Jagdish Singh and Others (in Jail) vs State

This appeal has been preferred by Jagdish Singh, Udhav Singh, Madho Singh, Brahma Singh, Satrohan Singh, Ram Moorat Singh, Bhagwan Datt Singh, Paras Singh, Ashok Singh, Shivanand Singh, Suresh Singh, Bhaddar Singh, and Lalta against the judgment and order dated 18.3.1981 passed by the Ist Additional Sessions Judge, Gonda in Sessions Trial No. 45 of 1978, whereby they have been convicted and sentenced in the manner stated hereinafter:

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

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

In addition, Ashok Singh, Jagdish Singh, Satrohan Singh, Madho Singh, Paras Singh, Lalta and Ram Moorat Singh have been convicted and sentenced to undergo two years R.I. for the offence punishable u/s 148, I.P.C. and Udhav Singh, Brahma Singh, Bhagwan Datt Singh, Shivanand Singh, Suresh Singh, and Bhaddar Singh have been convicted and sentenced to undergo one year''s R.I. for the offence punishable u/s 147, I.P.C.

Further, Ashok Singh, Satrohan Singh, Lalta and Bhaddar Singh have been convicted and sentenced to undergo three years'' R.I. for the offence punishable u/s 201, I.P.C.

The sentences of the Appellants, on all the counts have been directed to run concurrently.

Shortly stated, the prosecution case runs as under:

The informant Baijnath Singh P.W. 1 is the brother of the deceased Raghunath Singh. At the time of the incident, Baijnath Singh and Raghunath Singh were living in village Koyalwar Manjha, which was situated within the limits of police station, Umari Begamganj, district Gonda. There was enmity between the informant and Raghunath Singh on one hand and the Appellants on the other. Proceedings u/s 107, Cr. P.C. were initiated by the Appellants against Baijnath Singh and others. In 1975-76 Appellants Paras, Madho, Udhav etc. were bound down u/s 107, Cr. P.C.

On 17.6.1976, the informant Baijnath Singh P.W. 1, along with his brother Raghunath Singh (the deceased) and labourers Agnoo P.W. 2, Munna P.W. 5 and the deceased Ram Asrey went to village Kaithi to plough the field and sow paddy. At about 12 noon they finished their work and proceeded towards Koyalwar Ghat on the banks of Sarju river, to catch a boat for their house. While they were on the way and had reached near the madha of Appellant Jagdish Singh, the thirteen Appellants, namely, Jagdish Singh, Udhav Singh, Madho Singh, Brahma Singh, Satrohan Singh, Ram Moorat Singh, Bhagwan Datt Singh, Paras Singh, Ashok Singh, Shivanand Singh, Suresh Singh, Bhaddar Singh, and Lalta emerged. Jagdish Singh, Madho Singh, Satrohan Singh, Ram Moorat Singh and Lalta were armed with bhalas ; Paras Singh and Ashok Singh with pharsas ; and Udhav Singh, Brahma Singh, Bhagwan Datt Singh, Shivanand Singh, Suresh Singh and Bhaddar Singh with lathis. They surrounded the informant and others. Appellant Jagdish Singh instigated "Maar Lo, Jane Na Paye" (kill them, they should not be allowed to escape). Thereafter the thirteen Appellants pounced upon the informant and others. The informant, however, managed to escape, while his brother Raghunath Singh, Ram Asrey, Agnoo and Munna sustained injuries as a consequence of the assault launched by the Appellants. Ram Asrey succumbed to his injuries on the spot. Hearing the cries of the informant and others, Raja Ram P.W. 6, Har Prasad P.W. 10 and some others reached on the place of the incident and reprimanded the Appellants. They also saw the incident. In self-defence, farsa, ballam and lathi were also used by the informant and others as a consequence of which, Appellants Ashok Singh, Paras Singh, and Udhav Singh sustained injuries. Thereafter Appellants Lalta, Ashok, Satrohan and Bhaddar with the corpse of Ram Asrey proceeded in the direction of Sarju river, followed by the other Appellants. Lalta and others threw the corpse of Ram Asrey in Sarju river. Thereafter the informant along with his brother Raghunath Singh, who was precariously injured, and Munna and Agnoo, who were injured proceeded to his house. Since he felt that the Appellants may be waiting in ambush, through a different way he proceeded to police station Umari Begumganj, district Gonda, where he lodged his F.I.R.

The evidence of head constable Gorakh Nath Singh P.W. 14 shows that on 17.6.1976 the informant Baijnath Singh came to police station Umari Begumganj, Gonda and on his dictation he scribed the F.I.R. (exhibit ka-1) and after reading over the same to him he signed it. It is pertinent to mention that on the basis of the F.I.R. he prepared the chik F.I.R. exhibit ka-24. A perusal of exhibit ka-24 shows that it was lodged on 17.6.1976 at 4.10 p.m. and the distance between the place of the incident and police station Umari Begumganj, Gonda, was six miles.

The evidence of S.I., Ram Naresh Singh P.W. 13 shows thus:

On 17.6.1976, in his presence the F.I.R. was lodged at 4.15 p.m. He left the police station for the purposes of investigation and reached the place of the incident at 7.30 p.m. He sent for the informant Baijnath Singh and recorded his statement u/s 161, Cr. P.C. He thereafter recorded the statements of Raghunath Singh, Munna, Agnoo and other witnesses. Since there were injuries on the person of Raghunath Singh, Munna Kori and Agnoo he sent them, through a constable for medical examination. Next day (i.e., on 18.6.1976) he recorded the statements of witnesses Ram Khilawan, Sarju Prasad, Har Prasad, Raja Ram and others. He inspected the place of the incident with the help of the witnesses and prepared the site plan exhibit ka-11. From the place of the incident he seized plain and blood stained earth in separate containers, under recovery memos. On 18.6.1976, itself he arrested the Appellants, Jagdish Singh, Udhav Singh, Paras Singh and Ashok Singh and took their statements. He found injuries on the person of Ashok Singh, Paras Singh and Udhav Singh. He sent the said persons to District Jail. On the said date at 11.50 a.m. he learnt about the death of Raghunath Singh and left for police station Umari Begumganj, Gonda, where he prepared the inquest on his corpse and thereafter sent it for autopsy. On 22.6.1976, at 5.35 p.m., Ram Khilawan P.W. 3 came to the police station and furnished information that the corpse of Ram Asrey was lying in the river. He recorded the said information in the G.D. and at 11.00 p.m. recovered the said corpse from the side of bank of Sarju river. At night since no light was available he prepared the inquest on it next morning. He thereafter sent it for autopsy.

Thereafter the investigation was taken over from him by S.I. Raj Pal Singh. He has not been examined by the prosecution. It appears that Raj Pal Singh submitted the charge-sheet against the Appellants.

Going backwards, the injuries of Agnoo P.W. 2 and Munna P.W. 5 were medically examined on 18.6.1976 at 6.10 p.m. and 6.45 p.m. respectively by Dr. Ram Mohan P.W. 11, who found on the person of the former (Agnoo) following injuries:

(i) Penetrating wound 1 cm. x 0.5 cm. x 3.5 cm. on left arm outer side.

(ii) Swelling 22 cm. below the left shoulder and left forearm.

(iii) Swelling .5 cm. x .5 cm. on the right shoulder outer side.

(iv) Contusion behind the right upper arm 4 cm. x 1 cm., 12 cm. above the wrist.

In the opinion of Dr. Mohan, injury No. 1 was attributable to a pointed object ; the other injuries to a blunt object ; all of them were simple ; and they were one day old.

On the person of Munna, Dr. Mohan found the following injuries:

(i) Incised wound on the right hand 7 cm. x 3.5 cm. x bone deep, 10 cm. above middle finger bone cut and separate.

(ii) Incised wound 2 cm. x 10.5 cm. on the front side of the left wrist.

In the opinion of Dr. Mohan, the said injuries were attributable to a sharp object and could have been caused by pharsa on 17.6.1976 at 12.00 noon.

Once again going backwards, the autopsy on the corpse of Raghunath was conducted on 19.6.1976, at 4.00 p.m., by Dr. Narendra Kumar Pandey P.W. 9, who found on it the following ante-mortem injuries:

(i) Incised wound 2-1/2 cm. x 1-1/2 cm. x 14-1/2 cm. below 2" outer to the umbilicus on the left side of abdomen, cavity deep.

(ii) Incised wound 2 cm. x 1 cm. x 3-1/2 cm. below medial to the injury No. 1, directed backward and medially cavity deep.

(iii) Contusion 8 cm. x 2 cm. on the top of the left side of head 9 cm. above the left ear.

On internal examination Dr. Pandey found the peritoneum and large intestines cut, under injuries Nos. 1 and 2.

In the opinion of Dr. Pandey, the deceased died on account of shock and haemorrhage as a result of injury to abdomen and intestines.

Once again going backwards, the autopsy on the corpse of Ram Asrey was conducted on 24.6.1976 at 11.00 a.m. by Dr. Narendra Verma P.W. 4, who found on it the following ante-mortem injuries:

(i) Penetrating wound 2-1/2 cm. x 2 cm. on right side chest front middle.

(ii) Penetrating wound 2-1/2 cm. x 1 cm. on right side chest flank.

(iii) Penetrating wound 5-1/2 cm. x 2 cm. on left side chest just below left collar bone with fracture of second rib underneath.

(iv) Penetrating wound 2 cm. x 1 cm. on left side chest front, with fracture of third rib underneath it.

(v) Penetrating wound 3 cm. x 1/2 cm. x 3 cm. (paper torn) in.... (paper torn) thumb and forefinger.

(vi) Penetrating wound 1-1/2 cm. x 1 cm. on right side just above collar bone.

(vii) Penetrating wound 2-1/2 cm. x 1-1/2 cm. x 1 cm. on left upper arm outer lower part.

On internal examination Dr. Verma found fractures of second and third ribs on left side, below injury Nos. 3 and 4.

In his opinion, the deceased died on account of shock and haemorrhage as a result of ante-mortem injuries suffered by him and he could have died on 17.6.1976 at 12.00 noon.

It is pertinent to mention that a cross-F.I.R. in respect of the same incident was lodged by Changur Singh, father of Appellants Jagdish Singh, Udhav Singh, Madho Singh, Brahma Singh, Satrohan Singh, Ram Moorat Singh and Bhagwan Datt Singh.

The evidence of Head Moharrir Gorak Nath Singh P.W. 14 shows that on the basis of cross-F.I.R., Cr. No. 87A was registered at police station Umari Begumganj, Gonda, on 22.6.1976.

It is significant to mention that exhibit ka-26 is the copy of the cross-F.I.R. and its perusal shows that on its basis a case under Sections 147, 148, 149, 323, 324, I.P.C. was registered against 29 persons, including Baijnath Singh P.W. 1, the deceased Raghunath Singh and injured Agnoo. The version given in the cross-F.I.R. is that on 17.6.1976 at 12.00 p.m. Baijnath Singh, Raghunath Singh and 27 others armed with ballam, pharsa and kanta, came to his door (Changur Singh''s door) ; started abusing ; and when he stopped them from abusing, they started assaulting and attempted to enter inside the house. On his (Changur Singh''s) cries, Ashok Singh, Udhav Singh, Paras Singh (all Appellants) and some others came and started assaulting them. Thereafter, Baijnath Singh, Raghunath Singh and others went away.

It is significant to mention that the aforesaid three Appellants, namely, Udhav Singh, Paras Singh and Ashok Singh (who according to the prosecution are said to have been assaulted by the informant and others in exercise of right of private defence of their person and according to the defence were victims of aggression) were also medically examined on 21.6.1976 at 5.20 p.m., 5.30 p.m. and 5.35 p.m. respectively inside District Jail, Gonda by Dr. Kazi Anwar Ahmad P.W. 15, who found on their person the injuries enumerated below:

Udhav Singh:

(i) Abrasion 2" x 1/10" on the left side upper back.

(ii) Contusion on the left upper arm.

(iii) Abrasion 1" x 1" on the lower portion of left upper arm.

(iv) Lacerated wound 7/10" x 1/2" x 3/10" on the right thigh.

Paras Singh:

(i) Abrasion 1/2" x 1/10" on the head, 3.5" above.

(ii) Contusion 7.5" x 1" slightly below the right shoulder.

(iii) Lacerated wound 1/2" x 3/10" x 1/10" on the left thigh corner of back.

Ashok Singh:

(i) Lacerated wound 1-1/4" x 1/4" x bone deep on the right upper arm.

(ii) Lacerated wound 1/2" x 1/10" x skin deep 2" above the right eyebrow.

(iii) Abrasion 1/4" x 1/4" on the lower side of sternum.

(iv) complaints of injury on the left wrist but there is no visible injury.

In the opinion of Dr. Kazi Anwar Ahmad, the injuries of the aforesaid three victims were simple in nature ; attributable to a blunt object ; and were four days old.

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 out for trial. They pleaded not guilty to the charges and claimed to be tried. It is significant to mention that excepting Appellants Bhagwan Datt Singh, Ashok Singh and Paras Singh, who stated in their statements u/s 313, Cr. P.C. that the deceased Raghunath Singh and others assaulted them with lathi, pharsa, etc. and on their cries, some persons came, who used lathi and ballam in order to defend them and both sides sustained injuries, the remaining Appellants pleaded denial.

During trial, in all, the prosecution examined fifteen witnesses. Five of them, namely, Baijnath Singh, Agnoo, Munna, Raja Ram and Har Prasad, P. Ws. 1, 2, 5, 6 and 10 respectively were examined as eye-witnesses. In defence, no witness was examined. It is significant to mention that during cross-examination the suggestion given to Baijnath Singh, Agnoo and Munna was that on the date and time of the incident watermelons were stacked at the madha of Appellant Jagdish Singh and the deceased Raghunath Singh, along with 30-35 persons armed with kanta, lathi and ballam went to the madha of Jagdish Singh to forcibly take them and when Jagdish Singh and others resisted this endeavour of theirs, they assaulted Appellant Bhagwan Datt Singh and also Appellants Ashok Singh, Paras Singh and Udhav Singh, who came to his rescue, and it was Ashok Singh, Paras Singh and Udhav Singh, who assaulted them. The said suggestion was emphatically denied by the said witnesses.

The learned trial Judge believed the evidence adduced by the prosecution and convicted and sentenced the Appellants in the manner stated in para 1.

Hence, this appeal.

We have heard Mr. Nagendra Mohan for the Appellants ; Mr. Umesh Verma, Additional Public Prosecutor for the State of U.P. and Mr. S. M. Nasir for the original complainant. We have also perused the depositions by the prosecution witnesses ; the material exhibits proved and tendered by the prosecution ; the statements of the Appellants recorded u/s 313, Cr. P.C., the counter F.I.R. of the incident lodged by Changur Singh ; and the impugned judgment. In our view, this appeal deserves to be partly allowed. We are of the judgment that Appellants Brahma Singh, Bhagwan Datt Singh, Shivanand Singh and Suresh Singh deserve the benefit of doubt.

So far as the involvement in the incident of Appellants, other than Appellants Brahma Singh, Bhagwan Datt Singh, Shivanand Singh and Suresh Singh, is concerned, the same, in our view, is established by the credible ocular account furnished by Baijnath Singh, Agnoo, Munna, Raja Ram and Har Prasad, P. Ws. 1, 2, 5, 6 and 10 respectively. In addition, the offence u/s 201, I.P.C. is brought home against Appellants Ashok Singh, Satrohan Singh, Lalta and Bhaddar Singh by the evidence of Ram Khilawan P.W. 2. We now propose giving our reasons as to why we find the account of the said witnesses to be worthy of belief.

We begin with the evidence of Baijnath Singh, P.W. 1. Since in para 2, we have set out the prosecution story on the basis of the recitals contained in his examination-in-chief, we do not want to burden our judgment by reiterating the details. In short, his evidence shows-there was enmity between him and his brother Raghunath Singh on one hand and Appellants Jagdish Singh and others on the other (we have detailed this enmity in para 2). On the date of the incident, he along with his brother Raghunath Singh and labourers Agnoo, Munna and Ram Asrey had gone to village Kaithi to plough his field and sow paddy. After completing their work, at about 12.00 noon, while they were on their way home and had reached the madha of Jagdish Singh, the thirteen Appellants emerged. Out of them Jagdish Singh, Madho Singh, Satrohan Singh, Ram Moorat Singh and Lalta were armed with ballams ; Paras Singh and Ashok Singh were armed with farsas ; and Udhav Singh, Brahma Singh, Bhagwan Datt Singh, Shivanand Singh, Suresh Singh and Bhaddar Singh were armed with lathis. On the instigation of Jagdish Singh, that they should be killed, the Appellants launched an assault on them. He managed to escape. But Raghunath Singh, Ram Asrey, Agnoo and Munna sustained injuries. On hearing their cries, a number of witnesses, including Raja Ram P.W. 6 and Har Prasad P.W. 10 came. They also saw the incident. In self-defence, farsa, ballam and lathi were also used by him and others as a consequence of which, Appellants Ashok Singh, Paras Singh and Udhav Singh sustained injuries. As a consequence of the assault, Ram Asrey succumbed to his injuries on the spot. Thereafter, Appellants Lalta, Ashok Singh, Satrohan Singh and Bhaddar Singh along with his corpse, followed by the other Appellants went to Sarju river where they threw the corpse and went away. Thereafter, he along with the victims went to his house and then went to police station Umari Begumganj, Gonda where he lodged his F.I.R.

We have gone through the statement of Baijnath Singh and make no bones in observing that we find it to be credible.

It should be borne in mind that in the first place, he has explained his presence on the place of the incident. He has stated that he along with his brother and others had gone to plough land and sow paddy in village Kaithi and while they were returning for their house and had reached the madha of Jagdish Singh, the incident took place.

Secondly, the manner of assault as furnished by him is corroborated by the medical evidence. He stated that six of the Appellants with ballams, five with lathis and two with farsas launched an assault on the victims. We have earlier seen that the deceased Ram Asrey sustained seven punctured injuries, the deceased Raghunath Singh two incised wounds and one contusion ; injured Agnoo one punctured wound, two swellings and one contusion ; and the injured Munna sustained two incised wounds.

Thirdly, we find that his evidence that the incident took place at the madha of Appellant Jagdish Singh is corroborated by the evidence of the Investigating Officer S.I. Ram Naresh Singh, who recovered therefrom plain and blood stained earth, which he seized in separate containers, under recovery memos. It is significant to point out that the said earth was sent to chemical analyst who found on it blood. We may also, however, add that it was also sent to the serologist who found blood stains to be disintegrated.

Fourthly, we may mention that the evidence of the Investigating Officer, S.I. Ram Naresh Singh P.W. 13 shows that on the date of the incident itself, he recorded his (Baijnath Singh''s) statement under Section, 161, Cr. P.C. We make no bones in observing that criminal courts attach great importance to the prompt recording of statement of a witness u/s 161, Cr. P.C. because the same substantially eliminates the possibility of embellishments and concoction creeping therein.

Fifthly, we find he has given a very plausible reason as to why the Appellants assaulted his brother Raghunath Singh and those who were accompanying him, namely, Agnoo, Munna and Ram Asrey. That reason is, acute enmity between the Appellants Jagdish Singh and others on one side and he, Raghunath Singh and others on the other. In para 2 we have stated about the said enmity and details about it are also contained in his cross-examination in para 8.

It is significant to mention that although Baijnath Singh was subjected to extensive cross-examination but nothing could be elicited therefrom which could impair his credibility.

For the aforesaid reasons, in our view, the evidence of Baijnath Singh inspires confidence.

We now take up the evidence of Agnoo P.W. 2 and Munna P.W. 5. We would deal with it together. Their evidence shows that on the date of the incident, they were working as labourers of the informant Baijnath Singh and along with Baijnath Singh his brother Raghunath Singh and another labourer Ram Asrey had gone to plough and sow paddy in the field of informant Baijnath Singh in village Kaithi and while after completing the work, they were returning along with the said persons, and had reached the madha of Appellant Jagdish Singh the incident took place. Since they have furnished exactly the same details in respect of the incident as Baijnath Singh, we do not want to burden our judgment by reiterating them.

In our judgment, like Baijnath Singh, Agnoo and Munna have also explained their presence on the place of the incident and since they have furnished the same manner of assault as him and while discussing his evidence we have held that the account furnished by him is in conformity with medical evidence, it follows as a logical imperative that their evidence is also in consonance with medical evidence.

That apart, it is significant to mention that the evidence of the Investigating Officer, S.I. Ram Naresh Singh P.W. 13 shows that on the date of the incident itself, he interrogated them u/s 161, Cr. P.C. It is significant to mention that criminal courts attach great importance to the prompt interrogation of a witness u/s 161, Cr. P.C. because the same substantially eliminates the possibility of a doctored account creeping therein.

Further, we wish to mention that both Munna and Agnoo were independent witnesses, who had no rancour or ill-will against the Appellants and, in our view, in the absence of the same, would not have falsely implicated them.

We may also mention that although both these witnesses were subjected to extensive cross-examination but nothing could be elicited therefrom which could impair their credibility.

For the said reasons, in our view, the evidence of Agnoo P.W. 2 and Munna P.W. 5, both of whom are injured witnesses, whose injuries as per medical evidence referred to earlier fit in with the time of incident, inspires confidence.

18A. It is significant to mention that Courts attach great importance to the testimony of a injured witness because the same fixes his presence on the place of the incident. And that being so, the limited question which survives is of his credibility. We have already furnished our reasons as to why we find the testimony of Agnoo and Munna to be credible. Hence, we accept their evidence.

We now come to the evidence of Raja Ram P.W. 6 and Har Prasad P.W. 10. We also propose taking it together. The evidence of former shows that his sister lives in village Kaithi (village where the informant and others had gone to plough field and sow paddy) and while he was returning from his sister''s place and had reached the madha of Appellant Jagdish Singh he saw the incident. The evidence of the latter shows that while he was returning from Ghudanpurwa and had reached the madha of Appellant Jagdish Singh he saw the incident. It is significant to mention that since these witnesses have broadly furnished the same manner of incident as Baijnath Singh P.W. 1, Agnoo P.W. 2, and Munna P.W. 5 and we have already furnished our reasons for finding their evidence to be credible we do not want to burden our judgment by reiterating the details in respect of manner of assault etc.

We wish to point out that both these witnesses are independent witnesses and nothing could be elicited from their cross-examination which could even show a semblance of animosity between them and the Appellants or their closeness to the informant and others. We may also mention that during cross-examination, their presence on the place of the incident and their claim of having seen the incident could not be discredited.

For the said reasons, in our view, the evidence of Raja Ram P.W. 6 and Har Prasad P.W. 10 also inspires confidence.

Assurance to the ocular account furnished by Baijnath Singh P.W. 1, Agnoo P.W. 2, Munna P.W. 5, Raja Ram P.W. 6 and Har Prasad P.W. 10 is also forthcoming by the circumstance that the F.I.R. of the incident was promptly lodged. We have seen that the incident took place on 17.6.1976 at 12.00 noon, and the F.I.R. was lodged on the said date itself, at 4.10 p.m. by the informant Baijnath Singh P.W. 1 at police station Umari Begumganj, district Gonda, which was situated at a distance of six miles from the place of the incident.

It is significant to mention that in this prompt F.I.R. the essential features of the prosecution case, including:

(a) the time of the incident ;

(b) the place of the incident ;

(c) the names of the Appellants ;

(d) the weapons wielded by the Appellants ;

(e) the names of the victims ;

(f) the names of the eye-witnesses ;

(g) the explanation of the injuries on the side of Appellants ; and (h) the motive for the incident ;

have all been mentioned.

In our view, this prompt F.I.R. of the incident goes a long way to establish the truthfulness of the prosecution version.

We now come to the evidence of Ram Khilawan P.W. 3. His evidence shows that at the time of the incident, he was living in village Koyalwar, where the incident took place. It is significant to mention that he did not depose about the assault on the victims but only stated that he saw Appellants Ashok Singh, Bhaddar Singh, Satrohan Singh and one other taking the corpse of Ram Asrey towards river Sarju and throwing it in the said river. His evidence also shows that he informed the Investigating Officer and pursuant to the information furnished by him, the corpse was recovered on 22.6.1976.

We have gone through the evidence of Ram Khilawan P.W. 3 and find no plausible reason for discarding it. It is significant to point out that since he was a resident of the village wherein the incident took place, he was a natural witness in respect of seeing Appellants Bhaddar Singh, Ashok Singh, Satrohan Singh and another taking the corpse of Ram Asrey. Secondly, his evidence that the said Appellants threw the corpse inside the Sarju river is corroborated by the evidence of Dr. Narendra Verma P.W. 4, who performed the autopsy on the corpse of Ram Asrey and found maggots and decomposition present. This corroborators his evidence that the corpse was laying in a river for couple of days.

It is significant to point out that although Ram Khilawan was extensively cross-examined but his presence on the place of the incident could not be discredited.

For the aforesaid reasons, we are inclined to accept the evidence of Ram Khilwan P.W. 3.

For the aforesaid reasons, in our view, prosecution has proved the guilt of Appellants, Jagdish Singh, Madho Singh, Satrohan Singh, Ram Moorat Singh, Lalta, Paras Singh, Ashok Singh, Udhav Singh and Bhaddar Singh beyond all shadow of doubt.

It has proved the guilt of first five, namely, Jagdish Singh, Madho Singh, Satrohan Singh, Ram Moorat Singh and Lalta because according to it, the said Appellants assaulted the victims with ballams and we have seen that the deceased Ram Asrey sustained seven penetrating injuries, which in the opinion of the autopsy surgeon Dr. Narendra Verma P.W. 4 were attributable to a ballam and the deceased Raghunath also sustained a penetrating injury which as per the evidence of autopsy surgeon Dr. Narendra Kumar Pandey P.W. 9 was also attributable to a ballam. The presence of eight ballam injuries between the two deceased persons squarely brings home their guilt.

Appellants Paras Singh and Ashok Singh were armed with farsas and we have seen that the deceased Raghunath Singh sustained two incised wounds and the injured Munna P.W. 5 also sustained two incised wounds. In our judgment the medical evidence also fixes their involvement in the crime.

Coming to the cases of Udhav Singh and Bhaddar Singh, we find that they along with the Appellants Brahma Singh, Bhagwan Datt Singh, Shivanand Singh and Suresh Singh are alleged to have assaulted the victims with lathis. It is true that in the instant case, the medical evidence only shows four typical blunt weapon injuries, which comprise of a contusion suffered by the deceased Raghunath Singh and two swellings and one contusion suffered by the victim Agnoo P.W. 2. It is also true that the medical evidence does not exclude the possibility of two persons armed with lathis being falsely implicated but in the instant case, so far as the Appellants Udhav Singh and Bhaddar Singh are concerned, though they were armed with lathis and their involvement, in our view, is fixed ; the involvement of the former because he received injuries in the incident which were examined on 21.6.1976 in Jail Hospital, Gonda by Dr. Kazi Anwar Ahmad P.W. 15, who found on his person two abrasions, one contusion and one lacerated wound, which as per his evidence were attributable to a blunt weapon and were four days old. Their age shows that they were suffered during the incident, which took place on 17.6.1976 at 12 noon.

So far as the latter (Bhaddar Singh) is concerned, it is true that he did not receive any injuries but since Ram Khilwan P.W. 3 has categorically stated that he saw him taking the corpse of Ram Asrey and throwing it in river Sarju, his participation in the incident would have to be accepted.

26A. We feel that Appellants Brahma Singh, Bhagwan Datt Singh, Shivanand Singh and Suresh Singh, who are said to have assaulted the victims with lathis, deserve the benefit of doubt because as we have seen that although including them six persons assaulted the victims with lathis, there were only four typical blunt weapon injuries attributable to lathi. In such a situation, in our judgment, the probability of at least two persons armed with lathies, being falsely implicated cannot be excluded and since prosecution has not been able to specify as to who those two persons were, all four of them would have to be acquitted.

In riot cases considerations of prudence demand that Courts should scan the evidence of eye-witnesses with caution and test it in the light of medical evidence. Having done so, we feel that said Appellants deserve the benefit of doubt.

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

He firstly contended that the defence version of the incident is equally probable, if not more than the prosecution version and the learned trial Judge erred in not accepting it. We are constrained to observe that we do not find any merit in it.

It is significant to point out that the defence has taken shifting stands in the instant case. In the counter F.I.R. (exhibit Ka-26) of the incident lodged by Changur Singh (father of Appellants Jagdish Singh, Udhav Singh, Madho Singh, Brahma Singh, Satrohan Singh, Ram Moorat Singh and Bhagwan Datt Singh) the averment is that Baijnath Singh P.W. 1, the deceased Raghunath Singh and 26 others, armed with ballam, pharsa and kanta came to his door and the incident took place there. On hearing his cries, Appellants Ashok Singh, Udhav Singh and Paras Singh came and in self-defence assaulted them.

However, this counter F.I.R. was disowned during trial and during cross-examination Baijnath Singh P.W. 1, Agnoo P.W. 2 and Munna P.W. 5 were suggested that Baijnath Singh and Raghunath Singh along with 30-35 persons armed with kantas, lathis, and ballams came to the madha of Appellant Jagdish Singh, where watermelons were stacked, and tried to forcibly take them and when Appellant Bhagwan Datt Singh resisted this endeavour of theirs, they assaulted him and when Appellants Ashok Singh, Paras Singh and Udhav Singh came to the rescue of Bhagwan Datt Singh they also assaulted them and thereupon people from village came who assaulted them.

In our view, this suggestion which saw the light of the day for the first time when Baijnath Singh, Agnoo and Munna were cross-examined and which has been denied by them, cannot be accepted. It is significant to mention that the Investigating Officer S.I. Ram Naresh Singh, who visited the place of the incident on the date of the incident itself and next morning and prepared the site plan, neither in his evidence nor in the site plan has made any mention of watermelons being stacked at the madha of Jagdish Singh.

In our view, it is the prosecution version which is in consonance with probabilities and not the defence suggestion given to Baijnath Singh, Agnoo and Munna. It is pertinent to mention that had it been true then Appellant Bhagwan Datt Singh would have got himself medically examined and Appellants Ashok Singh, Paras Singh and Udhav Singh would have sustained more substantial injuries.

It is significant to mention that right from the F.I.R., prosecution has explained the injuries suffered by Appellants Ashok Singh, Udhav Singh and Paras Singh. In our judgment, had the said persons been the victims of aggression, they would have sustained more substantial injuries got their injuries promptly examined and the same would not have been examined in jail four days later i.e., on 21.6.1976.

Mr. Nagendra Mohan secondly urged that the prosecution explanation right from the F.I.R. in respect of the injuries sustained by Appellants Udhav Singh, Paras Singh and Ashok Singh, which was that the side of the informant in the self-defence assaulted them with ballam, kanta and lathi, is unacceptable because the said persons only sustained blunt weapon injuries. We have reflected over the said submission. It may be that kanta and ballam blows may have missed them. It may equally be that the blunt portions of kanta and ballam may have struck them. In our judgment, since according to the prosecution right from F.I.R., there is an averment that the informant''s side also used lathi causing injuries to the said persons and the injury report of the said victims shows that they suffered blunt weapon injuries, the said submission merits rejection.

Mr. Nagendra Mohan thirdly urged that the evidence of the eye-witnesses shows that the informant Baijnath Singh and others were armed with lathi, ballam, kanta and pharsa, apart from possessing kudals. He contended that this is incompatible with the prosecution case, which was that while Baijnath Singh and Raghunath Singh along with Agnoo, Munna and Ram Asrey were returning from village Kaithi, where they had gone to get their field ploughed and sow paddy the incident took place. He urged that lathi, pharsa and ballam are certainly not required for the purposes of ploughing or sowing paddy. He contended that the circumstances that they were armed with lathi, ballam and pharsa shows that the defence suggestion that they forcibly went to take away the watermelons, which were stacked at the madha of Appellant Jagdish Singh and the incident took place there is correct.

We have reflected over the said contention and on the first blush, found it to be attractive, but on a deeper scrutiny, realised that it was devoid of merits. In our view, the reason for Raghunath Singh and Baijnath Singh, being armed was that there was enmity between them on one hand and the Appellant Jagdish Singh and six others, who were his brothers, on the other. If in view of the said enmity, they felt that the probability of their being attacked by Jagdish Singh and others could not be excluded and, therefore, with a view to defend themselves in such a contingency, went armed, there is nothing unnatural. In this connection, we would like to advert to the cross-examination of Agnoo P.W. 2, who has stated therein that Raghunath Singh was armed with a ballam and Baijnath Singh with a lathi because they had enmity with Appellant Jagdish Singh.

For the said reasons, in view, this submission fails.

Mr. Nagendra Mohan fourthly urged that the evidence of informant Baijnath Singh shows that while they were on the way from the field to the house, the incident took place. He contended that Baijnath Singh''s and Raghunath Singh''s evidence shows that while they were on their way to catch a boat for crossing river Sarju (on the way home), they passed from the front of madha of Jagdish Singh, the incident took place. In this connection, he invited our attention to the cross-examination of Baijnath Singh, and to para 12 of his statement where, he stated that on the way to river (where they had to catch boat), the place of the incident would not fall. Mr. Nagendra Mohan contended that this shows that Baijnath Singh and others had gone with a deliberate design to take away the watermelons, which were stacked at the madha of Appellant Jagdish Singh, as suggested to the eye-witnesses.

We have given our anxious consideration to the said submission and are not inclined to accept it. In our judgment, some times persons take a route, other than the usual for no reasons or rhyme. It may be that those accompanying Baijnath Singh asked him to take that route. In our judgment, merely on the above circumstance the prosecution case, which is supported by the evidence of two injured witnesses, does not become false.

Mr. Nagendra Mohan lastly urged that since six of the Appellants, namely, Udhav Singh, Brahma Singh, Bhagwan Datt Singh, Shivanand Singh, Suresh Singh and Bhaddar Singh assaulted the deceased persons and the two injured with lathis and only a solitary contusion was found on the person of deceased Raghunath Singh and three blunt weapon injuries were found on the person of the injured Agnoo, this is a case wherein some persons armed with lathis have been falsely implicated and since prosecution has not been able to specify the said persons, all the aforesaid persons be acquitted. We have already dealt with this aspect in para 27A and reached the conclusion that Brahma Singh, Bhagwan Datt Singh, Shivanand Singh and Suresh Singh deserve the benefit of doubt.

For the aforesaid reasons, we are of the judgment that the prosecution has established the guilt of Appellants Jagdish Singh, Udhav Singh, Madho Singh, Satrohan Singh, Ram Moorat Singh, Paras Singh, Ashok Singh, Bhaddar Singh and Lalta beyond reasonable doubt, but Appellants Brahma Singh, Bhagwan Datt Singh, Shivanand Singh and Suresh Singh deserve the benefit of doubt.

In the result, this appeal is partly allowed.

We acquit Appellants Brahma Singh, Bhagwan Datt Singh, Shivanand Singh and Suresh Singh on all the counts i.e., under Sections 302/149, I.P.C., 307/149, I.P.C. and 147, I.P.C. and set aside their sentence of life imprisonment, three years'' R.I. and one year''s R.I. respectively thereunder. They are on bail. They need not surrender. Their bail bonds shall stand cancelled and sureties discharged.

We confirm the convictions and sentences of Appellants Jagdish Singh, Udhav Singh, Madho Singh, Satrohan Singh, Ram Moorat Singh, Paras Singh, Ashok Singh, Bhaddar Singh and Lalta for the offences punishable under Sections 302/149, I.P.C. and 307/149, I.P.C. and maintain their sentences of imprisonment for life and three years R.I. respectively thereunder.

We further maintain the convictions of Appellants Ashok Singh, Jagdish Singh, Satrohan Singh, Madho Singh, Paras Singh, Lalta and Ram Moorat Singh for the offence punishable u/s 148, I.P.C. and the sentence of two years R.I. thereunder.

We further maintain the conviction of Appellants Udhav Singh and Bhaddar Singh for the offence punishable u/s 147, I.P.C. and the sentence of one year''s R.I. thereunder.

We also maintain the conviction of Appellants Ashok Singh, Satrohan Singh, Lalta and Bhaddar Singh for the offence punishable u/s 201, I.P.C. and the sentence of three years R.I. thereunder.

Appellants Jagdish Singh, Udhav Singh, Madho Singh, Satrohan Singh, Ram Moorat Singh, Paras Singh, Ashok Singh, Bhaddar Singh and Lalta are on bail. They shall be taken into custody forthwith to serve out their sentences.