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3. The prosecution case, in brief, is that the accused persons put an obstruction (bandha) on pathway, wherefrom, rainy water flew towards south in front of their house. On the date of occurrence i.e. 27.6.1989 at about 7 p.m., brother of informant Niranjan Singh, apprehending danger to his house, went to accused persons to complain on the said obstruction. It is alleged that accused Munna Singh armed with a tamancha (country made pistol) and other accused persons namely Ram Prasad, Ram Raj Singh, Mannu Singh & Guljar Singh armed with lathis (sticks) met Niranjan Singh over the road, where the obstruction was created. The appellant no.1 Munna Singh fired at Niranjan Singh and also challenged his associates to assault him. Consequently, Niranjan Singh sustained serious injuries and fell down on the ground. Other accused assaulted him with lathis. After hearing altercation and noise of the firearm, Smt. Deo Ratiya (mother of informant), Smt. Premvati (wife of Niranjan Singh), Ram Niranjan (informant), Sanware Singh and several other persons of the village, reached on the spot. Smt. Deo Ratia and Smt. Premvati lied down over the fallen Niranjan Singh to save him from further assault but the accused had also assaulted them by the lathies. No medical aid could be given to Niranjan Singh and he died on the spot. Ram Niranjan Singh came to the police station on 28.6.1989 at 08.05 a.m. and lodged written report, whereupon a Case under Sections 147, 148, 149, 323, and 302 IPC was registered against the accused. The body of the deceased was sent for post-mortem examination conducted by Dr. Rakesh Kumar Mishra (PW-3) on 30.6.1989 and he noticed following injuries:-

15. Ram Niranjan Singh (PW-2) (complainant and eyewitness to the incident) vide his examination-in-chief has reiterated the version of FIR and stated that the rainy water of his house used to flow through the road in front of the house of the deceased since long time. The blockage was made three days before the occurrence. Apprehending danger to the house, the deceased went to the house of Guljar Singh and asked him to remove the obstruction. The complainant was present at his door and his mother and Bhabhi Prema were also present there. Guljar Singh refused to remove the obstruction and started abusing the deceased. At the time of the conversation, the other accused persons namely Ram Raj, Mannu, Ram Prasad and Munna Singh also came there. Munna was armed with tamancha and rest were armed with lathies. Guljar was already armed with lathi. The accused Munna Singh opened fire at the deceased, which hit him on lower abdomen and he fell down on ground. His mother and Bhabhi rushed and lied down over the deceased but all the four accused persons assaulted him with lathies. His brother was alive, hence he managed to take him to the hospital on a cart but as soon as they reached beneath Chandraman Singh's Mahua tree, his brother Niranjan Singh died. The dead body remained beneath the tree itself for the whole night and it was not brought home. On 28.6.1989 at 08.05 a.m, PW-2 came to the police station and moved the written complaint.

21. From the evidence on record it is clear that the accused Munna Singh and Ram Prasad are the sons of the accused Guljar Singh, whereas accused Ram Raj Singh and Mannu Singh are brothers of the accused Guljar Singh and sons of one Bhoora Singh. Bhoora Singh and Sarju Singh were real brothers. The informant Ram Niranjan Singh and the deceased Niranjan Singh are sons of Sarju. The house of the informant and the deceased lies towards north of the house of the accused. In front of their houses, there is a public road which runs north-south. The accused persons put the obstruction on the road, where-from the rainy water flew towards south. On 27.6.1989 at about 7 p.m., the deceased went to the accused persons for complaining about the aforesaid obstruction. At the said place, the accused persons met the deceased over the road, where the obstruction was put. The appellant no.1, Munna Singh fired the shot by the tamancha at the deceased, who sustained serious injuries and became unconscious for some times and thereafter died on the spot. After hearing the sound of the fire, Smt. Deo Ratiya, Smt. Premvati, Ram Niranjan, Sanware Singh and several other persons of the village reached there. Smt. Deo Ratia and Smt. Premvati lied down over Niranjan Singh to save him from further assault but the accused persons also assaulted them by the lathies. The complainant has lodged the first information report against the accused persons on 28.6.1989 at 08.05 a.m. at P.S. Kishunpur, District Fatehpur. All the accused have been named in the FIR and their respective roles have been assigned. The role of causing fatal firearm injury to the deceased has been attributed to accused Munna Singh/appellant no.1 and the other appellant nos.2 to 5 have been assigned the role of beating the deceased by lathies. Finally, the trial court convicted and sentenced the appellants for having committed the murder of Niranjan Singh on 27.6.1989 to undergo imprisonment for life.

32. In the examination-in-chief of Smt. Premvati (PW-1) she herself had accepted that due to blocking of flow of water, the water started accumulating there, which created danger to her house. Her husband asked Guljar to remove the blockage so that the water might drain off but Guljar started abusing her husband and refused to remove the blockage. On this hue and cry, her mother-in-law and brother-in-law came there. It is also categorically stated that subsequent to hue and cry, Ram Prasad, Mannu, Ramraj, and Munna also came there. Munna was armed with tamancha and rest all the four were armed with lathies. All accused persons started abusing her husband and meanwhile, Munna fired gunshot on her husband. But in her cross-examination she had also assigned the role of firing to Guljar and stated that firstly, he opened the fire and when her husband fell down, Munna Singh opened the fire. In cross-examination she has changed the entire prosecution case, FIR and medical evidence. Even in her own examination-in-chief she only assigned the role of firing to Munna Singh, as such her testimony is also doubtful. In such situation, it cannot be presumed that when Niranjan Singh (deceased) approached Guljar for removal of obstruction on the road, prior to it there was an unlawful assembly with premeditated mind with common object that whenever Niranjan Singh (deceased) approaches, they will assault and kill him. In such situation, it cannot be accepted that there was any unlawful assembly. The similar view is also reiterated by Ram Niranjan Singh (PW-2/complainant and eye witness of the incident) vide his examination-in-chief. He has also reiterated the version of the FIR with categorical term that apprehending danger to the house, Niranjan Singh (deceased) went to the house of Guljar Singh and asked him to remove the obstruction. Nowhere in the examination-in-chief either PW-1 and PW-2 had accepted that when Niranjan Singh went to the house of Guljar Singh for removal of the obstruction then all the accused persons were already present with premeditated mind to commit crime. In fact there was altercation between Ram Niranjan (deceased) and Guljar Singh and Guljar Singh abused to the deceased and there was scuffle between them. At the time of conversation/altercation all the other accused persons also joined him.