Raj Kumar and Others vs State of U.P

S.N.H. Zaidi, J.—This criminal appeal has been referred to me as a third Judge as their Lordships (Hon''ble Justice Khem Karan and Justice P.K. Chatterjee) of the Division Bench differed in their opinion vide their judgments delivered separately on 28.7.2004.

The appeal has been directed against the judgment and order dated 27.12.1980 passed in Sessions Trial No. 286 of 1997 by Shri R.D. Shukla, 4th Additional Sessions Judge, Barabanki, convicting and sentencing accused Appellants

(a) Raj Kumar to life imprisonment u/s 302 I.P.C. for committing the murder of Badri, to two years'' R.I. u/s 324 I.P.C. for voluntarily causing simple hurt to Balraj by firearms and to 18 months'' R.I. under Sections 148 I.P.C. for committing rioting with firearm,

(b) Ram Pal Singh to life imprisonment u/s 302 I.P.C. for committing the murder of Baladin and to 18 months'' R.I. u/s 148 I.P.C. for committing rioting with fire-arm,

(c) Faqirey to four years'' R.I. u/s 307 I.P.C. for attempting to commit murder of Bhulai and to 18 months'' R.I. u/s 148 I.P.C. for committing rioting with country-made pistol, and

(d) Gaya Prasad, Mathura Prasad, Shesh Narain, Rakesh, Vinod, Tej Narain, Babu Singh, Jagdamba and Kamlesh to six months'' R.I. u/s 147 I.P.C. for committing rioting and to one year''s R.I. u/s 323 read with Section 149 I.P.C. for voluntarily causing simple hurt to Bhulai, Putti Lal and Jagjivan,

with the direction that the sentences shall run concurrently.

Appellants Babu Singh, Jagdamba Singh, Mathura, Gaya Prasad and Faqirey died during the pendency of the appeal. Since none of their legal representatives has come forward for substitution, hence the appeal of the above named Appellants abates.

The case of the prosecution, in brief, is that there was a caste rivalry in village Dhakuwa, Hamlet of Kamoli, Police Station-Tikait Nagar, District-Barabanki between the Appellants, who belong to Thakur and Brahman communities and complainant Bhulai PW-1, who belongs to the Scheduled Caste community of Chamar, on the question of lifting of dead animals as the complainant had refused to remove the dead cattle of the Appellants and he was threatened with dire consequences by the Appellants. There is no dispute that cases under Sections 107/116 Code of Criminal Procedure as well as Sections 323/427 I.P.C. and Section 24 Cattle Trespass Act were filed prior to the occurrence in question. About a month prior to the occurrence, the complainant and others were acquitted in the case under the Cattle Trespass Act, which resulted in deeper enmity between them. Enraged by their acquittal, Appellants Raj Kumar and Ram Pal Singh being armed with guns, Faqirey being armed with a country made pistol (Katta) and the rest Appellants being armed with lathis, on 24.6.1977 at about 4 pm, surrounded Bhulai and his son Bardi when Bhulai was collecting the grass and Badri was ploughing the field, which was taken on Batai from Devi Badhai, and exhorting to set them right, caught hold of them, abused and dragged them upto the field of Ram Chandra Murao and started beating them. On the alarm of Bhulai and Badri, several persons, namely, Baladin, Putti Lal PW-2 and Jagjivan PW-3, who were working in the nearby fields, rushed towards them but in the meanwhile, Raj Kumar opened fire at Badri, who fell down after sustaining injuries and when his father Bhulai tried to come to his rescue, Faqirey fired upon him as a result thereof he also received injuries and Ram Pal Singh fired at Baladin, who also fell down after sustaining the injuries and the Appellants, who were armed with lathis, assaulted Baladin, Bhulai, Jagjivan and Putti Lal with lathis. On hearing the sound of firearms and the noise of the occurrence, several persons, including Ram Bharose PW- 4 and Balraj, rushed from the village to the place of occurrence, whereupon Raj Kumar again fired at Balraj who received fire-arm injuries. Ram Bharosey PW-4 and several villagers, who had assembled at the spot wielded lathis and pelted Dhelas (small pieces of hard earth) at the assailants to defend the victims. On realizing the mounting pressure of the villagers, the Appellants went away towards the west of the place of occurrence.

An oral report of the occurrence Ext. Ka-1 was lodged by Bhulai on 24.6.1977 at 7.15 pm at Police Station-Tikait Nagar, where a case under Sections 147, 148, 149, 307 and 323 I.P.C. was registered against all the 12 Appellants. Later on, injured Badri and Baladin succumbed to their injuries in the hospital and the case was converted u/s 302 I.P.C. on the same day at 9.05 p.m.

A cross report of the occurrence Ext. Ka-20 was lodged by Appellant Mathura on the same day at 10.45 p.m. at Police Station-Kotwali, Barabanki, against Bhulai and 38 other persons with the allegations that on 24.6.1977 at about 5 p.m. when his nephew Faqirey was irrigating his field from the canal, Bhulai and Gopi obstructed the canal water, to which Faqirey objected, whereupon Bhulai and Gopi beat him. At that time, he and Jagdamba were returning from the market and on seeing the occurrence, they rushed to save Faqirey, but in the meanwhile 37 other persons came over there and attacked them with lathis and also fired at them, whereupon he also fired with his gun and raised the alarm and when several persons ran towards them, then the assailants ran away. It was also claimed that besides Faqirey and Jagdamba, he also received injuries in the occurrence.

In the investigation, the version put forth in the cross report, was not found correct and after the investigation, charge sheet was submitted against accused Appellants.

The prosecution examined 14 witnesses in support of its case out of them Bhulai PW-1, Putti Lal PW-2, Jagjivan PW-3 are the injured witnesses whereas Ram Bharosey PW-4 is the eye witness of the occurrence and the rest are formal witnesses, who have proved the police papers.

Dr. Rafat Ashfaq PW-7 had conducted the postmortem examination of deceased Badri and Baladin on 26.6.1977. According to the postmortem report of deceased Badri, Ext. Ka-8, following ante mortem injuries were found on his body:

1- Multiple punctured wounds present in the area of 11 cm x 6 cm on ventro- lateral aspect of right elbow and upper one-third of right fore arm and lower one-third of right upper arm (entry), each wound 2 mm x 2 mm, Margin inverted.

2- Multiple punctured wounds in the area of 6 cm x 2 cm on the back of right elbow and lower one-third of upper arm, each measuring 5 mm x 5 mm Margin inverted (exit).

3- Multiple punctured wounds in the area of 21 cm x 18 cm on right side of front of abdomen and on lateral aspect extending from below the costal margins. Each wound measure 2 mm x 2 mm Margin inverted.

4- Multiple punctured wounds in the area of 7 cm. x 4 cm. on lateral aspect of right hip, each wound measuring 2 mm x 2 mm Margin inverted.

Following ante mortem injuries were found on the body of deceased Baladin as per his postmortem report, Ext. Ka-9:

1- Lacerated wound 7 cm x 1 cm on top of scalp 13 cm above the left ear.

2- Lacerated wound 6 cm. x 1 cm, 4 cm right to injury No. 1.

3- Punctured wounds two in number present on dorsal aspect of middle and ring finger of left hand, each wound measuring 2 mm x 2 mm over the first inter-phalangeal joint. One shot removed from the tissue underneath.

4- Punctured wound circular in shape 2 mm x 2 mm on dorsal aspect of ring finger of right hand over first inter-phalangeal joint.

5- Multiple punctured wounds in the area of 21 cm x 15 cm on left groin, upper part of left thigh and lower part of left illiac fossa. Each wound measuring 2 mm x 2 mm Margins inverted. Surrounding skin normal.

PW-8 Dr. A. K. Srivastava had conducted the X-Ray of Bhulai and according to him radio opaque shadows were seen in his left upper arm. PW-9 Dr. K.R. Khan had examined the injuries of Bhulai, Balraj, Jagjivan and Putti Lal on 24.6.1977 between 8.20 to 8.50 p.m. and found injuries on their persons .

The accused Appellants, excepting Mathura, Faqirey and Jagdamba, denied their presence at the scene of occurrence, whereas Mathura, Faqirey and Jagdamba took the case of self defence and said that Bhulai and others were aggressors. The Appellants examined Devi DW-1, Ram Dheeraj DW-2, Ahmad Ali DW-3 and Dr. A. K. Srivastava DW-4 in support of their defence case.

Devi DW-1 has denied to have given his field on Batai to Bhulai or to his son Badri. Ram Dheeraj DW-2, the Ziledar of Irrigation Department, has stated that on 23.6.77 and 24.6.77 Khajuri Minor Canal was having .6 foot water, which was running in the Head section of the canal and there was no water towards the Tail and further stated that the water in the canal was insufficient to run through the drains (Qulaba) for irrigation purposes. Ahmad Ali DW-3, the Patraul of Irrigation Department, has stated that Khajuri Minor Canal was under his charge and the residents of village Dhakuwa were getting canal water from Qulaba No. 11 and plot No. 153, which was recorded in the name of Raj Kumar, was irrigated within fifteen days of 5.7.1977. According to him, in June, 1977 and upto 5.7.1977, Khajuri Canal received only .5 or .6 foot water. Dr. A. K. Srivastava DW-4 had examined the injuries of Appellants Faqirey, Jagdamba Singh and Mathura Prasad on 24.6.77 between 11. 15 p.m. to 12.00 p.m.

Learned Additional Sessions Judge on appreciation of evidence did not find substance in the defence version and came to the conclusion that Appellant Raj Kumar had committed the murder of Badri whereas Ram Pal Singh had committed the murder of Baladin and Faqirey attempted to commit the murder of Bhulai and they also committed rioting being armed with fire arms and rest Appellants committed rioting and voluntarily caused hurt to Bhulai, Jagjivan and Putti Lal in furtherance of the common object of unlawful assembly and sentenced the Appellants as aforesaid.

The Appellants being aggrieved with the judgment and order of the trial court, preferred the appeal, which was heard by a Division Bench of this Court presided over by Hon''ble Justice Khem Karan alongwith Justice P.K. Chatterjee, but their Lordships of the Bench differed in their opinion. While Hon''ble Justice Khem Karan, finding no substance in the appeal, dismissed the same, Hon''ble Justice P.K. Chatterji allowed the appeal and acquitted the Appellants.

The appeal has thus been referred for my opinion as third Judge.

I have heard Mr. Ghayasuddin Qidwai, Mr. Virendra Kumar Shukla and Mr. Rajiv Dubey for the surviving Appellants and Mr. O. P. Srivastava, learned A.G.A. for the State and perused the impugned judgment of the trial court and the judgments of Hon''ble Justice Khem Karan and Justice P.K. Chatterjee and gone through the record of the trial court.

Indisputably, a report of the cross version of the occurrence, Ext. Ka-20, was lodged by Appellant Mathura at P.S. Kotwali, Barabanki, on the day of occurrence at 10.45 p.m. against 39 persons, including complainant Bhulai witnesses Putti Lal and Jagjivan and deceased Badri and Baladin alias Bailer. As it is not disputed that an occurrence had taken place at the alleged time and place, therefore, it is to be seen whether it had occured in the manner alleged by the prosecution or it could also take place in the manner stated by the defence. While prosecution is required to prove its case beyond any shadow of doubt, the burden of proof upon the defence is not so strict and it may be discharged by showing the preponderance of probabilities in favour of defence case.

According to the prosecution case, complainant Bhulai PW-1 and his son deceased Badri were present at the field, which was taken on Batai by the complainant from Devi Badhai of village Jagdishpur, and while Badri was ploughing the field, the complainant was collecting the grass when the Appellants, on the basis of caste rivalry, surrounded them and exhorting to set them right, caught hold and dragged them towards the field of Ram Chandra Murao, where the rest of the occurrence took place.

It has been argued by the learned Counsel for the Appellants that the prosecution has failed to prove that the occurrence was started in the field of Devi Badhai as Devi DW-1 had denied to have given his field on Batai to either Bhulai or to his son Badri and as such there was no occasion for them to be present at that field or plough it, as alleged. It is also argued that the learned trial court has not properly appreciated the evidence of DW-1 and only on the ground that he was having a weak eye sight and had only one bullock, wrongly held that he could not cultivate the field himself. Bhulai PW-1 was cross examined on this point at length. He has said that he was cultivating that field for the last three years prior to the occurrence. No circumstance has been pointed out in his cross examination which could have made his testimony unworthy of credit. Although Devi DW-1 has also withstood the test of cross examination and has said that he was personally cultivating his field with the help of his son, daughter and wife, yet the witness does not appear to have sufficient means to do personal cultivation. The Investigating Officer B.B. Ojha PW-14 has stated that at the time of his inspection, he found a portion of that field ploughed. He has though admitted that this fact was not mentioned in the site plan, but has said that it had been mentioned in the Case Diary. Learned Additional Sessions Judge has given cogent and convincing reasons for disbelieving D.W. 1 while dealing with this point and has believed PW-14 on this point. There appears no good ground to disagree with the findings of the learned trial court. The evidence of Devi DW-1 thus appears motivated and can not be believed.

Mr. Ghayasuddin Qidwai further submitted that if the complainant and his son were surrounded by the Appellants at the field of Devi, then there was no reason for the Appellants to have brought them from that field to the field of Ram Chandra Murao because if the Appellants wanted to set the complainant right or to teach him a lesson, as alleged, they could have assaulted him at the very field of Devi. Learned trial court has also considered this aspect and its observation that why the Appellants behaved in a particular manner, was difficult to explain, but looking to their number and arms they were having, it could be understood that they were swayed by the power and opportunity at their disposal, appears acceptable as discretion and prudent behaviour are always casualty in such circumstances. The contention, therefore, does not raise any doubt about the genuineness of the prosecution case.

Another argument emphatically raised by the learned Counsel for the Appellants is that as the injuries of accused Appellants Faqirey, Jagdamba and Mathura, have not been sufficiently explained by the prosecution, therefore, the prosecution has suppressed the genesis and origin of the occurrence and as such the prosecution case is liable to be rejected. In this regard, reliance has been placed upon the judgment of the Apex Court rendered in the case of Lakshmi Singh and Others Vs. State of Bihar, wherein the Apex Court has reiterated its earlier view expressed in the case of Mohar Rai and Bharath Rai Vs. The State of Bihar, that non explanation of the injuries sustained by the accused at or about the time of the occurrence may lead to the inference that; firstly, the prosecution has suppressed the genesis and origin of occurrence and has thus not presented the true version; secondly, the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and, therefore, their evidence is unreliable; and thirdly, defence version which explains the injuries on the person of the accused is more probable.

Mr. O. P. Srivastava, learned A.G.A., on the other hand, relying upon a case law of the Supreme Court in the case of Jagdish Vs. State of Rajasthan, submitted that before the obligation of explaining the injuries of accused is placed on the prosecution, two conditions must be satisfied; firstly, that the injuries on the person of the accused must be serious and severe and not superficial; and secondly, that it must be shown that these injuries must have been caused at the time of the occurrence in question.

The necessity of explaining the injuries of the accused would, therefore, not apply where the injuries sustained by the accused are superficial or minor or where the injuries are not caused in the same occurrence or where the prosecution evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit worthy that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries.

According to Dr. A.K. Srivastava DW-4 and injury reports Ext. Kha-1 to Ext. Kha-3, Appellants Faqirey, Jagdamba and Mathura Prasad, who were examined on 24.6.1977 from 11.15 p.m., were having the following injuries:

Appellant Faqirey was having-

1- Lacerated wound over right eye brow, size 7 cm x 0.5 cm x bone deep. Advised X ray skull.

2- Traumatic swelling over right upper eye lid, size 4 cm x 2 cm, sub-conjunctival haemorrhage over right eye present.

3- Abrasion over dorsal aspect of right forearm, 7 cm above wrist, size .5 cm x .5 cm.

4- Lacerated injury over base of index finger of right hand on dorsal aspect, size 2 cm x .5 cm x skin deep.

5- Multiple contusions over right upper quadrant of abdomen in an area of 17 cm x 7 cm, tenderness in sub-costal margin.

6- Multiple contusions over outer aspect of right thigh in an area of 12 cm x 7 cm.

Appellant Jagdamba was having-

1- Lacerated wound over upper surface of scalp 13 cm above right ear pinna, size 2 cm x .5 cm x skin deep.

2- Two lacerated wounds over occipital protuberance, 2 cm apart size (a) 2 cm x .5 cm x skin deep, (b) 2.5 cm x . 5 cm x skin deep.

3- Lacerated wound over back of right side chest, size 1 cm x .5 cm x skin deep, over shoulder blade.

4- Traumatic swelling over upper and back surface of left side chest, size 8 cm x 4 cm.

5- Traumatice swelling over back of abdomen on left side, size 8 cm x 3 cm, above iliac crest.

6- Abrasion in web space between thumb and index finger, size 5 cm x .5 cm.

Appellant Mathura was having-

1- Lacerated injury over back of scalp 5.5 cm above occipital protuberance, size 3 cm x .5 cm x skin deep.

Although in the opinion of Dr. Srivastava D.W. 4, all the injuries of the aforesaid injureds were simple, but looking to the nature of some injuries, it cannot be said as either superficial or grievous or severe. DW-4 has opined that these injuries could have been sustained on 24.6.1977 at about 4 p.m. and as such the injuries of accused Appellants could have been caused during the course of occurrence in question.

Learned A.G.A. has, however, submitted that sufficient explanation of the injuries of the accused persons is available on record as Bhulai PW-1, at the very first occasion, has mentioned in his report Ext. Ka-1 that lathis were wielded by them in their defence and has also stated in para 3 of his examination that the witnesses had tried to defend them by throwing dhelas and wielding dandas and Jagjivan P.W.3 and Ram Bharose P.W. 4 have also said about pelting of dhelas and wielding of lathis by those who had rushed from the village. He also submitted that the testimony of the injured witnesses, namely, Bhulai, Putti Lal and Jagjivan can not be discarded because the injuries of accused persons were not grievous or severe but were only simple and minor.

Learned Counsel for the Appellants, on the other hand, pointed out that the complainant PW-1 has not mentioned about pelting of dhelas in his report Ext. Ka-1 and has said about it for the first time in his examination before the court and in his cross examination he has said that the witnesses who had come form the village, were having lathi, danda and dhelas, which were of raw and baked bricks and dhelas wre thrown from a distance of 20 paces and those who were having lathi and dandas remained standing at the same distance and did not come near due to fear of the assailants and he has also denied to have seen any injuries on the persons of any of injured accused Appellants. He further pointed out that PW-1 has also denied to have mentioned in his report that the witnesses had wielded lathis to defend them and has said that from his side 3- 4 persons had thrown dhelas. Learned Counsel also pointed out that Putti Lal PW-2 has not said about pelting of dhelas or wielding of lathi, dandas by the witnesses in defence, though Jagjivan PW-3 has said that the persons, who had come from the village were having raw bricks (Kachchey Gummey), but he has not said as to which use those bricks were put to and has specifically said that Faqirey, Jagdamba and Mathura did not sustain any injuries and he had not seen any injury on their persons. He further pointed out that Ram Bharose PW-4, who had allegedly come from the village, has said that on hearing the noise and the sound of firing, he rushed from his house alongwith 5-6 persons, some of whom were having lathis and have pelted dhelas at the accused persons from 10-15 paces and when the persons, who were having lathis, wielded it then the accused persons ran away. The contention of the learned Counsel for the Appellants in the light of the aforesaid statements of the witnesses, is that though the presence of PW-1, 2 and 3, being injured witnesses, cannot be doubted on the place of occurrence, yet their presence alone cannot be a guarantee of their truthfulness and as neither the injuries of the accused Appellants are properly explained nor they appear to be trustworthy, therefore, no safe reliance can be placed upon their testimony.

Looking to the nature of the injuries of accused Faqirey, Jagdamba and Mathura and the statement of D.W. 4, it appears that the lacerated wounds and traumatic swellings could have been inflicted by lathi or danda blows whereas contusions and abrasions by pelting of dhelas and the same could have been received at about the time of occurrence. However, since none of these injuries was grievous or severe and it was the case of the prosecution from the time of lodging of F.I.R. that lathis were wielded by the witnesses in defence and complainant Bhulai PW-1 has stated that the witnesses had tried to save the victims by throwing dhelas and wielding dandas and though he cannot say as to who had received injuries as a result of pelting of dhelas, yet Jagjivan PW-3 has said that he and others tried to save the victims and pelted Kachchey Gummey and Ram Bharosey PW-4 has also said about the wielding of lathis and pelting of dhelas by him as well as by others who had rushed from the village, therefore, in my opinion, the injuries of the accused persons are sufficiently explained from the prosecution evidence. The contention that the prosecution has suppressed the genesis and origin of the occurrence is, thus, not tenable.

So far as the probability of the defence case is concerned, according to it, Appellant Faqirey was beaten by complainant Bhulai and his brother Gopi when he objected to the stopping of canal water by them and when his uncle Mathura and Jagdamba, who were returning from Khajuri market rushed to save Faqirey, then all the three were assaulted with lathis by Bhulai, Gopi and their 37 associates, who had arrived in the meanwhile. The Appellants were also fired at and when Faqirey and Jagdamba fell down and Bhulai exhorted to snatch the gun of Mathura, then Mathura fired with his gun. No eye witness of the said occurrence has, however, been examined by the accused persons in support of their case. Only accused Mathura, Faqirey and Jagdamba have said about it in their statements recorded u/s 313 Code of Criminal Procedure The testimony of Dr. A. K. Srivastava DW-4 shows that the injuries of these accused Appellants could have been caused at about the occurrence in question. Ram Dhiraj DW-2 and Ahmad Ali DW-3 of the Irrigation Department have only said about the presence of water in the Head Section of Khajuri Minor Canal on the day of occurrence. DW- 3 has also said about the irrigation of plot No. 153, which was recorded in the name of Raj Kmar. There is, however, no evidence to show that Faqirey was irrigating plot No. 153 or that any field of Faqirey was situated within the Head Section of the said Canal. Moreover, Ram Dhiraj D.W. 2 has specifically said that on 24.6.1977, the water in the canal was insufficient to run through the drains (Kulaba) for irrigation purposes. Thus the defence case that Faqirey was irrigating his field from the canal and the occurrence took place on stopping of the water by complainant Bhulai and his brother Gopi is not established in the absence of any evidence in support thereof and the defence version that Appellants Faqirey, Jagdamba and Mathura received injuries at the hands of Bhulai and his 38 assailants does not appear to be probable.

Learned Counsel for the Appellants also argued that all the examined witnesses of fact, namely, PW-1 to PW-4 belonged to one community and were related to each other and since they were highly inimical and interested witnesses on account of caste rivalry, therefore, their evidence should not have been acted upon by the trial court for recording the finding of guilt against the Appellants. Relationship amongst the examined witnesses and their belonging to one community is not disputed. Similar is the position with the accused persons as one set of the accused belonged to Brahmans community and the other to Thakur community. Bhulai PW-1 has stated in para 5 of his examination that in his village Dhakuwa, there are about 30 to 32 houses of his community (Chamar), four houses of Brahmans and only one house of Thakur and few houses of other communities. He has also admitted that all the Brahmans of the four houses, excepting Bodhi and Kokila, are accused in this case as Kokila resides outside the village and Bodhi is aged about 70-80 years and all the Thakurs of the village are accused in this case. In a village where there exists caste rivalry between Brahmans and Thakurs on the one side and Chamars on the other, the person of other communities are not expected to come forward in support of the warring factions. Besides being related and belonging to one community, P Ws- 1 to 3 are also injured witnesses and as such their presence at the time and place of occurrence cannot be doubted and their testimony cannot be discarded only on the basis of relationship or previous enmity.

It has also been argued by the Appellants'' counsel that as per prosecution case, both Bhulai and Badri were dragged by the Appellants from the field of Devi upto the field of Ram Chandra Murao, but this circumstance is neither supported by the site plan of the place of occurrence, which does not show that any mark of dragging was found on the ground, nor by any injury on the persons of either deceased Badri or complainant Bhulai which can be said to have been caused by dragging . Though the I.O. of the case B.B. Ojha PW-14 has admitted that he did not find any marks of dragging on the place of occurrence, yet merely on the basis of this circumstance, the prosecution case cannot be doubted. The use of term "dragging" in the report Ext. Ka-1 as well as in the statement of PW-1 Bhulai does nowhere show that they were dragged on the ground in lying condition. A forcible taking away can also be termed as dragging and in the instant case, it appears that both the complainant and his son Badri were forcibly brought from the field of Devi upto the field of Ram Chandra Murao as Putti Lal PW-2 has stated in para 3 of his examination that in bringing Bhulai and Badri, if they happened to stop in the way, they were pushed from behind and pulled from the front. In this circumstance there could neither be any marks on the ground nor any injury on their persons. The argument of the learned Counsel for the Appellants has, therefore, no substance and it does not cast any doubt about the genuineness of the prosecution case.

So far as the motive part of the occurrence is concerned, since it is a case based on direct evidence in which there are several injured witnesses, therefore, the question of motive looses its importance and cannot be said to be an essential circumstance for proving the prosecution case. The prosecution has, however, shown the caste rivalry and previous enmity as the motive for the occurrence. It is not disputable that the Appellants and complainant side were inimical to each other on account of caste rivalry and several criminal cases were fought by both the sides. The complainant Bhulai PW-1 has said that he used to lift dead cattles of the Appellants and to work at their fields, but about three years prior to the incident he had stopped lifting the dead animals whereupon the accused Appellants started having grudge against him and in order to teach him a lesson he and his son were beaten. He has further stated that Appellant Mathura had lodged a case for forcible snatching of cattles against him and others in which they were acquitted about a month prior to the occurrence, which had enraged the accused Appellants. He has been subjected to cross examination at length on this point. Learned trial court has also discussed this aspect of the matter at length in his judgment and I am in agreement with his finding that from the material on record the motive for the occurrence, is sufficiently established.

The report of the occurrence was lodged with the police at 7.15 p.m., i.e., about 3 hours and 15 minutes after the occurrence and looking to the distance of four and half miles from the place of occurrence to the police station as per F.I.R. Ext. Ka-1, there appears no delay in reporting the matter to the police and it was promptly lodged within due time. A prompt F.I.R. has its own importance for the just decision of the case as undue/unexplained delay in lodging the report may cause coloured version and thus, a prompt report can be accepted as a true version of the prosecution case. The learned trial court, in the circumstances of the case that there were several injured persons out of whom, two were seriously wounded, has rightly found that the complainant did not make any delay in lodging the report and the same was promptly lodged.

Learned Counsel for the Appellants pointed out that, according to prosecution case, the I.O. PW-14 had recovered two fired cartridges from the place of occurrence and the recovered cartridges were sent alongwith two gun numbering 963/66 and 613/66 to the Ballistic Expert Om Prakash Mani Tripathi PW-11 for the report whether or not those cartridges were fired by those guns. He further pointed out that Gun No. 963/66 was said to be recovered from one Gokul Prasad and was deposited by Sub-Inspector Ram Kanth Prasad on 24.6.1977 at P.S. Kotwali, Barabanki, vide G.D. No. 42 (Ext. Ka-19), whereas Gun No. 613/66, was taken from the possession of accusedAppellant Babu Singh on 25.7.1977 by the I.O. and was deposited by him at the police station vide G.D. No. 22 (Ext. Ka-20). He also pointed out that according to Shri Tripathi PW-11 and his report Ext. Ka-18, only one cartridge was found fired from Gun No. 613/66 and the other cartridge was not fired from Gun No. 963/66.

Learned Counsel for the Appellants, without disputing the correctness of the expert evidence, has argued that since Gun No. 963/66 was sent to the expert on the assumption that it was used by Appellant Raj Kumar but since the said gun was not found used in the incident, therefore, the fact that it was used by Appellant Raj Kumar, is not proved. It has also been argued that though the trial court has held that Gun No. 613/66, with whom one of the recovered cartridges was fired, was used by accused Ram Pal Singh for firing at deceased Baladin, but since this incriminating circumstance has not been put to him u/s 313 Code of Criminal Procedure by the trial court, therefore, this circumstance cannot be used against accused Ram Pal Singh.

In my opinion, merely on the ground that from the evidence of the ballistic expert Gun No. 963/66 has not been found used in the occurrence, it does not raise any doubt in respect of ocular testimony of the injured witnesses that Appellant Raj Kumar had fired with a gun at Badri and Balraj. Although, no prejudice is shown to have caused to accused Ram Pal Singh by not putting the above incriminating circumstance to him u/s 313 Code of Criminal Procedure, yet even by excluding that circumstance from consideration, direct evidence of the witnesses, including the injured witnesses, sufficiently show that accused Ram Pal Singh had fired with a gun at Baladin and deceased Badri and Baladin had died of the injuries received in the occurrence.

So far as ocular testimony of Bhulai PW-1, Putti Lal PW-2, Jagjivan PW-3 and Ram Bharose PW- 4 is concerned, as stated earlier, Bhulai, Putti Lal and Jagjivan are the injured witnesses and their presence at the scene of occurrence cannot be doubted. These witnesses have fully supported the prosecution case on oath and have withstood the test of cross examination and no such circumstance has been pointed out in their examination which could have made their testimony unworthy of reliance. No material contradiction or discrepancy has also been pointed out in their testimony which finds full support from the medical evidence of Dr. Rafat Ashfaq PW-7, Dr. A.K. Srivastava PW-8 and Dr. K.R. Khan PW-9 and from other circumstances appearing in the case. Their testimony thus inspires confidence and appears trustworthy.

Even if the evidence of DW-2 and DW-3 is accepted on the point that Khajuri Minor Canal was having water on the day of occurrence, it could not be inferred from it that Faqirey was irrigating the field from the canal and Bhulai and others had stopped the flow of water, whereupon any incident had taken place. Learned trial court has, therefore, rightly rejected the defence case.

It was a broad daylight occurrence wherein two persons had died and four others sustained injuries at the hands of 12 persons. Since both the assailants as well as the victims were the residents of the same village and fully known to each other, therefore, the question of the identify of the assailants does not arise and it is also improbable that the eye witnesses would have left the actual assailants scot free and would have named the Appellants due to enmity. Learned Counsel for the Appellants have also taken a ground of the exercise of the right of private defence but as the defence theory has not been found probable, therefore, the accused Appellants had no right of private defence because they were the aggressor and had formed an unlawful assembly with the common object of committing the crime. The right of private defence is admittedly not available to the person committing the offence and as such this argument is not tenable.

In view of the discussion as aforesaid, I fully concur with the opinion of Hon''ble Justice Khem Karan that the instant appeal of the surviving Appellants has no force and deserves to be dismissed. The appeal is, accordingly, dismissed. The Appellants are on bail. They shall surrender to the bail bonds and shall be sent to jail to serve out the sentence as imposed by the learned Additional Sessions Judge.

Record of the lower court be sent back to it with a copy of the judgment for necessary compliance.