Narain and Others (in Jail) vs State of U.P.

U.S. Tripathi, J.—This appeal has been directed against the judgment and order dated 23.1.1980 passed by 8th Additional Sessions Judge, Bareilly in S.T. No. 26 of 1978 convicting the Appellants Narain Singh under Sections 302 and 307 read with Section 34, I.P.C. and sentencing him to undergo imprisonment for life and R.I. for a period of three years respectively on each count, while convicting the Appellants Pothi Ram, Ram Murti and Gokaran u/s 302 read with 34 and Section 307 read with 34, I.P.C. and sentencing each of them to undergo imprisonment for life and R.I. for a period of three years respectively on each count.

The prosecution story, briefly stated, was as under:

All the Appellants, Prem Pal Singh deceased and Rajendra Singh (P.W. 1) were residents of village Kanja Chakarpur, P.S. Bhuta, district Bareilly. Prem Pal Singh deceased and his brother Rajendra Singh (P.W. 1) had purchased house and land of Toti and Ati Ram Singh situated towards west of their residential house through a registered sale deed dated 15.2.1977. Appellant Narain Singh who was Pradhan of the village also wanted to purchase the above land. On account of purchasing the above land by Prem Pal Singh and Rajendra Singh (P.W. 1), he was bearing enmity with them and had threatened them time and again to leave the above land in his favour.

2.1. On the morning of 28.3.1977 at about 10.00 a.m. Prem Pal Singh deceased and Rajendra Singh (P.W. 1) were sitting on roof of their house along with Raghubir (P.W. 2) uncle-in-law of Rajendra Singh (P.W. 1). In the meantime, Appellants Pothi Ram armed with lathi and Appellants Narain, Ram Murti and Gokaran armed with guns came on the kachcha road situated towards east of the house of Prem Pal Singh. Narain Singh told Prem Pal Singh deceased that he would teach him a lesson for purchasing the house. Hearing it, Prem Pal Singh deceased stood up on the roof and started observing the Appellants. Appellant Pothi Ram exhorted the other Appellants to kill Prem Pal Singh. On his exhortation, Prem Pal Singh started running towards room on the first floor. In the meantime, Narain Singh fired from his gun on Prem Pal Singh, which hit on his back near buttock, due to which he fell down on the roof. Rajendra Singh (P.W. 1) and Raghubir Singh (P.W. 2) ran towards northern room. Thereafter, Appellants Gokaran and Ram Murti also fired from their respective guns, the pellet of which hit Raghubir Singh (P.W. 2) on his left index finger. In the meantime Pyare Lal (P.W. 3) and Ram Pal also came to the spot who challenged the Appellants and they ran away towards north.

2.2. Rajendra Singh (P.W. 1) and Raghubir Singh (P.W. 2) were taking Prem Pal Singh to P.S. Fareedpur in a bullock cart. In the way Prem Pal Singh died. Taking dead body of Prem Pal Singh deceased, Rajendra Singh (P.W. 1) and Raghubir Singh (P.W. 2) came to P.S. Fareedpur where Rajendra Singh (P.W. 1) lodged oral report at 1.45 p.m. Chik F.I.R. (Ext. Ka-2) was prepared by Head Constable Chatursen who made an endorsement of the same at G.D. report (Ext. Ka-9) and registered a case under Sections 302 and 307, I.P.C. read with Section 34, I.P.C. against the Appellants.

2.3. Since the case related to P.S. Bhoota papers were sent to the said police station.

2.4. Raghubir Singh (P.W. 2) was medically examined on 28.3.1977 at 2.45 p.m. by Dr. Y. K. Shukla (P.W. 7) at Primary Health Centre, Fareedpur. Inquest of the dead body of the Prem Pal deceased was conducted on 28.3.1977 by S.I. Veer Pal Singh (P.W. 5) at P.S. Fareedpur who prepared inquest report (Ext. Ka-4) and other relevant papers.

2.5. The papers of the case were received at P.S. Bhoota on 28.3.1977. Investigation of the case was taken by Sri Bhagwant Singh, Investigating Officer (P.W. 8). He interrogated Ram Pal Singh (P.W. 3) on 29.3.1977, inspected place of occurrence and prepared site plan (Ext. Ka-12). He also took into possession blood stained and simple earth from the spot.

2.6. Autopsy on the dead body of the deceased was conducted on 29.3.1977 by Dr. J. C. Deo Nath (P.W. 4), who found one gun shot wound of entry on left buttock along with a gun shot wound of exit on left iliac fossa and cause of death due to shock and haemorrhage. He prepared post-mortem report (Ext. Ka-3).

2.7. Remaining investigation was conducted by Sri B. D. Sharma (P.W. 6) who interrogated Raghubir Singh (P.W. 2) on 17.5.1977 and on completion of investigation submitted charge-sheet against the Appellants.

2.8. Cognizance of the case was taken by the Magistrate, who committed the case to the Court of Sessions.

2.9. The Appellant Narain Singh was charged with the offences punishable under Sections 302, I.P.C. similicitor and 307, I.P.C. read with 34, I.P.C. while other Appellants were charged with the offence punishable u/s 302, I.P.C. read with Section 34, I.P.C. and 307, I.P.C. read with Section 34, I.P.C.

2.10. Appellant Narain pleaded not guilty and contended that he had contested election of Gram Pradhan against Jangi Singh who was defeated. Jangi Singh had granted patta of Gram Samaj land in favour of Shiv Sahai, father of deceased and Rajendra Singh (P.W. 1). He got the above patta cancelled. On account of it Shiv Sahai and his family members were having grudge against him. He had three houses in the village and had no occasion to purchase any other house. Appellant Pothi Ram contended that since he was Bhanja (Sister''s son) of Narain Singh, he was falsely implicated. Appellants Ram Murti and Gokaran contended that his uncle Ram Prasad had given evidence against Shiv Sahai father of Rajendra Singh (P.W. 1) and therefore, he was falsely implicated.

The prosecution in support of its case examined Rajendra Singh (P.W. 1), Raghubir Singh (P.W. 2), Pyare Lal (P.W. 3), as witnesses of facts, besides Dr. J. C. Deo Nath (P.W. 4), S.I. Veer Pal Singh (P.W. 5), S.I. B. D. Sharma (P.W. 6), Dr. Y. K. Shukla (P.W. 7) and S.I. Bhagwant Singh (P.W. 8).

The Appellants did not adduce any evidence in their defence.

The learned Sessions Judge on considering the evidence of the prosecution held that the prosecution succeeded in proving its case beyond all reasonable doubts against the Appellants. With these findings he convicted and sentenced the Appellants as mentioned above.

Aggrieved with their above conviction and sentence the Appellants have come up in this appeal before this Court.

We have heard Sri P. N. Misra, senior advocate for the Appellants and learned A.G.A. for the Respondent and have perused entire evidence on record.

Appellant Pothi Ram was murdered during the pendency of the appeal. A report was obtained from C.J.M., Bareilly in this regard who submitted his report dated 1.3.1996 mentioning that according to report of P.S. Bhoota Appellant Pothi Ram was murdered on 16.3.1989 and a case at Crime No. 40 of 1989, u/s 302, I.P.C. was registered in this regard at P.S. Bhoota. Therefore, the appeal preferred by the Appellant Pothi Ram stood abated.

Rajendra Singh (P.W. 1), the real brother of deceased Prem Pal stated that his double storied house was situated in the eastern side of village abadi towards west abutting Beesal Pur road. The first floor of his house consisted of six rooms four facing towards east and two facing north and south respectively. There was open roof in front of above rooms. Towards west of his house, there was house of Toti and Ati Ram Singh, which he and Prem Pal purchased through a registered sale deed (Ext. Ka-1) prior to 20 days of the occurrence of this case. On the date of the occurrence at about 10.00 a.m., he along with Prem Pal Singh and Raghubir (P.W. 2), his uncle-in-law were sitting on the roof of first floor of his house. Appellant Narain Singh, Pothi Ram, Ram Murti and Gokaran came on the rasta in front of the house. Pothi Ram was having lathi and remaining Appellants were having guns. Appellant Narain Singh told Prem Pal Singh deceased that he would teach him a lesson of purchasing the house. Hearing it, Prem Pal Singh stood on the roof and saw downward where the Appellant were standing. Appellant Pothi Ram exhorted the other Appellants to kill him. On it Prem Pal Singh started running towards room facing towards east. On the exhortation of the Appellant Pothi Ram, Narain Singh fired on Prem Pal Singh, which hit on his back near buttock due to which he fell down on the roof. Rajendra Singh (P.W. 1) and Raghubir Singh (P.W. 2) started running towards room but in the meantime Gokaran and Ram Murti Appellants fired on them due to which Raghubir Singh (P.W. 2) sustained pellet injury on his index finger. Ram Pal Singh and Pyare Lal (P.W. 3) also came to the spot who challenged the Appellants and they ran away. Rajendra Singh (P.W. 1) and Raghubir Singh (P.W. 2) put Prem Pal Singh in a bullock cart and proceeded to Fareedpur but Prem Pal Singh died in the way. Taking the dead body of Prem Pal Singh deceased Rajendra Singh (P.W. 1) came to Fareedpur Hospital and leaving the dead body in the hospital he came to police station Fareedpur where he lodged oral report (Ext. Ka-2). Raghubir Singh (P.W. 2) was medically examined at Fareedpur hospital. There were pellet marks on the wall of the room.

Raghubir Singh (P.W. 2) stated that Rajendra Singh (P.W. 1) was his nephew-in-law. He often came to village Kanja Chakarpur as he had his relation there. He was knowing Narain Singh, Pothi Ram, Ram Murti and Gokaran Appellants from before. A day before the occurrence, he had come to village Kanja to leave his niece (wife of Rajendra Singh, P.W. 1). On the date of occurrence at about 10.00 a.m. he was sitting on the roof of the house of Rajendra Singh (P.W. 1). Rajendra Singh (P.W. 1) and Prem Pal Singh deceased were also sitting there. The Appellants came on northern side of the house. Appellant Pothi Ram was having lathi and remaining Appellants were having guns. Narain Singh told Prem Pal Singh deceased and Rajendra Singh (P.W. 1) that he would teach a lesson for purchasing the house. Saying it Narain Singh raised his gun. Observing it he, Rajendra Singh (P.W. 1) and Prem Pal Singh stood up on the roof. Appellant Pothi Ram exhorted Narain Singh to kill and on his exhortation Prem Pal Singh rushed towards room but before he could enter into the room Narain Singh fired from his gun. The pellet of it hit on his back and he fell down. He and Rajendra Singh (P.W. 1) ran towards northern room but in the meantime Ram Murti and Gokaran fired from their respective guns due to which he sustained injury on his left index finger. Ram Pal Singh and Pyare Lal (P.W. 3) came to the spot. On their challenge the Appellants ran away. Prem Pal Singh was alive. He was seated on a bullock cart and he along with Rajendra Singh (P.W. 1), Balveer Singh and two other villagers proceeded to Fareedpur hospital. Prem Pal Singh died in the way. They took his dead body to Fareedpur and leaving the dead body at the hospital Rajendra Singh (P.W. 1) lodged a report at the police station.

Pyare Lal (P.W. 3) resident of village Singipur, P.S. Beesalpur, district Pilibhit stated that his sister was married at village Sorada, P.S. Beesalpur (district Pilibhit). He used to go to village Sorada via Fareedpur. Village Kanja was situate in the way to village Sorada. He was knowing Narain Singh, Pothi Ram, Gokaran and Ram Pal and two to four other persons of village Kanja. On the date of occurrence he was going to his sister''s house from Fareedpur. In the way Ram Pal Singh met him and he stayed for half an hour at his house at village Kanja and thereafter, proceeded to house of his sister. Ram Pal Singh was going to see him off. At about 10.00 a.m. he and Ram Pal Singh reached in front of the house of Rajendra Singh (P.W. 1) on the road where he saw that Pothi Ram having lathi and other three Appellants having guns were standing towards north of road. The Appellants exhorted the inmates of house situate towards west. After the occurrence he came to know that said house belonged to Rajendra Singh (P.W. 1). Narain Singh Appellant told that he would teach a lesson for purchasing the house. Appellant Pothi Ram exhorted to kill him. On it Narain Singh fired first shot and thereafter, Ram Murti and Gokaran Appellants fired from their respective guns. He subsequently, came to know that first fire of Narain Singh hit Prem Pal Singh. He and Ram Pal challenged the Appellants and they ran away. Thereafter, several persons of the village assembled and he went to the house of Rajendra Singh (P.W. 1) and thereafter on his roof. He saw that Prem Pal Singh was lying injured on his roof. Raghubir Singh (P.W. 2) was also injured. He stayed in the village for about 2-3 hours. After half an hour of the occurrence taking Prem Pal Singh in a bullock cart Raghubir Singh (P.W. 2) and Rajendra Singh (P.W. 1) went to lodge report.

Dr. J. C. Deo Nath (P.W. 4) stated that on 23.9.1977 he conducted autopsy on the dead body of Prem Pal Singh deceased at District Hospital, Bareilly and found following ante-mortem injuries on his person:

(1) Gun shot wound of entrance 2 cm. x 2 cm. x cavity deep. Margins lacerated and inverted circular in shape on the left buttock inner part middle just left to the mid line. No tattooing and blackening present around the wound.

(2) Gun shot wound of exit 2-1/2 x 2-1/2 cm. x pelvic cavity deep with margins lacerated and everted almost circular in shape of the middle of right iliac fossa.

On further exploring of the wounds both wounds were found to be inter connected and large intestine found to be lacerated and damaged in descending colon and left iliac vessels damaged. The internal examination showed that left pelvic vessels were lacerated and torn. Peritoneum was torn and lacerated in the left pelvic area. Peritoneum cavity contained 500 mls. of fluid blood. Large intestine contained faecals and gases and lacerated in the descending colon middle part.

The cause of death was due to shock and haemorrhage as a result of gunshot wound. He also proved post-mortem report (Ext. Ka-3).

Dr. Y. K. Shukla (P.W. 7) stated that on 28.3.1977 he examined injury of Raghubir at 3.50 p.m. at Primary Health Centre, Fareedpur and found following injury on his person:

Gun shot wound of entry .5 cm. x 3 cm. x 3 cm. on the left index finger outer side, the 2nd phalynx (left) margins inverted. No tattooing or blackening or singeing seen. Injury was caused by discharge of firearm and was fresh in duration. He also proved injury report (Ext. Ka-11).

Veer Pal Singh (P.W. 5) stated that on 28.3.1977 he was posted as S.I. at P.S. Fareedpur and at 2.10 p.m. on said date he conducted inquest of the dead body of Prem Pal Singh deceased at Fareedpur Hospital and prepared inquest report (Ext. Ka-4) and other relevant papers. He sealed the dead body and sent the same for post-mortem. He further stated that chik F.I.R. of the case was prepared in his presence at the police station.

Sri Bhagwant Singh (P.W. 8), the first Investigating Officer, stated that papers of the case were received at P.S. Bhoota on 29.3.1977 and he took up investigation of the case. On 29.3.1977, he interrogated Ram Pal Singh, inspected place of occurrence and prepared site plan (Ext. Ka-12). He also took into possession blood stained and simple earth from the spot. He also found pellet marks on the eastern wall. Sri B. D. Sharma (P.W. 6), the second Investigating Officer stated that he took up investigation on 31.3.1977 and interrogated Rajendra Singh (P.W. 1) and Pyare Lal (P.W. 3). On 17.5.1977 he interrogated Raghubir Singh (P.W. 2) and on completion of investigation submitted charge-sheet (Ext. Ka-8) against the Appellants.

We have given the above gist of the prosecution evidence.

The death and cause of death of Prem Pal Singh deceased is not disputed. The medical evidence of Dr. J. C. Deo Nath (P.W. 4) referred to above established that Prem Pal Singh had sustained a gunshot wound of entry on the left buttock resulting into a gunshot wound of exit and Prem Pal Singh deceased died on account of above injury.

The prosecution alleged that occurrence of the case took place on 28.3.1977 at about 10.00 a.m. on the roof of the deceased in village Kanja Chakarpur, P.S. Bhoota. The Appellants have not disputed the date of occurrence, but according to their contention Prem Pal Singh was done to death at some other place in the night and his dead body was subsequently brought on his roof. Rajendra Singh (P.W. 1) and Raghubir Singh (P.W. 2) stated that occurrence took place on 28.3.1977 at about 10.00 a.m. on the roof of the house of the deceased. Rajendra Singh (P.W. 1), Raghubir Singh (P.W. 2) and Pyare Lal (P.W. 3) further stated that after the occurrence, Prem Pal Singh was alive and he was being taken to Fareedpur Hospital, but died in the way when they crossed village abadi and, therefore, dead body of Prem Pal Singh deceased was brought to Fareedpur Hospital and thereafter, Rajendra Singh (P.W. 1) came to police station Fareedpur and lodged report at 1.45 p.m. The above witnesses have denied their suggestion of the Appellants that occurrence had not taken place at the said place and Prem Pal Singh was murdered in darkness at some other place. The Investigating Officer visited the spot on the next day and found blood on the roof of the deceased. There is nothing in the cross-examination of the Investigating Officer to show that he planted blood stains at the place of occurrence. The injuries of Raghubir Singh (P.W. 2) were examined on the date of occurrence at 2.45 p.m. by Dr. Y. K. Shukla (P.W. 7) who stated that above injury was fresh. Except bald suggestion from the side of the Appellants there is nothing in evidence on record to show that occurrence had taken place at some other place in darkness of night. Therefore, from the evidence on record the date, time and place of occurrence has been established.

The motive of the offence alleged by the prosecution was that Prem Pal Singh deceased and his brother Rajendra Singh (P.W. 1) had purchased house of Toti and Ati Ram Singh situated towards west of their residential house 20 days before the occurrence of this case. Narain Singh Appellant, Pradhan of the village also wanted to purchase the said land and house and since it was purchased by Prem Pal Singh deceased and Rajendra Singh (P.W. 1), he started bearing grudge against them.

The learned Counsel for the Appellants contended that there is no documentary or other evidence to prove that Narain Singh Appellant also wanted to purchase the said land. That Narain Singh Appellant has refuted this fact in his statement u/s 313, Cr. P.C. and there is no evidence on record to prove it. The prosecution has filed the original sale deed (Ext. Ka-1) dated 15.2.1977 executed by Toti and Ati Ram Singh in favour of Prem Pal Singh deceased, Rajendra Singh (P.W. 1), Karan Singh, Krishna Pal Singh and Ahibaran Singh all sons of Shiv Sahai resident of Kanja Chakarpur. Rajendra Singh (P.W. 1) has also stated that Prem Pal Singh was eldest amongst his brothers and he was looking after the properties. No doubt Rajendra Singh (P.W. 1) stated that after purchasing the house, Narain Singh Appellant twice threatened him and Prem Pal Singh deceased to leave the above land, but no report was lodged regarding above threatening. But non-lodging of the report does not mitigate the above evidence of Rajendra Singh (P.W. 1) as the villagers do not lodge report regarding threats. The occurrence had taken place on 28.3.1977 after about one and half month of the purchasing of the land. This fact coupled with previous threats by Narain Singh indicates that Narain Singh was annoyed with Prem Pal Singh regarding purchase of above land. Assuming that the prosecution had set up the above motive to link with the murder of Prem Pal Singh deceased, in this case the prosecution had relied on testimony of eye-witnesses and, therefore, the absence of motive is not very much material.

Regarding manner of the occurrence and complicity of Appellants, prosecution has relied on ocular testimony of Rajendra Singh (P.W. 1), Raghubir Singh (P.W. 2) and Pyare Lal (P.W. 3). Rajendra Singh (P.W. 1) is real brother of the deceased. According to his evidence, he was present along with deceased and Raghubir Singh (P.W. 2) on the roof at the time of occurrence. He further stated that his other brothers were on the ground floor of the house. The occurrence had taken place on the roof of the house of witness and, therefore, his presence on the spot cannot be doubted. No doubt Rajendra Singh (P.W. 1) had not sustained any injury but on account of it, his testimony cannot be discarded because his presence on the spot was most natural. The witness had also taken dead body of the deceased to Fareedpur Hospital and had lodged oral report at the P.S. Fareedpur on the date of occurrence at 1.45 p.m. Lodging of the report by the witness again supported his presence on the spot.

The learned Counsel for the Appellants contended that Rajendra Singh (P.W. 1) was inimical witness as Narain Singh had contested election of Pradhan against Jangi Singh Ex-Gram Pradhan who belonged to the family of the witness and was defeated. That Jangi Singh while he was Pradhan had granted lease (Patta) of some land in favour of Shiv Sahai father of Rajendra Singh (P.W. 1) and subsequently, when Narain Singh became Pradhan he got the above lease (Patta) cancelled and on account of it, Rajendra Singh (P.W. 1) was inimical. The copy of order of Sub-Divisional Officer, Fareedpur dated 30.4.1975 in Case No. 9/73-74 u/s 198, Zamindari Abolition and Land Reforms Act, Narain Singh v. Shiv Sahai Case No. 9/73-74andcopy of order dated 27.6.1977 passed by the Additional Commissioner, Bareilly in Revision No. 59/52 of 1975 u/s 198, Zamindari Abolition and Land Reforms Act were also filed in support of it. The above documents no doubt proved that on the report of Narain Singh patta in favour of Shiv Sahai, father of Rajendra Singh (P.W. 1) was cancelled and it further shows that there was enmity between Rajendra Singh (P.W. 1) and Narain Singh Appellant. The enmity is a double edged weapon and it may be cause of murder of Prem Pal Singh as well as ground for false implication. No doubt Rajendra Singh (P.W. 1) had show his ignorance about above cancellation of patta but assuming that there was enmity between the parties on account of cancellation of patta, testimony of Rajendra Singh (P.W. 1) cannot be discarded simply on this ground. Rajendra Singh (P.W. 1) has tested the test of lengthy cross-examination and there is nothing in his cross-examination to show that he was falsely stating on account of enmity.

Raghubir Singh (P.W. 2) is no doubt resident of village Adarpura Nagala, P.S. Beesalpur, district Pilibhit, but undisputedly, he is uncle-in-law of Rajendra Singh (P.W. 1) and has stated that he had come to house of Rajendra Singh (P.W. 1) a day before the occurrence to leave his niece, the wife of Rajendra Singh (P.W. 1). The witness had also sustained injury on his left index finger. It was proved by medical evidence of Dr. Y. K. Shukla (P.W. 7). The witness had also accompanied the deceased to Fareedpur hospital where he was medically examined. His presence is also noted in the G.D. report (Ext. Ka-9 and 10) of P.S. Fareedpur at 1.45 p.m. on the date of occurrence. Had the witnesses not been present on the spot at the time of occurrence, he could not reach Fareedpur at 1.45 p.m.

The learned Counsel for the Appellants contended that injury of Raghubir Singh (P.W. 2) was manufactured as Dr. Y. K. Shukla (P.W. 7) admitted that the injury of Raghubir Singh (P.W. 2) was superficial and it could also be manufactured by piercing a spoke. No doubt Dr. Shukla has stated about possibility of manufacturing the above injury by piercing a spoke, but it was suggested to Rajendra Singh (P.W. 1) that Raghubir Singh (P.W. 2) was a criminal and he often resided at his house and was indulging in criminal activities along with Prem Pal Singh deceased. This suggestion suggests that the Appellant themselves admitted presence of Raghubir Singh (P.W. 2) at the house of Prem Pal Singh deceased on the date of occurrence. Prompt lodging of F.I.R. rules out possibility of manufacturing of injury of Raghubir Singh (P.W. 2) in such a short time. The evidence referred to above supported the presence of Raghubir Singh (P.W. 2).

Pyre Lal (P.W. 3) is no doubt a chance witness and it was a chance that he reached the spot. He was also not well-acquainted with Prem Pal Singh deceased and Rajendra Singh (P.W. 1). Though, according to his evidence he used to pass through village Kanja Chakarpur while going to house of his sister and stated that he knew the Appellants. But considering the distance of his house from the village of occurrence and the manner in which he reached the spot, we find that presence of Pyare Lal (P.W. 3) on the spot is doubtful. Even if we ignore the evidence of Pyare Lal (P.W. 3) the case of the prosecution is proved from ocular testimony of Rajendra Singh (P.W. 1) and Raghubir Singh (P.W. 2).

The learned Counsel for the Appellants contended that the evidence of Rajendra Singh (P.W. 1) and Raghubir Singh (P.W. 2) is in total conflict with the medical evidence, which belied their testimony. He pointed out that according to medical evidence of Dr. J. C. Deo Nath (P.W. 4) gunshot wound on the back of Prem Pal Singh had no tattooing blackening or singeing and Injury No. 1 was wound of entry coupled with wound of exit. He further contended that according to ocular evidence above injury was caused by shot fired from a gun, but above injury does not appear a pellet injury as admittedly it was fired from a distance which is proved from the absence of blackening, tattooing and singeing. If injury was caused from distance there would have been dispersal of pellets and therefore, pellets after dispersal would not cause such injury. He further contended that the injury appeared to have been caused by bullet but it is not the case of the prosecution that the Appellant Narain Singh, who caused the above injury was having rifle. Rajendra Singh (P.W. 1) and Raghubir Singh (P.W. 2) stated that Appellant Narain Singh was having gun. Rajendra Singh (P.W. 1) further stated that Appellant Narain Singh was not having a licence of gun. There is nothing on record to show that the gun possessed by the Appellant Narain Singh was factory made gun and factory made cartridges were used in it. The nature of injury caused by gun depends on the nature of cartridge used. There are also instances where hand made cartridge are used and in case big pellet or pointed object is used in making hand made cartridge it may cause the injury in the nature suffered by Prem Pal Singh deceased. The nature and size of gun possessed by Appellant Narain Singh could not be got explained from the witnesses and therefore, applying the standard of factory made gun and cartridge it cannot be said that injury of Prem Pal deceased was not a gun shot wound. Moreover, no such clarification was sought from Dr. J. C. Deo Nath (P.W. 4) that injury of Prem Pal Singh deceased could not be caused from a gun as alleged by the prosecution.

It was further contended that according to evidence of Dr. J. C. Deo Nath (P.W. 4), injury of Prem Pal Singh deceased was caused while the shooter and the victim were on the same level, but the ocular evidence shows that Prem Pal Singh deceased (victim) was on the roof and the shooter fired from gun from rasta and, therefore, shooter and victim were not on the same level. That the injury of Prem Pal Singh deceased could not be caused in the manner alleged by the prosecution. Having scrutinized the evidence of the ocular witnesses and that of Dr. J. C. Deo Nath (P.W. 4), we find no force in the above contention. Dr. J. C. Deo Nath (P.W. 4) categorically stated that considering the position of the injury, the shot was fired from the back of the deceased at an angle of 60 degree. This shows that at the time of firing, the barrel of gun was tilted at an angle of 60 degree. The shooter was standing on the ground and the victim was standing on roof. If the barrel of the gun was tilted at 60 degree angle, the injury could be caused on the back of victim near the buttock. Thus, the injury was caused keeping the barrel at the angle of 60 degree and it was not correct to say that shooter and victim were on same level because in that position the shot would have gone above the head of the victim. The statement of Dr. Nath, thus, corroborates the prosecution case that shooter was on lower level than the victim and the injury was caused keeping the barrel of the gun at an angle of 60 degree.

Therefore, we find no conflict between the ocular evidence and the medical evidence.

The learned Counsel for the Appellants further contended that the nature and seat of injury shows that case falls u/s 304, I.P.C. only and not beyond it. We find no force in this contention as the single shot fired with the intention and knowledge that it would in all probabilities cause the death of victim makes out the case u/s 302, I.P.C.

The nature and seat of the injury coupled with the manner and the circumstances in which it was caused clearly indicate that the shooter caused the above injury on Prem Pal Singh deceased with the intention and knowledge that in all probabilities it would cause the death of the deceased. Dr. J. C. Deo Nath (P.W. 4), has also stated that injury on the person of the deceased was sufficient in ordinary course of nature to cause his death and, therefore, the offence falls u/s 302, I.P.C.

From the evidence on record, we find that the prosecution has successfully proved the guilt of the Appellant Narain Singh for the offence punishable u/s 302, I.P.C.

Regarding Appellant Ram Murti and Gokaran, it is alleged that they also shared common intention. The prosecution could not establish any relationship of Appellant Ram Murti with that of Appellant Narain Singh deceased. Regarding Appellant Gokaran, it was alleged that he was residing at the house of Narain Singh. No motive has been alleged against Ram Murti and Gokaran Appellants. The role assigned to them was that they fired subsequently which hit only Raghubir Singh (P.W. 2) and they had not caused any injury to the deceased. Considering the above facts and circumstances and by way of abundant caution, we find that Appellants Ram Murti and Gokaran are entitled to benefit of doubt.

We also find that the offence punishable u/s 307 read with Section 34, I.P.C. against the Appellant Narain Singh is also not established.

Thus, we find that conviction of Appellants Ram Murti and Gokaran u/s 302 read with 34 and Section 307 read with 34, I.P.C. and that of Appellant Narain Singh u/s 307 read with Section 34, I.P.C. cannot be sustained.

The appeal is partly allowed. Conviction and sentence of Appellants Ram Murti and Gokaran u/s 302 read with Section 34 and Section 307 read with Section 34, I.P.C. are set aside and they are acquitted of the said offences. They are on bail. Their bail bonds are cancelled and sureties are discharged. They need not surrender.

The conviction and sentence of Appellant Narain Singh u/s 307 read with Section 34, I.P.C. is also set aside. However, the conviction and sentence of Appellant Narain Singh u/s 302, I.P.C. simplicitor and imprisonment for life awarded by the trial court are confirmed. The appeal preferred by Appellant Narain Singh regarding his conviction and sentence u/s 302, I.P.C. is thus, dismissed. The appeal preferred by Appellant Pothi Ram has already abated.

Appellant Narain Singh is on bail. He shall surrender before the C.J.M. concerned to serve out the sentence. The C.J.M. concerned is directed to issue non-bailable warrant against the Appellant Narain Singh to procure his arrest and sending him in jail.

The office is directed to send a copy of this order to C.J.M., Bareilly for compliance and report within a month.