only Bijendra has one incised-wound on his fore-head and for this the doctor has been cross-examined and he has admitted that this could be caused by a stone with sharp-edge. Dr. Khanna has also stated that injuries Nos. 8 and 9 of the deceased can be caused by blunt object and both could be received in one single fall. The doctor has also admitted that except for the injuries caused by gun-shot on the deceased and also Tarachand, the rest of the injuries of Ram Kumar, Kesar and Tara Chand could be caused by throwing of stones of the corresponding sizes. Referring to this statement of Dr. Khanna, coupled with the fact that in the First Information Report Ex. P. 1, there is a mention of throwing stones, it is contended by the learned counsel for the appellant that there was a big crowd at the place of incident, which was throwing stones in return of the stones hurled by the complainant party and as such they can not be said to be the accused persons. According to him, some other persons were involved in this incident but they have not been made accused while the appellants have been roped in. According to him the throwing of stones and firing a gun, can be done simultaneously from a distance but beating with lathi and Farsi cannot be done together with the firing of the gun as in that case pellets would fly at the accused persons also. Emphasis is also laid on the fact that who so ever came with the gun, came subsequently, otherwise both the sides would not have engaged in stone-throwing.
16. The learned counsel for the appellant has contended that the report Ex. P. I is written by Bhanwar Singh, who lives not on the way to the police station or to the hospital from the place of incident but in the opposite direction. He was the arch-enemy of appellant Ridmal Singh and he was consulted before taking any steps and it is his involvement in the report that has led to the inclusion of the names of the relations of Ridmal Singh. Thus, according to him, there is over-implication of accused in this case. Referring to Para 8 of the judgment of the learned Sessions Judge, it is contended that the presence of the PW 1 Jabar Singh, at the place of incident has become doubtful so his knowledge of the incident, is borrowed from others. According to the learned counsel for the appellant this imaginary story has been followed by the other witnesses and the scene of occurrence as constructed on basis of an imaginary story, cannot be made basis conviction. He. of contended that in order to clinch the case against the appellant Ridmal Singh, the witnesses have stated before the Court that he exhorted and called upon to kill Govinda but this exhortation was not mentioned in the report Ex. P 1. The witnesses also did not mention in their police statements about this exhortation. Another contention of the learned counsel for the appellant is that when the case of the prosecution against other accused cannot be believed because of absence of incised injury, which could have been caused by Farsi, then (he witnesses should not be believed as regards the role of Rohtash. It is also pointed out that the pellets, which hit Tarachand, could not be said to be a different aim fired at him but could have hit him, out of the same shot by which Govinda was injured. According to him, there was only one shot and this could have been fired by Ved Prakash, who has been named by the witnesses but has not been prosecuted. Thus it is claimed that it is not proved beyond doubt that it was Rohtash, who fired the gun at Govinda.
17. The First Information Report in this case was registered on 30th November, 1980, at 3.00 p.m. but it reached to the court of concerned Magistrate only on 2nd December, 1980. This delay is said to be time used in manipulating the case against the appellants. The First Information Report according to the learned counsel for the appellant is to be sent immediately, whether it is a Sunday or working day, in order to attach veracity of it.
18. Reliance has been placed on Sow Lai and Ors. v. The State of U.P. 1981 Cr. Lr (SC) 285 and Ishwar Singh v. State of Uttar Pradesh , wherein it has been observed that FIR in respect of cognizable offence is to be sent 'forthwith' to a Magistrate competent to take cognizance of offence. The delay in sending the FIR was considered to be a circumstance which provides a legitimate basis for suspecting that the First Information Report was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence.
19. On behalf of the State, it has been contended that one witness who is the maker of the First Information Report, cannot be said to be the whole and sole of the prosecution case so as to say that if he is not an eyewitness to the incident, then all other witnesses, who have supported his story should also be disbelieved. According to the prosecution, Jabar Singh, PW 1, was present at the site but was sitting a little-away from the shop of Ram Kumar where the incident occurred and his presence at the site cannot be ruled-out, if the other witnesses have merely given the names of the persons who were present at the shop of Ramkumar. According to the learned Public Prosecutor the four persons, who were injured and any eye-witnesses, will not become false-witnesses, merely because of certain suggestions put to them in their cross-examination. It is contended that the accused appellants have not given any explanation of the incident in their statements under Section 313 Cr.PC and have not examined any witnesses to show their version of the incident. Had the complainant-party pelted stones at the accused persons, then they would also have received some injuries and the absence of the same shows that the manner of the incident as suggested by the accused is not correct. According to the prosecution, the accused persons had formed an unlawful assembly and all the accused persons had the common object of killing Govinda and injuring to others.
20. As for the First Information Report, it is contended that it cannot be said to be the lastword so as to disbelieve whatever is stated by the witnesses and not contained in the First Information Report. The FIR cannot be an a encyclopaedia so as to contain a comprehesive matter because there are so many matters which come out only when further questioning is done. According to him, the First Information Report cannot be said to a document fabricated at a lage after considering the medical evidence so as to say that delay in sending the First Information Report to the Magistrate makes the prosecution case doubtful, it is also contended that omission in the statements of the witnesses cannot be judged in the light of the witnesses statements they had made in complaint, case against Ved Prakash and Bhola Ram because that was a case against two persons only and the role of all the accused was not given in detail in these statements. It is contended that minor contradictions and omissions should not be given undue weight as in a sudden attack the witnesses are taken by surprise and cannot make a note of the incident which suddenly follows one after another.
21. We have given our anxious consideration to the contentions raised on behalf of both the sides and gone through the record of the case. At the very out-set, it may be stated that the report Ex. P 1, said to have been lodged at the police station at 3 00 p.m. on 30-11-1980, and received by Magistrate on 2nd December, 1980, cannot be said to be a version of the incident after gaining time for consulation or obtaining the report of the Medical Officer. In a case where the report about the First Information is made at the police station after some concoction, then ordinarily every injury on each of the injured person is specifically attributed to particular accused persons along with the name of the weapon by which it was caused. In the present case, no such effort has been made to furnish this information in Ex. P I, even the place, where the pellets hit Govinda has not been mentioned. The whole incident has been described in a hurried and general manner, without mentioning the details. Such a report cannot be said to be the result of detailed-connections with a view to implicate persons who were not present, with a view to involve them in the case. The version which is given by a person on his own is normal, very much different from a version, which is given on basis of questioning and information. In the present case, there is no unreasonable delay in lodging of the First Information Report & the delay in sending it to the Magistrate has been explianed by saying that the day intervening was Sunday. This cannot be accepted as a good explanation but it cannot have an adverse effect on the prosecution story, because as seen above the First Information Report contains only a general version of the incident and cannot be said to be a document in which improvements and embellishments have been introduced.
22. PW 1, Jabar Singh's presence at the site has been doubted, merely because his presence was not given out by the other witnesses when they were examined by the police and that there was no blood or his clothes even though he assisted in lifting deceased Govinda to the bullock-cart for being taken to the hospital and because he is unable to give details about the reloading of the gun by Rohtash.
23. PW 1, Jabar Singh was not sitting at the shop of Ramkumar at the time of the incident but he was sitting in front of the shop of Ramkumar when the incident occurred. This place is near the bus-stand of Katrathal and there were people all round and it may be that when giving their version before the police the witnesses only mentioned the presence of those who were at the shop of Ramkumar himself. Absence of the name of Jabar Singh amongst those persons cannot a make much difference in such circumstances. The fact that the appellants are admitting that there was exchange of stones and Jabar Singh, in his report; has mentioned that the stones were thrown by the accused persons confirms his presence at that time. No doubt he has denived the exchange of stones before the Court but the mention of the same in the First Information Report goes to show that he was present at the time of the occurrence. It has been seen above that Dr. Khanna has admitted that injuries of the four injured persons, except one injury of Tara Chand, caused by pellets could have been caused by throwing stones. This can also be said to be probable in view of the statements given by four injured persons who have failed to give the names of the persons, who gave lathi blows. They have stated that all the accused persons surrounded them and Ridmal Singh and Slier Singh gave Farsi blows while the rest Lathi blows. Which accused gave a blow to which of the injured person, has not been disclosed in the statements of these injured persons. When throwing of stones can be said to be corroborated by medical evidence and finds mention in the First Information Report then the presence of Jabar Singht at the time of occurrence cannot be disbelieved so as to make him a witness deposing on imagination and on being tutored by others. It may also be said that even if Jabar Singh was not present at the time of the incident and his version is based on what it was told by others, then the other witnesses would not become false witnesses merely because they supported the version as given by Jabar Singh. The statements of these witnesses have to be examined for their own worth.
24. PW 8 Ramkumar, PW 9 Kesarsingh, PW 10 Vijapal, & PW 13 Tara Chand are themselves injured and according to them the incident took place, at the place where Ramkumar has his shop. According to them it were the accused persons who caused injuries to them and Rohtash and Ved Prakash fired gun at them. They have not been able to give names of the persons who gave specific blows to them and for this reason their presence at the spot cannot become doubtful but it may be said that the witnesses have not been able to give the specific role of each of the accused except Rohtash and Ved Prakash, which may be because they did not wield the weapons attributed to them, the story put forward by the accused person may be looked at. In the cross-examination of PW 10 Vijay Pal, he has admitted that there was a Bhatta of Tarachand Pema Ram, but it is wrong to say that this Bhatta was on the land of the Panchayat. This Vijaypal used to work on this Bhatta. He has stated that he had asked Tarachand whether this Bhatta was on his own land or the Panchayat. Because he has apprehension that the villagers would object, if the Bhatta was on the land of the Panchayat. This part of his statement may give a suggestion that there was some dispute about the location of Bhatta Tarachand but that, by itself would not go to show that the occurrence took place at the site of Bhatta and not where it has been alleged by the prosecution.
25. PW 3, Jawahara was returning from his field when he heard the gun-shot and found the injured persons infront of the shop of Ramkumar.
26. PW 11, Jawahara s/o Bhuda Ram is a person in whose presence a drum was seized from the Katrathal bus-stand in which there was a hole and another big-wooden piece in which there were two holes. This drum and wodden-piece were subsequently examined by the Assistant Director Forensic Science Laboratory, and his opinion was that the holes present on piece of drum and on the wooden piece might have been caused by lead projectiles as lead metal was detected on periphery of these holes.
27. PW 14 Phoola Ram has his Tailor's shop, just by the side of Ramkumar's shop, and he also witnessed the incident. His presence at the site is quite natural and it goes to show that the incident took place at the shop of Ramkumar and not near the Bhatta. On the basis of this evidence, we are satisfied that the place of occurrence was the shop of Ram Kumar and the occurrence did not take place at the Bhatta of Tara Chand. The place of occurrence has been established and the evidence of witnesses leads to the conclusion that it were the appellants who had come to attack them. However, the role of each of the appellants has not been given specifically and because of the medical evidence and the mention to the fact that stones were pelted in the First Information Report, it would show that the attack on the persons was not by Lathies and Farsis as stated by the witnesses. It may be stated that we are not referring to the gun-shot injuries at this stage. The witnesses, therefore, can be said to be not speaking truth when they have attributed Lathi and Farsi blows to the appellants but in our opinion, on account of this reason, we cannot pursuade ourselves to hold that the whole story given by the witnesses is false. They can be said to have made some embellishment in the story but the main story about the attack by the appellants and the firing of the guns is correct. This is a case where it is necessary to examine the witnesses from the view point of separating the truth from falsehood. It has been observed in the State of U.P. v. Shanker AIR 1981 SC 896 as under:
In this country it is rare to come across the testimony of a witness which does not have a fringe or an embroidery of truth although his evidence may be true in the main. It is the function of the Court to separate the grain from the chaff and accept what appears to be true and reject the rest. It is only where the testimony of a witness is trained to the core, the falsehood and the truth being intricably intertwined, that the Court should discard his evidence in toto.
28. In Krishana Pillai Sree Kumar and Anr. v. State of Kerala it was observed as under :
The prosecution evidence no doubt suffers from inconsistencies here and discrepancies there but that it is a short coming from which no criminal case is free. The main thing to be seen is whether those inconsistencies, etc. go to the root of the matter or pertain to insignificant aspect thereof. In the former case the defence may be justified in seeking advantage of the incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal case.
29. In Ugar Ahir and Ors. v. The State of Bihar , it has been observed as under:
The maxim falsus in uno, falsus in omnibus (false in one thing, false in every thing),is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exegerations, embroideries or embellishments.
It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitious metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest.
30. Applying the same test to the witnesses in the present case, we are of the opinion that the prosecution witnesses in this case can be believed as regards the rule of the appellant Rohtash in firing at deceased but at the same time the rule assigned by them to the other accused cannot be said to be in the manner in which it has been deposed by them. They are truthful witnesses no doubt, but because of some improvements made by them in putting lathies into the hands of the appellants instead of stones, the complexion changes. There are no injuries by Farsies, which also rules out the believing of that part of the statement of witnesses wherein they have deposed that Ridmal Singh and Sher Singh were armed with Farsies. Had these accused persons been armed with Lathie, then atleast the injured witnesses would have disclosed as to which accused gave Lathies blows to them. Because of this doubtful nature of the evidence, the appellants other than Rohtash can be made liable for the offence only if they can be said to be the members of an unlawful assembly, having the common object of causing the death of Govinda and injuring others.
31. Before considering this matter, we may look into the contentions raised by the appellants for the role of Rohtash.
32. The learned counsel for the appellants has contended that the witnesses in this case have attributed firing by guns to two persons, namely, Rohtash and Ved Prakash but Ved Prakash has not been made an accused. It is contended that the injuries of Govinda and Tara Chand could have been caused by Ved Prakash and as such Rohtash cannot be said to be liable for this.
33. For considering this contention, we shall have to refer to the evidence of PW 2 Dr. Khanna, The direction of the gun-shot injuries becomes material in this respect. Some of the wounds caused by gun-shot upwards in direction while there are others, which are down-wards in direction. This shows that the firing has been done from different angles and it is not a case where all the injuries were caused by one shot only. Dr. Khanna has not agreed with the suggestion that if a single shot is fired from a long range, the:; all the gunshot injuries of the deceased and one of Tara Chand could be caused by the same shot. The injuries Nos. 3,4 and 10 of the deceased have the same course and the injuries Nos. 5,6 and 7 have the same course. The injury No. 3 of Tara Chand could have been caused along with the injuries Nos, 5,6 &. 7 of the deceased if he was standing near him. The injuries Nos. 3, 4 and 7 could be responsible for the perforation of the left lung and. for the complete laceration of the right ventricle. At the same time Injury No. 5 and 6 could have caused laceration of large and small intestines, stomach and liver. So, if the two sets of injuries are considered separately, then both the sets can be said to have caused fatal injuries and even if one shot can be attributed to Rohtash, then his act would fall in any of the clauses of Section 300 IPC. The firing of a gun-shot can have no other intention but that of causing death and the person doing so has the knowledge that it will cause the death of the person to whom the harm is caused or the injury inflicted would be sufficient in the ordinary course of nature to cause death. The offence of appellant Rohtarh falls under Section 302 and the same has been proved beyond reasonable doubt.
34. The next question which is to be seen is whether the other appellants can be held guilty of this offence with the aid of Section 149 IPC. For this purpose, the evidence of the witnesses will have to be looked into. The story of the prosecution is that Lathies, Farsies and even stones as mentioned in First Information Report were used which goes to show that the accused had taken resort to attack by simple weapons besides the gun. There is no mention in the First Information Report that Ridmal Singh or any one else exhorted that Govinda and others should be shot-dead. The fact that there was time enough to inflict eight or ten injuries on the injured persons before the gun shots were fired, leads to the suggestion that in the first instance they were giving beating and it was only a later on that the guns were fired. Had the guns been fired immediately after all the appellants came there, then would have been no necessity of the other ordinary injuries. The story about 'Mario Mario.' which has been now attributed to all the appellants was not originally given out by the witnesses. This part of the story cannot be said to have been proved beyond reasonable doubt because this was not the case of witnesses soon after the occurrence. Some thing more is required than mere suggestion to show that the appellants formed an unlawful assembly and had a common object to cause the death of Govinda and injure others. It may even be possible that the appellant Rohtash fired the gun where the other appellants did not know about it. Considering the fact that the witnesses in this case have not given a complete version as regards the manner in which the incident took place and we have separated the truth from false-hood in arriving as to what could be believed, it will not be safe to hold that all the appellants had the common intention to kill Govinda and they were aware that Rohtash was going to commit that act.
35. In the result, the other appellants cannot be held guilty of the offence under Section 302 read with Section 149 IPC.
36. We may also mention here that even if it is taken that the incident occurred at the site of Bhatta, as suggested by the appellant and that Tara Chand had constructed the Bhatta on the land belonging to Panchayat, then too there was no occasion for the appellant Rohtash to take the law into his own hands and shoot at Govinda and others. The appellants were not in danger of receiving any grievous hurt or under apprehension of death so as to say that the act of Rohtash was justified. The dispute about constructing Bhatta on land belonging to the Panchayat cannot be solved by voilent methods and it was not for Rohtash to resort to firing by gun as the Panchayat would have taken proper steps.
37. In view of our conclusions, we hold that the conviction of the appellant Rohtash for the offence under Section 302 IPC is proper but he deserves to be acquitted for the other minor offences. The conviction of the other appellants is liable to be set-aside as the case against them cannot be said to be proved beyond reasonable doubt.
38. In the result, appeal No. 393/1982, is accepted and the appellant are acquitted for all the offences for which they were convicted by the learned Sessions Judge.
39. In appeal No. 407/1982, the appeal of all the appellants except Rohtash is accepted and their conviction and sentences are set-aside.
40. The conviction and sentence of the appellant Rohtash for the offence under Section 302 IPC is maintained and his conviction for the other offences is set-aside.
41. Accused Kishore Singh, Surjeet Singh, Chandra Singh, Richpal Singh, Sher Singh, Bhagwan Singh, Vijendra Singh and Ridmal Singh are on bail, they need not surrender and their bail-bonds are discharged.
42. Accused Rohtash is in jail. He shall serve out his remaining sentence.