Gaya Din and Others vs State

Vishnu Sahai, J.—Five persons, namely, Gaya Din, Jagdish, Beni Madho, Ram Bahadur and Ram Prasad, were charged by the I Ind Additional Sessions Judge, Raibareilly, for offences punishable under Sections 302/149, I.P.C. and 307/149, I.P.C. in addition, Beni Madho and Ram Bahadur for the offence punishable u/s 147, I.P.C. and Gaya Din, Jagdish and Ram Prasad for that punishable u/s 148, I.P.C. Vide judgment and order dated 6.3.1981, passed in Sessions Trial Nos. 160/80 and 161/80, the learned Judge convicted and sentenced all of them in the manner stated hereinafter:

(i) u/s 302/149, I.P.C. to imprisonment for life ; and

(ii) u/s 307/149, I.P.C. to five years'' R.I.

In addition, he convicted and sentenced Beni Madho and Ram Bahadur to one year''s R.I. for the offence punishable u/s 147, I.P.C. and Gaya Din, Jagdish and Ram Prasad to two years'' R. I. for that punishable u/s 148, I.P.C.

The sentences of all five of them, on different counts, were directed to run concurrently.

Aggrieved by their convictions and sentences, Gaya Din, Jagdish, Beni Madho and Ram Bahadur preferred Criminal Appeal No. 170 of 1981 in this Court and Ram Prasad Criminal Appeal No. 206 of 1981.

Since both these appeals arise out of a common factual matrix and judgment we are disposing them off by one judgment.

Shortly stated, the prosecution case runs as under:

The informant Guru Prasad (P.W. 1) is the son of deceased Ram Jiyawan and the injured Smt. Shiv Rani (P.W. 3). At the time of the incident, he, the deceased, Smt. Shiv Rani and another injured Krishnawati alias Krishna Devi were living in village Poore Chandi within the limits of police station Dalmau, district Raibareilly.

The informant''s grandfather was one Ganga. Ganga had a real brother named Bhagwan Din. The informant''s father Ram Jiyawan was the son of Ganga and one Babu was the son of Bhagwan Din. The informant''s father and Babu used to live jointly. Babu had about 10 bighas of land which was under the possession of the informant and his father. From about ten years prior to the incident, the whereabouts of Babu were not known. Appellants Beni Madho and Ram Bahadur set up a fictitious man to execute the sale deed in respect of the land possessed by Babu. The informant''s father Ram Jiyawan gave an application before the Sub-Registrar, Dalmau, as a consequence of which the game of Beni Madho and Ram Bahadur failed. Beni Madho and Ram Bahadur came to Raibareilly and got executed a sale deed in respect of three plots. The area of said plots was about two and three quarter bighas. About two to three days before their executing the sale deed, the informant''s father filed an injunction suit in civil court.

On account of the said facts, relations between the informant and his father Ram Jiyawan on one hand and Appellants Beni Madho and Ram Bahadur on the other were strained (Appellants Gaya Din and Jagdish are the nephews of Appellant Ram Bahadur and Appellant Ram Prasad is the associate of Appellants Beni Madho and Ram Bahadur).

Two days before the incident in the fields (in respect of which sale deed had been executed), the informant had sown jondhari and arhar. On the date of incident, i.e., on 4.7.1978, sometimes in the morning, Appellants Beni Madho and Ram Bahadur had upturned the jondhari and arhar sown by the informant, resulting in an altercation between them and the informant''s father Ram Jiyawan. At about 2.00 p.m. when the informant returned from the school, he said that if he had courage, he would again do the sowing. Thereupon Appellants Gaya Din, Jagdish and Ram Prasad, who were armed with guns, came to the house of informant. Seeing them coming, the informant''s father Ram Jiyawan entered inside the house and bolted the door. Appellants Beni Madho and Ram Bahadur, who were empty handed, were instigating that they be killed. Hearing the instigation, Jageshwar, Ram Naresh, Ram Sumer and Ram Avtar ran towards the door of the informant. From the western side, Appellants Ram Prasad, Gaya Din and Jagdish climbed on the roof of the informant''s house, where his father Ram Jiyawan, and his mother Smt. Shiv Rani were. The aforesaid three Appellants fired a shot each ; one struck Smt. Shiv Rani ; one the informant''s father Ram Jiyawan ; and one Krishna Devi, a girl, aged 10 to 11 years, of the village, who was coming towards the informant''s house. Then the Appellants ran away, threatening the informant and others. Thereafter the informant, along with his father Ram Jiyawan, his mother Smt. Shiv Rani and Krishna Devi on a bullock-cart came to Ghurwara, from where on a ikka they came to Raibareilly. On the way, the informant''s father Ram Jiyawan succumbed to this injuries. In District Hospital, Raibareilly, the informant got his father''s corpse deposited at the mortuary and his mother and Krishna Devi admitted.

The evidence of Dr. M. M. Pratap (P.W. 5) shows that on 4.7.1978 at 6.45 p.m. and 7.00 p.m. respectively, he medically examined Smt. Shiv Rani and Krishna Kumari at the District Hospital Raibareilly.

On the person of Smt. Shiv Rani, Dr. Pratap found the following injuries:

(i) Fire arm injury, wound of entry 1 cm. x 1 cm. blackening around the margins situated at 13 cms. above right knee joint on right thigh on anterior aspect.

(ii) Fire arm injury, wound of entry 1 cm. x 1 cm. blackening around the margins situated 4 cm. above injury No. 1 on right thigh on anterior aspect.

(iii) Fire arm injury, wound of exit 1.4 cm. x .5 cm. margins everted and lacerated. No blackening around the margin situated on posterior aspect of thigh right side 14 cms. above right popleteal fossa.

(iv) Fire arm injury on posterior lateral aspect of right thigh of size 1 cm. x .75 cm. margins are everted (wound of exit) situated 7.5 cm. above injury No. 3.

(v) Fire arm injury on left thigh on anterior side wound of entry 0.7 cm. x 7 cm. margins are inverted with blackening wound situated about 9 cms. above knee joint.

(vi) Fire arm injury wound of exit 1.3 cm. x 1.2 cm. on the back of left thigh, with margins everted situated about 10 cms. from left popleteal fossa.

In the opinion of Dr. Pratap, the said injuries were attributable to fire arm and were fresh.

On the person of Krishna Kumari, Dr. Pratap found the following injuries:

(i) Fire arm injury of size 0.5 cm. x 0.5 cm. with inverted margins, on right leg, situated 5 cms. above from lateral malleous (wound of entry) blackening around the margins are present.

(ii) Fire arm injury (wound of exit) of size 1 cm. x 1 cm. on posterior aspect of right ankle joint. No blackening around the margins situated about 3 cms. away from medial malleous right side. The margins of wounds are everted.

In the opinion of Dr. Pratap, the said injuries were attributable to a fire arm and were simple and fresh.

The evidence of informant shows that after getting Smt. Shiv Rani and Krishna Kumari admitted in District Hospital Raibareilly, he scribed his F.I.R. (exhibit Ka-1) in District Hospital Raibareilly itself.

The evidence of Constable Clerk Sidhnath Mishra (P.W. 6) shows that on 4.7.1978 at 8.15 p.m. the informant Guru Prasad lodged his F.I.R. at police station Kotwali, district Raibareilly, on the basis of which a case was registered in the General Diary.

The autopsy on the corpse of the deceased Ram Jiyawan was conducted on 5.7.1978 at 4.30 p.m. by Dr. H. M. Saxena (P.W. 7), who found on it the following ante-mortem injuries:

(i) Circular gun shot wound 2 cm. on front of left knee with blackening, tatooing all round 2 cm. with fracture of patella and lower end of femur, inverted margins, wound of entrance of gun shot.

(ii) Gun shot wound 5 cm. x 5 cm. back of left knee communicated with injury No. 1, everted margins. Wound to exit of gun shot. All soft tissues underneath, extremely lacerated.

In the post-mortem report the cause of death spelt out was shock and haemorrhage as a result of ante-mortem injuries.

In his deposition in the trial court Dr. Saxena stated that the ante-mortem injuries suffered by the deceased were sufficient in the ordinary course of nature to cause death.

In appears that since the crime was committed within the limits of police station Dalmau, the papers including the F.I.R., were transferred to the said police station, where investigation was done by S. I. Ram Lakhan Singh (P.W. 10). His evidence shows:

On 5.7.1978, he received the F.I.R. and other relevant papers pertaining to the said case at police station Dalmau. He went to the place of the incident and recorded the statements of witnesses Jageshwar, Ram Naresh, Ram Sumer and Ram Avtar and then prepared the site plan. He seized from the place of the incident plain and blood stained earth in separate containers. From the place of the incident he recovered an empty cartridge under a recovery memo. On 6.7.1978, he recorded the statements of Guru Prasad and Smt. Shiv Rani.

He did some other investigation also, but, in our view, a reference to it is not necessary for the disposal of these appeals.

Before completing the investigation he was transferred.

On 6.8.1978 the investigation was taken over by S.I. Surya Mani Tewari (P.W. 9) of P. S. Dalmau. On 17.8.1978, he recorded the statement of Smt. Shiv Rani ; on 20.8.1978 the statement of witnesses of inquest ; on 30.8.1978 (after completing the investigation) submitted the charge-sheet against Appellants Gaya Din, Jagdish, Beni Madho and Ram Bahadur ; and on 5.3.1979 submitted it against Appellant Ram Prasad (earlier he was absconding).

The case was committed to the Court of Sessions in the usual manner, where the Appellants after being charged on a number of counts were put up for trial. They pleaded not guilty to the charges and claimed to be tried.

During trial, in all, the prosecution examined ten witnesses. Three of them, namely, Guru Prasad, Jageshwar and Smt. Shiv Rani, P. Ws. 1, 2 and 3 respectively, were examined as eye-witnesses.

The learned trial Judge believed the ocular account furnished by the prosecution and convicted and sentenced the Appellants in the manner stated in paragraph-1.

Hence, these appeals.

We have heard learned Counsel for the parties and perused the entire material on record. In our view, these appeals deserve to be partly allowed.

In our view, Appellants Beni Madho and Ram Bahadur deserve the benefit of doubt and the other three Appellants, namely, Gaya Din, Jagdish and Ram Prasad warrant to be acquitted for the offences punishable under Sections 148, I.P.C., as also 302/149, I.P.C. and 307/149, I.P.C. In our view, instead of the offence punishable u/s 302/149, I.P.C. an offence punishable u/s 304 Part (II)/34 and instead of that punishable u/s 307/149, I.P.C. one u/s 307/34, I.P.C. would be made out against them.

A perusal of the impugned judgment would show that the learned trial Judge has recorded the conviction of the Appellants on the ocular account furnished by Guru Prasad, Jageshwar and Smt. Shiv Rani, P. Ws. 1, 2 and 3 respectively. In our view, by way of abundant caution, it would not be safe to accept it vis-a-vis Appellants Beni Madho and Ram Bahadur. A perusal of the evidence of the said witnesses, as also the F.I.R. lodged by the informant Guru Prasad, would show that the only role attributed to the said Appellants is of instigation. Courts have considered the evidence of instigation as a weak type of evidence. Experience shows, it is often deployed by eye-witnesses to inflate number of accused persons and the danger of this happening is all the more in cases where witnesses are interested and inimical. It is pertinent to mention that out of the three eye-witnesses, two namely, the informant Guru Prasad and Smt. Shiv Rani are the son and mother respectively of the deceased and the deceased as we have seen in para 3 nursed ill-will against these Appellants.

It is significant to point out that although in his cross-examination, the informant Guru Prasad has admitted that Appellants Beni Madho and Ram Bahadur came to his door and instigated, but neither in the F.I.R. nor in his statement u/s 161, Cr. P.C., he mentioned this.

So far as the third eye-witness, namely, Jageshwar is concerned, we also find that he cannot be said to be a wholly independent, inasmuch as the informant Guru Prasad admitted that he belongs to his community and he is on visiting terms with him.

When the said circumstances are examined in the background of the fact that although right from the F.I.R., the prosecution case is that independent persons, like Ram Naresh, Ram Sumer, Ram Avtar and a number of other villagers, saw the incident and none of them has been examined by the prosecution, it would be hazardous to accept the participation of the said Appellants only on the basis of the evidence of eye-witnesses that they instigated.

As a matter of fact the story that Appellants Beni Madho and Ram Bahadur instigated appears to be incredible and in derogation with probabilities. A perusal of the evidence of the eye-witnesses shows that this was a planned murder. We say this because their evidence shows that during the course of altercation between the deceased Ram Jiyawan and Appellants Beni Madho and Ram Bahadur, Appellants Gaya Din, Jagdish and Ram Prasad, who were armed with guns and were waiting at the house of Appellant Beni Madho rushed to the house of the deceased and caused injuries to him, his wife and Krishna Kumari. In our view, since it was a planned murder there was no rationale for Beni Madho and Ram Bahadur to instigate. In our experience, mostly during a sudden quarrel the instigation precedes the assault.

For the aforesaid reasons, Appellants Beni Madho and Ram Bahadur deserve the benefit of doubt.

However, we have no doubt that the learned trial Judge acted correctly in finding the involvement of the Appellants Gaya Din, Jagdish and Ram Prasad established in the incident.

All the three eye-witnesses, namely, Guru Prasad, Jageshwar and Smt. Shiv Rani, P. Ws. 1, 2 and 3 respectively, have categorically stated that the said Appellants climbed the roof of the deceased Ram Jiyawan and fired a shot each ; one of which struck Ram Jiyawan on his leg ; one Smt. Shiv Rani ; and one a girl Krishna Kumari, who was passing by at the said time. Earlier, we have reproduced the injuries sustained by the aforesaid three victims. Their perusal makes it manifest that all three of them sustained fire arm injuries.

It is significant to point out that Dr. M. M. Pratap (P.W. 5), who medically examined Smt. Shiv Rani and Krishna Kumari on the date of the incident itself at 6.45 p.m. and 7.00 p.m. respectively, has described in the injury report that their injuries were fresh. Medical Jurisprudence is clear that an injury remains fresh if it is caused within six hours. Since the incident took place at 2.00 p.m. on 4.7.1978 and the injuries of Smt. Shiv Rani and Krishna Kumari were examined at 6.45 p.m. and 7.00 p.m. respectively, the same day (i.e., within six hours) it is clear that they suffered injuries in the incident.

It is pertinent to mention that the duration of the injuries of the deceased also fits in with the time of incident. We find that in the autopsy report prepared by Dr. H. M. Saxena (P.W. 7) (the autopsy was done on 5.7.1978 at 4.30 p.m.) the duration of death is given as one day. This obviously means that the deceased could have been fired upon on 4.7.1978 at 2.00 p.m. (the time when the incident took place according to the prosecution).

Apart from the fact that vis-a-vis the participation of Appellants Gaya Din, Jagdish and Ram Prasad in the incident, the evidence of Guru Prasad, Jageshwar and Smt. Shiv Rani is in consonance with medical evidence, we find that there are certain features in their evidence which render it worthy of acceptance.

Since the incident took place on the roof of the deceased Ram Jiyawan the presence of Guru Prasad and Smt. Shiv Rani, who are the son and wife respectively of the deceased, on the place of the incident was natural.

That apart, we have seen that Smt. Shiv Rani is an injured witness (earlier we have extracted her injuries) and a perusal of her injuries makes it manifest that they could not be manufactured. In our view, her injuries lend a seal of assurance to her claim of having seen the incident.

We would like to point out that since in paragraph 3, we have set out the prosecution story on the basis of the recitals contained in examination-in-chief of Guru Prasad and Smt. Shiv Rani, we do not want to burden this judgment by reiterating the details.

We feel it pertinent to mention that although Guru Prasad and Smt. Shiv Rani were extensively cross-examined but nothing could be elicited therefrom which would discredit their credibility.

In our view, the evidence of Jageshwar (P.W. 2) also inspires confidence. His evidence shows that from the door of his house the house of Beni Madho is visible. In the circumstances, in our view, his claim that he saw the incident therefrom is tenable. It is significant to point out that he has named the said three Appellants namely, Gaya Din, Jagdish and Ram Prasad.

Since he has described the incident in the same manner as the informant Guru Prasad and Smt. Shiv Rani we do not want to swell this judgment by reiterating all the details.

In our view, the same considerations, which make the evidence of Guru Prasad and Smt. Shiv Rani creditworthy, also make the evidence of Jageshwar creditworthy. After all it is a trite what is good for the goose is good for the gander.

It is significant to point out that although he was extensively cross-examined but nothing could be elicited therefrom which could discredit his credibility.

In our view, the evidence of Guru Prasad, Jageshwar and Smt. Shiv Rani inspires confidence vis-a-vis Appellants Gaya Din, Jagdish and Ram Prasad and has been rightly accepted by the learned trial Judge.

Assurance to the ocular account pertaining to the participation of the Appellants Gaya Din, Jagdish and Ram Prasad is also forthcoming by the circumstance that F.I.R. in the instant case was promptly lodged. The evidence of the informant, to which we have adverted to earlier, shows that after the incident he arranged for a bullock-cart and on the same took the victims first to Ghurwara and from there on ekka to District Hospital Raibareilly, where he got them admitted (they were medically examined by 6.45 p.m.) and then scribed the F.I.R. This conduct of the informant in getting the victims first admitted in the District Hospital Raibareilly is perfectly natural because both the victims, namely, Smt. Shiv Rani and Krishna Kumari had fire arm injuries. In such a factual matrix when we find that the F.I.R. was lodged at 8.15 p.m. on the date of the incident itself (i.e., within 1-1/4 hours after medical examination of second victim Krishna Kumari) the F.I.R. cannot be castigated as being belated. It should be borne in mind that some time must have been taken by the informant in scribing his F.I.R. It is significant to point out that in this F.I.R. Appellants Gaya Din and Jagdish are named and Appellant Ram Prasad has been referred to as the associate of Appellant Beni Madho, who lived in village Subedar Ka Purwa (it is not disputed that he belongs to the said village) and therein the use of a fire arm has been assigned to them and it has also been stated that each of them fired a shot ; one of which struck Smt. Shiv Rani ; one Ram Jiyawan ; and one Krishna Kumari.

For the aforesaid reasons, in our view, the learned trial Judge acted correctly in holding the involvement of the Appellants Gaya Din, Jagdish and Ram Prasad established in the incident.

The question which remains is whether the learned trial Judge was justified in convicting Appellants Gaya Din, Jagdish and Ram Prasad for offences punishable under Sections 302/149, I.P.C., 307/149, I.P.C. and 148, I.P.C. In our view, since the number of accused, who participated in the incident, was five and benefit of doubt is being given to two of them, namely, Beni Madho and Ram Bahadur the number comes down to three and since for the application of Sections 149, I.P.C. and 148, I.P.C. there has to be an unlawful assembly and for an unlawful assembly, there should be a minimum membership of five persons neither Section 149, I.P.C. nor Section 148, I.P.C. would have application.

Consequently, the said Appellants would have to be acquitted for the offence punishable u/s 148, I.P.C. and they would also have to be acquitted for that punishable under Sections 302/149, I.P.C. and 307/149, I.P.C.

The question is whether offences punishable under Sections 307/34, I.P.C. and 302/34, I.P.C. are made out against the Appellants. We are not oblivious to the fact that the said Appellants have not been charged for the said offences. However, in view of the ratio laid down in paragraph-9 of the oft-quoted case of B.N. Srikantiah and Others Vs. The State of Mysore, , there would be no impediment in convicting them under the said sections. Paragraph-9 of the said decision reads thus:

The omission to mention Section 34 of the Indian Penal Code in the charge cannot affect the case unless prejudice is shown to have resulted in consequence thereof. The charge was that the Appellant and others were members of an unlawful assembly, the common object of which was to murder the deceased. Although there is a difference in common object and common intention, they both deal "with combination of persons who become punishable as sharers in an offence," and a charge u/s 149, Indian Penal Code is no impediment to a conviction by the application of Section 34 if the evidence discloses the commission of the offence in furtherance of the common intention of all.

In our view, an offence punishable u/s 307/34, I.P.C. would be made out against the said Appellants because as a consequence of prior planning they caused fire arm injuries to Smt. Shiv Rani and Krishna Kumari. In our view, the injuries betray an intention on the part of the said persons or knowledge to commit the murder of Smt. Shiv Rani. At any rate, it can safely be said that they knew that Smt. Shiv Rani could be killed as a consequence of them.

The question is whether an offence punishable u/s 302/34, I.P.C. would be made out against these Appellants. Our answer to it is in the negative. In our considered view, only an offence punishable u/s 304 Part (ii)/34, I.P.C. would be made out against them. We have seen that prosecution has not specified as to who amongst these three Appellants, namely, Gaya Din, Jagdish and Ram Prasad caused the solitary gun shot wound of entry suffered by the deceased on the front of his left knee which involved fracture of patella and lower end of femur. It is significant to point out that the other ante-mortem injury was a gun shot wound of exit connected with the above mentioned injury.

It is true that the autopsy surgeon Dr. H. M. Saxena (P.W. 7) has stated in his examination-in-chief that both the ante-mortem injuries suffered by the deceased were sufficient in the ordinary course of nature to cause death and it appears that on account of this evidence, the learned trial Judge has convicted the Appellants for the offence of murder. In our view, the said evidence of the autopsy surgeon cannot be accepted because Dr. H. M. Saxena in his cross-examination has admitted that in case loss of blood would have stopped, the possibility of death would have been less (Agar Khoon Ka Bahav Ruk Jata to Maut Ki Sambhavana Kam Thi). In other words the injuries suffered by the deceased were sufficient to cause his death in the ordinary course of nature on account of excessive loss of blood.

In our view, clause thirdly of Section 300, I.P.C., which deals with sufficiency of injuries to cause death in the ordinary course of nature, would have no application.

Clause thirdly of Section 300, I.P.C. reads thus:

Murder-except in the case hereinafter excepted, culpable homicide is murder....

2ndly....

3rdly-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.

A perusal of the said clause would show that two pre-requisites should be satisfied before it can be invoked, namely, (a) There should be intention to cause bodily injury to any person, and (b) The bodily injury intended to be inflicted must be sufficient in the ordinary course of nature to cause death.

It is well-settled that intention to cause bodily injury contemplated by clause thirdly not only relates to causing the external injury but also to the internal injury. In this case, so far as causing of the external injury suffered by the deceased on front of his left knee is concerned, there can be no dispute that the said Appellants intended causing it. But it was not the external injury but the internal injury (massive bleeding) beneath it which led to the death. In our view it cannot be said that the said Appellants intended causing massive bleeding. At the highest, it can only be said that when they conjointly caused the said injury, they committed an act with the knowledge that they were likely to cause the death of the deceased in terms of clause thirdly of Section 299, I.P.C. the breach of which is punishable u/s 304, I.P.C. Since in our view, the said Appellants conjointly committed the said act, they would be liable for the offence punishable u/s 301(ii)/34, I.P.C.

In this connection, we feel it apposite to refer to the decision of the Apex Court in Laxman Kalu Nikalje Vs. The State of Maharashtra, . A perusal of paragraphs 1, 9, 10 and 11 of it would show thus: The Bombay High Court set aside the acquittal of Laxman Kalu Nikalje and convicted him for the offence punishable u/s 302, I.P.C. and sentenced him to imprisonment for life. He inflicted a knife injury on the chest of the deceased, which ruptured the auxiliary artery. The said injury was sufficient in the ordinary course of nature to cause death. The Supreme Court took the view that although there was intention to cause external injury but since there was no intention to cause the internal injury, namely, rupture of the auxiliary artery the offence would not fall within the mischief of clause thirdly of Section 300, I.P.C. It held that the act committed by Laxman Kalu Nikalje fell within ambit of clause thirdly of Section 299, I.P.C. In its view when Laxman Kalu Nikalje inflicted a knife blow on the chest of the deceased he had the knowledge of his death in terms of clause thirdly of Section 299, I.P.C. Consequently, it acquitted him of the offence punishable u/s 302, I.P.C. and instead convicted him for that punishable u/s 304 Part (II), I.P.C.

For the said reasons, in our view, only an offence punishable u/s 304Part (II)/34, I.P.C. is made out against Appellants Gaya Din, Jagdish and Ram Prasad.

The only question, which remains, is the quantum of sentence to be awarded to Appellants Gaya Din, Jagdish and Ram Prasad for offences punishable under Sections 307/34, I.P.C. and 304 Part (II)/34, I.P.C. Considering the over-all circumstances, on the former count, in our, view, a sentence of three years'' R.I. would meet the ends of justice (the learned trial Judge had sentenced them to five years'' R.I. for the offence punishable u/s 307/149, I.P.C.). On the latter count, i.e., u/s 304 Part (II)/34, I.P.C. considering the over-all circumstances and specially bearing in mind the fact that the incident took place more than 24 years ago (it took place on 4.7.1978) a sentence of five years'' R.I. would meet the ends of justice.

We would be failing in our fairness if before proceeding to the operative part of the judgment, we do not refer to the three principal submissions canvassed by Mr. Mukul Rakesh, learned Counsel for the Appellants.

He firstly contended that the ocular account furnished by the three eye-witnesses, namely, Guru Prasad, Jageshwar and Smt. Shiv Rani cannot be accepted because the same is not in consonance with medical evidence. He pointed out that the evidence of the said witnesses showed that Appellants Gaya Din, Jagdish and Ram Prasad fired from the roof and the victim Krishna Kumari sustained injuries while she was walking by the side of the house of the deceased. He contended that inasmuch as in injury No. 1 suffered by her the doctor found blackening, the evidence of the eye-witnesses should be rejected.

It appears that the said argument was also canvassed before the learned trial Judge , who dealt with it in paragraphs 29, 30 and 31 of the impugned judgment. In paragraph-30 of the impugned judgment, the learned trial Judge has referred to the single Judge decision of this Court rendered in the case of Ram Singh v. State, 1971 ALJ 833, wherein this Court has taken the view in paragraph 4 that if the cartridge was indigenously filled and did not carry out good quality of gun powder, existence of blackening around the wound would be there even if the shot was fired from four to five feet.

We agree with the ratio laid down in the said decision. We would also like to refer to a decision of the Apex Court in this connection, namely, that in Solanki Chimanbhai Ukabhai Vs. State of Gujarat, . In paragraph 12 of the said decision the Supreme Court observed thus:

Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however, the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye-witnesses the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence." (Emphasis supplied) If we bear in mind the ratio laid down in the said decision, then the circumstance that blackening was found around injury No. 1 suffered by Krishna Kumari would not discredit the evidence of the aforesaid three witnesses.

Hence, this submission fails.

Secondly, Mr. Mukul Rakesh, contended that Appellant Ram Prasad deserves the benefit of doubt.

It is significant to point out that this submission was also canvassed before the learned trial Judge, who repelled it for reasons mentioned in paragraphs 26 to 28 of the impugned judgment.

In our view since the said reasons are plausible there is no need to repeat them. It is significant to point out that all the three eye-witnesses have named him in their statements in the trial court. It is true that the informant Guru Prasad has not specifically named him in the F.I.R. and instead has described him as a person, who was an associate of Appellant Beni Madho and a resident of village Subedar Ka Purwa (he lives in the said village). It is pertinent to mention that in her cross-examination, Smt. Shiv Rani candidly stated that at the time of the incident, she knew name of Ram Prasad and denied that she learnt about his name after the incident. She also denied that she told the Investigating Officer that she subsequently learnt of the name of Ram Prasad. It is significant to point out that the Investigating Officer S.I. Ram Lakhan Singh (P.W. 10), who recorded the statement of Smt. Shiv Rani on 6.7.1978 (i.e., two days after the incident), in his cross-examination denied that Smt. Shiv Rani did not tell him the name of Ram Prasad and he had written the same himself. In our view, the circumstance that an injured witness, namely, Smt. Shiv Rani, has nominated Ram Prasad heavily goes against him.

We feel it pertinent to mention that although in his cross-examination Jageshwar (P.W. 2) admitted that on the second day, he was interrogated by the Investigating Officer u/s 161, Cr. P.C. and he did not disclose the name of Ram Prasad to the Investigating Officer, but he furnished the reason for the same, namely, that he did not remember it. However, the said omission has to be ignored in law because it was not put in cross-examination to S.I. Ram Lakhan Singh (P.W. 10), who had recorded his statement on 5.7.1978.

It is significant to mention that Jageshwar (P.W. 2) is a wholly independent witness, who had no rancour or ill-will against Appellant Ram Prasad. In our view in the absence of the same he would not have falsely implicated Ram Prasad.

It is true that the evidence of the informant Guru Prasad and Smt. Shiv Rani shows that the Ram Prasad used to come to the house of Appellant Beni Madho, but, in our view, there was no direct enmity between them and Ram Prasad, which could have also prompted them to falsely implicate him.

Another circumstance which shows that the Appellant Ram Prasad participated in the incident is that all the three eye-witnesses have stated that Appellants Gaya Din, Jagdish and Ram Prasad fired a shot each and if the number of fire arm injures suffered by the deceased and the two injured are carefully anlysed they show that three shots were fired.

For the aforesaid reasons, in our view, the learned trial Judge acted correctly in finding the involvement of Appellant Ram Prasad established in the incident.

Thirdly, Mr. Mukul Rakesh contended that since the incident took place more than 24 years ago, instead of imposing a substantive sentence on Appellants Gaya Din, Jagdish and Ram Prasad, we should impose a sentence of heavy fine, on both the counts, namely, Sections 307/34, I.P.C. and 304 Part (II)/34, I.P.C. and direct it to be paid as compensation to the injured Smt. Shiv Rani and the legal heirs of the deceased.

We have given our anxious consideration to the said submission and are constrained to observe that we are not inclined to accept it. In a pre-planned manner, Appellants Gaya Din, Jagdish and Ram Prasad entered inside the house of the deceased ; climbed on his roof ; and thereafter fired on him from guns ; and caused injuries to two others. Considering the dare-devil manner in which the said Appellants committed the said crime, we reject this submission.

No other significant submission was canvassed before us by learned Counsel for the Appellants.

In the result, we partly allow these appeals. We give benefit of doubt to Appellants Beni Madho and Ram Bahadur on all the counts, namely, Sections 147, I.P.C., 302/149, I.P.C. and 307/149, I.P.C. and acquit them thereunder. They are on bail. They need not surrender. Their bail bonds shall stand cancelled and sureties discharged.

We acquit Appellants Gaya Din, Jagdish and Ram Prasad for the offence punishable u/s 148, I.P.C. We also acquit them for the offence punishable u/s 307/149, I.P.C. and set aside their conviction and sentence thereunder and instead convict them for that u/s 307/34, I.P.C. and sentence each one of them to undergo three years'' R.I.

We also acquit the said Appellants for the offence punishable u/s 302/149, I.P.C. and set aside their convictions and sentences thereunder, and instead convict them for that punishable u/s 304 Part (II)/34, I.P.C. and sentence each of them to undergo five years'' R.I.

The sentences of Appellants Gaya Din, Jagdish and Ram Prasad on all the counts shall run concurrently.

Appellants Gaya Din, Jagdish and Ram Prasad are on bail and shall be taken into custody forthwith to serve out their sentences.