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In his cross-examination on behalf of the accused appellants, namely, Kaptan Singh and Deshraj, he deposed that while conducting autopsy he found four injuries. The description of which has been given in the postmortem report. He had not shown any injury of any gun shot as the body was burnt and lacerated wound was found due to firing. The length and width of injury nos.1, 2 & 3 on the body of the deceased were equal and same. This injury could have been caused by one or more than one firearm weapon. If the fire is shot from one place from different distance then the dimension of the injuries would be different. It is always not necessary that when the fire is shot from close range wadding and tikli would not be found in the body, if the fire is shot from the distance of 4 ft tikli would travel into the body. He could not say as to whether firing from within a distance of 4 ft wadding would travel into the body or not. He has no knowledge if the fire is made in contact with the body, the wadding would pierce in the body. It is not known to him that on firing wadding would enter into the body. wadding and tikli were found in all the four injuries of the deceased only due to this, it could not be said that there is a great possibility that the firing was done from close range as the dead body was burnt lacerated wound is found always when firing is made. This witness was put to a question as what he means about wadding, he answered wadding is a part of tikli. At this moment, tikli shots and wadding which were recovered from the body of the deceased were not before him. There could be possibility of 4-5 hours difference about death and the deceased would have died in the night around at 10-11 P.M. S.S. Yadav, Inspector CBCID has been examined on 10.2.2009 as P.W-3 in the present Sessions Trial bearing No.129 of 1995 (State Vs. Kaptan Singh and another) who was examined as P.W-4 in Sessions Trial No.327 of 1989 (State Vs. Atar Singh & others) on 26.5.2003. The defence had sought adjournment on 26.5.2003 to cross-examine him on the next date. Thereafter the case was adjourned incessantly by the defence and on 10.2.2009 he was again summoned and was re-examined with the permission of the court on behalf of all the accused persons of both the sessions trial separately.

It has been pointed out by the learned counsel for the appellants that it is alleged that Sughar Singh, Phulwari and Nawab Singh entered into the baithak after the deceased fell down and they had also fired, and at the same time, Atar Singh, Mansha Ram and Kaptan Singh were firing indiscriminately outside to unleash the reign of terror. Though Kaptan Singh did not enter into the baithak but his presence along with other accused persons making fire indiscriminately cannot be doubted.

The Doctor has also opined that the dimension of injury nos.1, 2 & 3 were the same meaning thereby it was fired by the same weapon by one person. Inside the body, one wadding piece was recovered from chest and one from abdomen, four tiklis from abdomen and two from chest and 78 small pellets were found from brain, abdomen and chest. The Doctor has also opined that injury may be caused by several weapons depending upon the distance.

On the aforesaid submission on the part of the appellant Kaptan Singh, he obtained bail by clearly shifting responsibility of firing by Sughar Singh who was armed with gun and alleging that Ram Sahay, the deceased died on account of firing inside baithak and Nawab Singh and Phulwari caused injury with rifle as the dimensions of the injujry are same. The arguments which were advanced on behalf of the accused appellants initially that there was no shot of fire with rifle and Ram Sahay, the deceased died due to firing made by DBBL Gun. The appellant Kaptan Singh was having DBBL Gun and the postmortem report clearly corroborates the prosecution that cause of death was the result of firing with gun when the deceased was on his chabootra. Thus only for the purpose of somehow getting bail one set of accused have shifted burden upon others for causing injury with gun and vice versa. But the fact remains that they had shared common intention and the firing had taken place and Ram Sahay, the deceased was done to death on the fateful day. It would be very difficult to fix liability upon one person only i.e. Sughar Singh in the entire episode who had pleaded juvenility and acquitted by the court below. When all of them had come jointly with prior meeting of mind to eliminate Ram Sahay then whose shot of fire was fatal cannot be deciphered. Dragging of dead body from baithak to the field of Sahab Singh where he was put on fire further shows that all the accused persons were having common intention and involved in dragging the dead body as such the contention on behalf of other accused appellants has no substance that they had not fired at the deceased who had suffered homicidal death and the injuries sustained by him were all ante-mortem in nature as a result of firing with gun. It is common experience that in the confusion of the moment the witnesses are prone to make some error when they were seized by some fear.