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23. To the argument of the defence that complainant, Shiv Bhajan had not supported the prosecution case in cross-examination as he stated that on the date of occurrence it was dark night and his son was not at home; he could not see the occurrence; when he reached the place of occurrence, the deceased had received injuries; he was illiterate; the police had got the complaint written by Rajendra and had got it signed by him; no dispute had occurred with regard to plucking of lemon and jackfruit nor any fire was made with an intention to kill; the earlier statement made by him in this regard was given under pressure from the police, the learned trial court responded by recording in the judgment that in examination in chief recorded on 14.02.2011 of this witness and thereafter in his partial cross examination recorded on 15.03.2011, he has fully supported the prosecution case, but when he appeared before court thereafter on 05.07.2011, he turned hostile denying the occurrence to have happened in the manner as stated in the F.I.R.; in six pages long statement of this witness prior to his turning hostile, he never stated that he had signed the complaint written by Rajendra under pressure from police; by appearing before court with complaint, Exhibit Ka-1, he himself proved the same word by word stating clearly that the accused persons had chased him after abusing him due to dispute of plucking of lemon and jackfruit and on the exhortation of co-accused, Awadhesh had made fire from country made pistol which hit Manoj in his abdomen, who had to be taken the same day to Allahabad where he was operated; he also proved panchayatnama and further he stated that the statement of his deceased son was recorded by the investigating officer in Swaroop Rani hospital after about 5-6 days of the occurrence and had also given statement with respect to the place of occurrence, therefore his turning hostile indicates that he has made that statement under some kind of pressure. It was also mentioned that if there was any kind of pressure upon him, he ought to have brought the same to the notice of court, but he did not do so and hence his statement dated 05.07.2011 proving the prosecution case has been held to be credible.

26. It is further argued before the trial court that the prosecution could not prove the charges levelled against each accused separately as the role of making fire upon the deceased is assigned to accused Awadhesh only, as a result of which the case against other accused namely, Ashish and Suresh does not stand proved. In this regard the court held that as per evidence it is true that when the complainant asked for reason of abusing, accused Suresh and Ashish exhorted the complainant to kill informant, at which Awadhesh made fire upon him which hit Manoj Kumar, which makes it clear that at the exhortation of co-accused Suresh and Ashish, Awadhesh had opened fire and hence all the three accused were involved in commission of this offence in the prosecution of their common intention to kill the deceased, therefore the provision under Section 34 IPC was applicable against all the accused named above even though two of them did not fire.

28. It was also argued before the trial court that the fire was made on the complainant/informant Shiv Bhawan, hence there was no intention to kill Manoj nor knowledge could be attributed to the accused that such act would result in causing death of deceased, hence the offence would not fall under sections 302 IPC rather the same would fall under section 304 IPC. In this regard it is held that as per evidence on record it appears that all the witnesses were standing there including deceased Manoj and the way the fire was made, if the same would not hit the complainant/informant, it would certainly have struck someone else among them, therefore at the time of making the fire the accused persons had full knowledge that their act was certain to result in causing death and intention to cause death was also there which is evident from Ashish and Suresh exhorting the co-accused Awadhesh to kill the complainant/informant, hence the offence would fall under sections 302 IPC only and not 304 IPC.

35. Shiv Ram, PW-5, who is brother of the informant has stated in examination-in-chief that his brother Shiv Bhawan, who drives tractor at brick-kiln, was returning home after parking tractor and when he returned home he was apprised that all the three accused were abusing the informant's side, at which his brother had asked them the reason why the abusing was being done, at this all the three accused stated "Maro Sale Ko Jane Na Paye". His brother ran towards his house. Manoj his nephew was standing near the hand pump. Awadhesh made fire upon Manoj who fell down on the ground. In cross-examination he stated that when Shiv Bhawan after having returned from brick-kiln saw that accused had abused the family members of the informant, Shiv Bhawan went to the accused persons who were on the road leading towards brick-kiln and enquired from accused as to why they were abusing, at this accused Suresh and Ashish exhorted saying "Maro Sale Pasi Ko" and Awadhesh chased him and he opened fire upon him. Further it is stated that he had stated to police that Suresh and Ashish had stated "Maro Sale Pasi Ko". Hand pump was about 10 feet away from the house of Shiv Bhawan. The deceased was seeing abusing standing at the hand pump. The hand pump is towards North of the house of Shiv Bhawan. He was also standing near hand pump at the time of abusing. The deceased Manoj was not standing immediately next to him. The fire was made from a distance of about 4-5 feet upon the deceased. He was standing about 1 ½ metres away from the deceased when the file was made upon deceased. At that time accused was alone and there were about 4-5 persons of informant's family, which included three ladies and all of them were seeing occurrence standing at the hand pump. This witness is also a close relative of the informant, but his statement is also supporting the prosecution case to the extent that the accused Awadhesh was alone at the time of fire being made upon the informant's side, in which Manoj received the injury and subsequently succumbed to the same. This witness has not disclosed as to where the other two accused had gone when the fire was made upon the informant's side. There is discrepancy with respect to the other two accused accompanying Awadhesh at the time when fire was made which resulted in death of Manoj. The exhortation "Maro Sale Pasi Ko" alleged to have been made by other two accused Suresh and Ashish is not found to have been recorded by the police in the statement of this witness under section 161 of Cr.P.C., which is material contradiction. With respect to abusing being done by all the three accused as well as exhortation "Maro Sale Ko Jane Na Paye" by the accused persons, there appears to be contradictions in the statements of PW-1, PW-2, PW-3 and PW-5, from which it may be concluded that the other two accused namely Suresh and Ashish appear to have been falsely implicated in the present occurrence while in the statements of all the above-mentioned eye-witnesses the role of main accused Awadhesh is clearly proved to the effect that he mainly opened fire upon the informant which instead of hitting him, hit his son Manoj which resulted in his death about 7 days after the occurrence.