Rameshwar and three others vs State of U.P.

Vishnu Sahai, J.—Through these appeals, the appellants challenge the judgment and order, dated 18.4.1980 passed by the Vlth Additional Sessions Judge, Hardoi in Sessions Trial No. A279 of 1979, whereby they have been convicted and sentenced in the manner stated hereunder:

(a) Bodil, Jagdish and Rameshwar: Under Sections 148 I.P.C., 324/149 I.P.C. and 302/149 I.P.C. to 18 months'' R. I. under the first and second counts, and to imprisonment for life under the third count.

(b) Gajrai, Basant, Sobran and Lakshmi Narain: Under Sections 148 I.P.C., 324 I.P.C. and 302/149 I.P.C. to 18 months'' R.I. under the first and second counts, and to imprisonment for life under the third count.

(c) Kunjan : Under Sections 147 I.P.C., 324/149 I.P.C. and 302/149 I.P.C., to one years'' R.I. under the first count, to 18 months'' R.I. under the second count, and to imprisonment for life under the third count.

The substantive sentences of the appellants were ordered to run concurrently.

Feeling aggrieved by their aforesaid convictions and sentences in this CourtRameshwar, Kunjan, Lakshmi Narain and Jagdish preferred Criminal Appeal No. 237 of 1980; Sobaran, Criminal Appeal No. 295 of 1980 and Bodil, Basant, and Gajraj Criminal Appeal No. 352 of 1980. Criminal Appeals No. 568 of 1980 and 794 of 1980 have been preferred from jail, the former by Basant and the latter by Gajraj.

Since all these five connected criminal appeals arise out of a common factual matrix and impugned judgment, we are disposing them off by one judgment.

The prosecution case, in short, runs as under:

The informant Ram Chander (PW 1) is the elder brother of Shiv Karan (the deceased). At the time of the incident he, Shiv Karan, eyewitnesses Putti Lal (PW 2) and Sri Ram (PW 4), and the eight appellants were residing in village Patti, hamlet of Tejpur, within the limits of Police Station Mallawan, District Hardoi. There was enmity between the deceased and the informant on one side and the appellants on the other. The details of it are furnished in the evidence of the informant Ram Chander and are as under:

(a) Gaya Prasad (the maternal uncle of the informant and the deceased Shiv Karan) had filed a case in respect of some land against appellant Bodil and his brothers in which from his side Shiv Karan was doing pairvi. During the pendency of the case, Gaya Prasad died and in his place informant''s mother Smt. Maharaj was arrayed as a party. From the Court of Munsif Smt. Maharaj succeeded. An appeal was filed on the insistence of Shiv Karan and he was doing pairvi in it. The said appeal was pending in the High Court at the time of the incident.

(b) At the time of the incident, proceedings under section 107 Cr. P.C. were going on between the informant and others on one side and the appellants on the other.

(c) In 1978 truck of the informant''s brother Chhami Lal had been looted and a case under section 394 I.P.C. had been registered against appellant Bodil and some others. That case was also pending at the time of the incident.

(d) Seven to eight years prior to the incident appellant Bodil''s brother Jawahar had been murdered, and for the same informant''s brother Chhami Lal and some others were prosecuted and acquitted.

On the date of the incident, i.e. on 17.1.1979, at about 7.00 P.M., informant Ram Chander and the deceased Shiv Karan went to get four khurpas sharpened at the place of Putti Lal (PW2) which was situated at a distance of 5060 paces from their house. At that time Sri Ram (PW4), informants nephew Hari Shankar and Putti Lal were warming themselves in the fire in side the gate of Putti Lal. At a distance of three paces a kerosene lamp was burning. When informant and Shiv Karan asked Putti Lal to sharpen the khurpas, he replied that he was feeling cold and after warming himself would sharpen their kharpas. Consequently, the informant and Shiv Karan also sat, alongwith Putti Lal, Sri Ram and Hari Shankar and started warming themselves. In the meantime, appellants Bodil and Jagdish armed with guns, appellant Ram Asrey armed with tamancha, appellants Sobaran, Gajraj, and Basant armed with bankas, appellant Lakshmi Narain armed with a gandasa and appellant Kunjan armed with a lathi came. Bodil instigated "Shiv Karan Aaj Turn Bachkar Nahin Ja Paaoge". The informant and Shiv Karan tried to run, but Bodil fired at Shiv Karan from a distance of one feet and the shot struck him and he fell down. Thereafter, Sobaran, Gajraj and Basant with bankas, Lakshmi Narain with a gandasa and Kunjan with a lathi belaboured Shiv Karan. In the meantime, the informant, Shankar Lal, Putti Lal and Sri Ram was raised cries, hearing which Lakshmi Narain, Mathura, Dularey and others came with lathies and torches. They flashed their torches and challenged the appellants who ran away firing in the eastern direction. Thereafter, the informant saw that his brother Shiv Karan was dead.

5A. The evidence of the informant Ram Chander (PW 1) shows that after the incident, he scribed his F.I.R. and thereafter proceeded to Police Station and lodged it.

The evidence of S.I. Mukesh Chand (PW6) shows that on 17.1.1979, at 9.30 P.M., while he was posted at Police Station Mallawan, District Hardoi the informant Ram Chander (PW 1) came and lodged the F.I.R., on the basis of which Mohd. Anwar Hussain registered a case vide Exhibit Ka19. His evidence shows :

He immediately took over the investigation and interrogated the informant Ram Chander at Police Station itself and thereafter left for the place of the incident, where he stayed at night. On 18.1.1979, he performed the inquest on the corpse of the deceased and thereafter sent it for autopsy. He then interrogated Putti Lal (PW2) and others and thereafter prepared the siteplan (Exhibit Ka6). From beneath the corpse he seized plain and bloodstained earth in separate containers under recovery memo. He recovered ash from the place where the informant and others were warming themselves under a recovery memo (Exhibit Ka8). He also recovered from the place of the incident some cartridges, six being empty and a missed cartridge under a recovery memo (Exhibit Ka11). He inspected the kerosene lamp, which was burning at the place of the incident. After, completing the investigation, he submitted the chargesheet (Exhibit Ka18) against the appellants.

Going backwards, the autopsy on the corpse of Shiv Karan was conducted on 19.1.1979 at 11.30 A.M. by Dr. N.A. Khan (PW5), who found on it the following antemortein injuries:

(i) Incised wound 10 cms. x 3 cms. x bone deep over right side of head, starting from just above right eyebrow upwards, situated linearly,

(ii) Incised wound 8 cms. x 4 cms. x bone deep over right side of head above right ear by the side of injury no. 1 situated obliquely.

(iii) incised wound 16 cms. x 1.5 cms. x bone deep over right side of head 2.5 cms. above right ear, situated parallel to injury no. 1 starting from outer end of right eyebrow and backwards.

(iv) Incised wound 13 cms. x 3 cms. x bone deep on the face, starting from bridge of nose to right ear, across the right eye. The eye ball is, bulging.

(v) Incised wound 11 cms. x 3 cms. x bone deep, starting from middle of right ear to the back of head right side, dividing the right ear into two parts.

(vi) Incised wound 12 cms. x 2 cms. x bone deep, starting from right auxiliary region to right side, cutting right ear louble.

(vii) Incised wound 11 cms. x 1.5 cms. x bone deep over right side of face, starting from right angle of mouth to right side, situated horizontally.

(viii) Incised wound 9 cms. x 1.5 cms. x bonedeep over top of head 10 cms. above right ear, situated obliquely (ix) Lacerated wound 4.5 cms. x 1.5 cms. x bone deep over left side of forehead, just above left eyebrow.

(x) Incised wound 6 cms. x 3 cms. x bone deep over the top of right shoulder blade, transversely.

(xi) Incised wound 4 cm. x 2 cm. x bone deep over back of right hand in the middle situated transversely.

(xii) Incised wound 6 cms. x 1 cm. x bone deep on back of right index middle and ring finger at the root, first phellone of all three fingers fractured.

(xiii) Incised wound 13 cms. x 4 cms. x bone deep over back of right thigh lower part just above the back of right knee just situated obliquely.

(xiv) Incised wound 15 cms. x 6 cms. x muscle deep over of right upper leg, 9 cms. below the back of right knee just parallel to injury no. 13.

(xv) Incised wound 3 cms. x 1.5 cms. x bone deep over lower and inner part of left leg, 4 cms. above left ankle joint.

(xvi) Incised wound 15 cms. x 4 cms. x bone deep over outer and upper part of left thigh, 11 cms. below the left iliac crast vertically.

(xvii) Incised wound 6 cms. x 1.5 cms. x muscle deep over outer aspect of left thigh, 2 cms. below injury nos. 16 and 29 cms. above left knee.

(xviii) Incised wound 4 cms. x 1 cm. x muscle deep over front aspect of left thigh, 25 cms. above left knee.

(xix) Incised wound 3" cms. x 0.5 cms. x muscle deep over palmer aspect left hand, just below left wrist joint.

(xx) Incised wound 2 cms. x 0.5 cm. x muscle deep over back of left index finger at the root.

(xxi) Incised wound 5 cm. x 0.5 cm. x muscle deep over back of left middle finger.

(xxii) Incised wound 5 cms. x 1.5 cms. x muscle deep over right side of abdomen, starting outwardly 13 cms. right to umblicus at 10 O''clock, position.

(xxiii) Gunshot wound of entrance 2 cms. x 1.5 cms. x chest cavity deep over back of chest right side 7 cms. away from mid line, and 7 cms. below from medial border of right scapula blackended. The wound directed forward and downward.

(xxiv) Gunshot wound of exit 2.5 cms. x 2 cm. x through and through over left side of abdomen 8 cms. Left to omblicus, at 21/2 O''clock position. Communicating with injury no. 23. Three wadding pieces recovered just below the wound.

In the opinion of Dr., Shiv Karan (the deceased) died on account of shock and haemorrhage as a result of the antemortem injuries suffered by him.

The case was committed to the Court of Sessions in the usual manner, where the appellants were charged on a number of counts to which they pleaded not guilty and claimed to be tried.

During trial, in all, the prosecution examined six witnesses. Three of them, namely, the informant Ram Chander, Putti Lal and Sri Ram, PWs. 1,2 and 4 respectively, were examined as eyewitnesses.

The learned Trial Judge believed the evidence of the eyewitnesses andconvicted and sentenced the appellants in the manner stated in paragraph 1.

Hence, this appeal.

We have heard learned, Counsel for the parties. We have also perused the depositions of the prosecution witnesses; the material exhibits tendered and proved by the prosecution; the statements of the appellants recorded under section 313 Cr. PC. and the impugned judgment. After the utmost circumspection we are of the view :

Criminal Appeal No. 237 of 1980 deserves to be partly allowed; Criminal Appeal No. 295 of 1980 deserves to be allowed; Criminal Appeal No. 352 of 1980 deserves to be dismissed and Criminal Appeals No. 568 of 1980 and 794 of 1980 deserve to be decided in terms of Criminal Appeal No. 352 of 1980.

We now propose giving our reasons for reaching our conclusion.

We have seen that the convictions of the appellants are based on the ocular account furnished by Ram Chander (PW 1) Sri Ram (PW4) and Putti Lal (PW2).

We now propose examining it.

We begin with that of Ram Chander (PW1). A perusal of Ram Chander''s statement shows that:

"There was enmity between him and his brother Shiv Karan (the deceased) on one side and appellant Bodil and others on the other. On the date of the incident, at about 7.00 P.M., he, alongwith Shiv Karan, had gone to the house of Putti Lal, which was situated at a distance of about 5060 paces from his house, to get four khurpas sharpened. When they reached there, Putti Lal, Sri Ram and Shankar Lal were warming themselves in the fire inside the gate of Putti Lal. They asked Putti Lal to sharpen the khurpas. He replied that he would sharpen them after warming himself. At that Juncture, appellants Bodil and Jagdish armed with guns, appellant Rameshwar armed with a pistol, appellants Sobran, Gajraj and Basant armed with bankas, appellant Lakshmi Narain armed with a gandasa and appellant Kunjan armed with a lathi came. Bodil instigated "Shiv Karan Aaj Turn Bachkar Nahin Ja Paaoge" and thereafter when he (Ram Chander) and Shiv Karan tried to run away, Bodil fired on Shiv Karan from a distance of one feet, the shot struck Shiv Karan and he lay down. Thereafter, Sobaran, Gajraj and Basant with bankas, Lakshmi Narain with a gandasa and Kunjan with a lathi started assaulting Shiv Karan. He (the informant), Sri Ram and Putti Lal came outside the room and raised cries, hearing which Chhami Lal, Mathura, Dularey and others came with lathi and torches in their hands. They flashed their torches and challenged the appellants who ran away thereafter."

We have gone through the evidence of Ram Chander and have no reservations in accepting his claim of having seen the incident.

In the first place, his evidence shows that he has explained his presence on the place of the incident. He has stated that he and the deceased went to Putti Lal''s house to get their khurpas sharpened and since people were inimical to Shiv Karan he always used to accompany him.

Secondly, in our view, the manner of assault furnished by him i.e. Bodil fired on Shiv Karan, Sobaran, Gajraj and Basant assaulted Shiv Karan with bankas, Lakshmi Narain assaulted Shiv Karan with a gandasa; and Kunjan assaulted Shiv Karan with a lathi, is corroborated by the medical evidence because earlier we have reproduced the antemortem injuries suffered by the deceased and seen that they comprised of 21 incised wounds, one lacerated wound, one gunshot wound of entry and one gunshot wound of exit. It is significant to mention that the evidence of the autopsy surgeon Dr. N.A. Khan (PW5) shows that gunshot wounds were attributable to firearm, the lacerated wound to a blunt object and the incised wounds to bankas and gandasa.

Assurance to the claim of Ram Chander of having seen the incident is led by the prompt F.I.R. of the incident, which was lodged by him within 21/2 hours of the incident taking place. We have seen that the incident took place on 17.1.1979 at 7.00 P.M. and the F.I.R. was lodged by Ram Chander, the same night at 9.30 P.M. at Police Station, Mallawan, which was situated at a distance of two miles from the place of the incident. Why we call the F.I.R. to be prompt is that during his crossexamination (in paragraph 32) Ram Chander stated that after the incident he remained in village for 11/4 hours and thereafter scribed the F.I.R. in five minutes and then lodged ''it. In other words, he lodged the F.I.R. within one hour and ten minutes of its being scribed by him, covering a distance of two miles. In such a factual matrix, we feel that the F.I.R. was promptly lodged.

We now take up the evidence of Sri Ram (PW4). His evidence shows :

"He is a resident of village Patti, hamlet of Tejipur wherein the incident took place. On the date and time of the incident he was warming himself inside the gate of Putti Lal. (PW2) alongwith Putti Lal and Hari Shankar. At that time Ram Chander and Shiv Karan came to get khurpas sharpened from Putti Lal. Patti Lal said he was wanning himself and would sharpen them a little later. Then, they also sat down and started warming themselves. Then, the eight appellants came. Since he has furnished the same version of the incident and manner of assault on Shiv Karan as Ram Chander (PW 1), we do not want to burden our .judgment by reiterating it. It is pertinent to mention that not only has he explained his presence on the place of the incident, but the manner of assault, as furnished by him, as in the case of Ram Chander, is also corroborated by medical evidence."

In the circumstances, we are of the judgment that Sri Ram also witnessed the incident.

We now come to the evidence of Putti Lal (PW2). His evidence shows :

"On the date and time of the incident, he, alongwith Hari Shankar and Sri Ram, was sitting inside the gate of his house. They were warming themselves. At that time, the informant Ram Chander and the deceased Shiv Karan came. They wanted to get their khurpas sharpened. He said that he would sharpen them in the morning. Thereafter, eight persons armed with weapons came. Bodil had a gun. Alongwith him were Rameshwar, Kunjan, Basant and Gajraj and three unknown persons, whom he could not recognise but they were of his village. ''Thereafter, Bodil fired on Shiv Karan. He ran and came outside and raised cries hearing which people came with lathies and torches and challenged Bodil and others, who ran away."

In his crossexamination he stated that the accused persons were concealing their faces.

We have gone through the evidence of Putti Lal and make no bones in observing that in him we have a witness who suffers from a trait which is often found amongst human beings, namely, of trying to please both the sides. He names five of the appellants, namely, Bodil, Rameshwar, Kunjan, Basant and Gajraj; assigns the role of firing on the deceased to Bodil; but he exonerates the other three of them, namely, Jagdish, Sobaran and Lakshmi Narain and comes out with a theory that alongwith the above five named appellants three were unknown persons, who were of his village whom he could not recognise. We cannot reconcile his said statement because in one breath he has stated, that he could not recognise the three unknown persons but in the next breath said that they belonged to his village. All what we can say is that persons like Putti Lal, who live in the same village in which the witnesses and the accused persons live, realise that they can only survive if they please both the sides.

In our view, the evidence of Putti Lal can only be safely relied visavis appellant Bodil because not only does he name him but also candidly states that he fired on the deceased. Though the names Rameshwar, Gajraj, Basant and Kunjan but since he does not attribute them the role of assaulting the deceased it would be safer to exclude his evidence. But we hasten to add it can also be relied upon to prove the time and place of incident; the latter being his own house and the presence of the informant Ram Chander, Sri Ram and deceased on the place of the incident.

The question, which arises, is whether on the evidence of the aforesaid three eyewitnesses the learned Trial Judge was justified in convicting all the eight appellants. Our answer to it is in negative. In our view, he should have only convicted appellants Bodil, Basant, Lakshmi Narain and Gajraj.

It is signifcant to point out that in the F.I.R. the informant Ram Chander has not attributed any specific overt act to appellants Jagdish, Rameshwar and Kunjan. What he has stated therein is that appellant Jagdish armed with a gun, appellant Rameshwar armed with a pistol, and appellant Kunjan armed with a lathi, alongwith the five other appellants, came. In the F.I.R., the informant has attributed specific overt act in respect of the assault on the deceased to appellant Bodil, who is said to have fired upon him to appellants Sobaran, Gajraj and Basant, who are said to have assaulted him with bankas; and to appellant Lakshmi Narain, who is said to have assaulted him with a gandasa.

In their evidence the three eyewitnesses have also not assigned any specific overt acts to Jagdish and Rameshwar. Although two of them, namely, Ram Chander and Sri Ram have assigned to Kunjan the role of assaulting Shiv Karan with lathi but we are not inclined to place reliance on their evidence, on that of former because not only he is an interested witness but both in his F.I.R. and in his statement under section 161 Cr.P.C. there is omission in respect of the Kunjan assaulting the deceased with lathi (when in crossexamination he was confronted with the said omission all that he stated was that he could give no reason for it); and on the latter because he is an interested witness as he admitted that proceedings under section 107 Cr.P.C. had taken place between him on one hand and appellant Bodil and others on the other (It is significant to point out that the evidence of Ram Chander shows that Kunjan is the real brother of Bodil).

It is true that the deceased sustained a lacerated wound on his person and Dr. N.A. Khan (PW5), who performed the autopsy on the corpse of the deceased, in his examinationinchief stated that it could be caused by a lathi and in his cross examination denied the possibility of its being caused by fall, but, in our view, looking to the dimensions of the said injury it can be said that it could have been caused by fall. The said injury may also have been the result of the blunt portion of banka and gandasa striking the deceased, because as many as twentyone incised wounds were caused by them.

For the said reasons the prosecution case against Jagdish, Rameshwar and Kunjan is not free from doubt and prudence demands that they be acquitted because in cases in which a large number of accused persons are involved the time honoured rule of appreciation of evidence is that only those persons should be convicted to whom the witnesses assign specific overt acts. This rule is all the more applicable where the main ocular account comprises of interested witnesses. The evidence of both Ram Chander (PW 1) and Sri Ram (PW2) shows that they are interested. Where only interested evidence is forthcoming and the incident takes place in factionridden villages, as is the case here, it is hazardous to convict accused persons on the maxim "they also serve who only stand and wait" because the probability of their false implication cannot be excluded.

We also feel that the prosecution case against Sobaran is not tree from doubt. We say this for two reasons. Firstly, because we find that there was interse enmity between appellant Sobaran and appellant Bodil, on account of which they could not have combined. In this connection, we would like to advert to the evidence of Putti Lal, who in his crossexamination (in paragraph 5) stated that Bodil had been prosecuted in two separate cases; one under section 25 Arms Act and one under section 412 I.P.C. and in both of them Sobaran was a witness against him. Secondly, we find that witness Sri Ram is inimical to Sobaran and the possibility of Sobaran''s involvement at the instance of Sri Ram cannot be excluded. In this connection, we would like to refer to the crossexamination of Sri Ram, wherein (in paragraph 7) he has stated that prior to the incident Sobaran had been prosecuted in a case of theft wherein he was a witness.

For the said reasons, in our judgment appellant Sobaran deserves to be given benefit of doubt.

We, however, do not even have an iota of doubt in our mind that the learned Trial Judge acted correctly in holding the involvement of appellants Bodil, Gajraj, Lakshmi Narain and Basant, established in the incident. We have seen that right from the F.I.R., which was lodged very promptly, the prosecution case is that appellant Bodil fired on the deceased Shiv Karan; appellants Gajraj and Basant assaulted Shiv Karan with bankas; and appellant Lakshmi Narain assaulted him with a gandasa. We have also seen that the medical evidence corroborates their participation because the postmortem report shows that we deceased suffered one gunshot wound of entry, one gunshot wound of exit and 21 incised wounds. We have seen that the evidence of two main eyewitnesses, namely, the informant Ram Chander (PW1) and Sri Ram (PW4) is in conformity with the manner of assault attributed to the said appellants in the F.I.R. We have also seen that Putti Lal (PW2) has named Bodil, and assigned to him the role of firing on the deceased.

For the said reasons, we hold that appellants Bodil, Gajraj, Lakshmi Narain and Basant participated in the incident.

However, we make no bones in observing that the conviction of Bodil cannot be sustained for the offences punishable under Sections 148 I.P.C. and 324/149 I.P.C. and that under section 302/149 I.P.C. would have to be converted to one under section 302/34 I.P.C. We also feel that the conviction of Gajraj, Basant and Lakshmi Narain cannot be upheld for offences punishable under Sections 148 I.P.C., 324 I.P.C. and that under section 302/149 I.P.C. would have to be altered to one under section 302/34 I.P.C.

So far as the conviction of Bodil for the offence punishable under section 324/149 I.P.C. is concerned and that of the other three for the offence punishable under section 324 I.P.C. is concerned, we are at our witsend as to why the learned Trial Judge convicted them thereunder. There is no injured witness in the case and in respect of the assault on the deceased the learned Trial Judge had already convicted them under section 302/149 I.P.C. Consequently, we acquit Bodil for the offence punishable under section 324/149 I.P.C. and Gajraj, Basant and Lakshmi Narain for the offence punishable under section 324 I.P.C.

We also acquit all four of them for the offence punishable under section 148 I.P.C. because the said offence contemplates of a member of an unlawful assembly being armed with a deadly weapon and section 141 I.P.C. provides that for membership of unlawful assembly there should be at least five persons and since, in all, there were only eight persons, who participated in the crime, and we are going to acquit four of them, the number comes down to four, and that being so, there would be no unlawful assembly within the meaning of section 141 I.P.C. and the acquittal under section 148 I.P.C. would have to be set aside.

On the same consideration, the convictions of all four persons under section 302/149 I.P.C. cannot be sustained because for the application of section 149 I.P.C. there should be an unlawful assembly and for reason mentioned in para 27 there is no unlawful assembly. However, in our view, there would be no impediment in law in converting their convictions from section 302/149 I.P.C. to section 302/34 I.P.C. in spite of the fact that they have not been charged thereunder because the evidence of eyewitnesses Ram Chandra and Sri Ram, which we have accepted in relation to them, shows that in furtherance of their common intention they assaulted the deceased and the said evidence has been put to them under section 313 Cr.P.C.

We are fortified in our view by the ratio laid down by the Supreme Court in the case of B.N. Srikantiah v. Mysore State, AIR 1958 SC 672. wherein in paragraph 9 the Supreme Court has observed thus :

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

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. Mukul Rakesh, learned Counsel for the appellants.

Firstly, Mr. Mukul Rakesh contended that the very basis of the prosecution case that the informant and the deceased Shiv Karan had gone to the place of Putti Lal (PW2) to get the khurpas sharpened has not been proved beyond reasonable doubt. He contended that .the informant Ram Chander in his crossexamination (in para 28) admitted that after the incident he left the khurpas on the place of the incident. He also contended that the Investigating Officer S.I. Mukesh Chand Tripathi in his crossexamination (in para 17) admitted that he did not find any khurpas on the place of the incident. He urged that this shows that the story put forward by Ram Chander that he and Shiv Karan had gone to get khurpas sharpened is a cooked up one and once the said story becomes unacceptable, then the presence of informant and Shiv Karan on the place of the incident also becomes unacceptable.

We have given our anxious consideration to this submission and in our view merely on this ground it cannot be said that the informant and Shiv Karan did not go to get khurpus sharpened to the house of Putti Lal where the incident took place. It is significant to point out that the corpse of the deceased was found there; blood was found there, and empties of cartridges and ticklies were found there. We may also mention that it is not the case of defence that Shiv Karan was murdered somewhere else and his body was brought to the Putti Lat''s house. As regards the nonfinding of the khurpas by the Investigating Officer, the evidence shows that a number of persons had seen the incident and some had come to the place of incident after it was over. It may be that some amongst them may have taken the khurpas of the informant and Shiv Karan. Hence, this submission fails.

Secondly, Mr. Mukul Rakesh contended that the appellants had equal enmity with the informant and had he been present on the place of incident he could not have escaped without injuries. In his contention, the absence of injury on his person belies his presence.

We have examined this submission and are constrained to observe that it is based on a wrong premise. In paragraph 4 we have set out the enmity between the informant and deceased on one side and the appellants on the other under (a) to (d). A perusal of (a) to (d) would show that the appellants had greater enmity with Shiv Karan. It was he on whose insistence case pertaining to land was filed in the High Court (the said case was pending at the time of the incident). Between the informant and him, Shiv Karan was the elder brother. In these circumstances, it appears that the appellants had greater grudge against Shiv Karan and consequently murdered him. The mere fact that the informant was not injured would certainly not render his presence doubtful. Hence, this submission also fails.

Thirdly, Mr. Mukul Rakesh contended that Putti Lal (P.W.2) should have been declared hostile by the prosecution and since the prosecution did not declare him hostile the prosecution case as unfolded by Ram Chander and Sri Ram which is at variance with that as unfolded by him should not be accepted.

We have reflected over the said submission. In our view, it cannot be said that Putti Lal had become hostile. We have seen that he had named five of the appellants and attributed the specific over act of firing on the deceased to appellant Bodil. We have also seen that he was firm on the time of incident that the incident took place at his house and presence of the informant, deceased and Sri Ram at his house at the time of the incident. In these circumstances, we feel that prosecution cannot be faulted for not declaring Putti Lal hostile. Hence, this submission also fails.

Fourthly, Mr. Mukul Rakesh contended that the informant in his crossexamination (in paragraph 24) has admitted that in his proximity there were a number of houses. He urged that had the incident taken place at the house of Putti Lal, as alleged by the prosecution, some of the said persons would have seen the same. He also contended that according to the informant himself Mathura, Dularey and others had seen the incident. He submitted that'' in these circumstances since the prosecution only examined two interested witnesses, namely, Ram Chander (PW 1) and Sri Ram (PW 4) an adverse inference should be drawn against it.

We have examined the said submission and in our view, the prosecution case would not stand discredited for the said reason because the same stands established from the credible ocular account furnished by the informant Ram Chander (PW 1) and Sri Ram (PW 4). Since these witnesses were interested we have exercised caution and held that it would not be safe to accept their testimony vizaviz. appellants Jagdish, Rameshwar, Kunjan and Sobaran. Hence, this submission also falls.

Fifthly, Mr. Mukul Rakesh contended that the time of the incident alleged by the prosecution, i.e. 7.00 P.M. does not appeal to be correct. He invited our attention to the autopsy report which showed the presence of one ounce of solid food rice in the stomach of the deceased and to the evidence of informant, who stated that on the date of the incident the deceased had eaten in the afternoon:

It is pertinent to mention that the autopsy surgeon Dr. N.A. Khan was examined as PW 5 and in his crossexamination stated that the death of deceased took place between half an hour and two and a half hours of his taking food. In other words, the death of the deceased could have taken place at about 4.30 P.M. Rustic witnesses don''t have a chronometric sense of time and we should not accept with mathematical accuracy when Ram Chander said that the incident took place at about 7.00 P.M. or the deceased took food in the afternoon. Apart from it, it may be that about 4.00 P.M. or 4.30 P.M. may be afternoon in his comprehension. At any rate, in our view, nothing would turn on this circumstance in view of the credible account furnished by Ram Chander and Sri Ram.

Finally, Mr. Mukul Rakesh contended that after the learned Trial Judge found the appellants guilty, he should have called upon to them to enter into their defence and to adduce evidence in their defence in terms of section 232 Cr.P.C. He urged that invariably the last question put to the accused in his statement under section 313 Cr.P.C. is whether he wants to give evidence in defence. He urged that the failure on the part of the learned Trial Judge to put this question and to comply with the provisions contained in section 232 Cr.P.C. would vitiate the convictions of the appellants. To lend force to his submission, he invited our attention to the decision of a Division Bench of Kerala High Court rendered in the case of Parameswara Kurup Janardhanan Pillai v. State of Kerala, 1982Cri LJ 899 (Ker). A perusal of para 7 of the said decision shows that since accused was not called upon to lead evidence in his defence, the Kerala High Court remanded the case for retrial from the stage of section 233 Cr.P.C. after setting aside his conviction and sentence.

However, in this case, we find that the submission of Mr. Mukul Rakesh is misconceived. It is true that the customary last question, namely, whether the appellants wanted to lead evidence in their defence, was not put to, them, but a perusal of the ordersheet of the Trial Court shows that sufficient opportunity was given to them to adduce defence and to lead evidence in support of the defence. In this connection, it would be necessary to advert to the ordersheet, dated 7.3.1980, 20.3.1980 and 25.3.1980. The ordersheet dated 7.3.1980 shows : Case called out; statements of accused taken; arguments heard; accused to enter into defence; and 20.3.1980 fixed for defence and arguments. The ordersheet dated 20.3.1980 and 25.3.1980 shows that appellants Bodil, Basant, Gajraj and Lakshmi Narain did not adduce any defence. In our view, the provisions contained in section 233 Cr.P.C. have been complied with in substance and no prejudice has been caused to the appellants merely because in their statements under section 313 Cr.P.C. they were not questioned whether they would like to give defence and lead evidence in their defence.

For the said reasons we reject this submission.

In the result:

(A) Criminal Appeal No. 237 of 1980 : Appellants Rameshwar, Kunjan and Jagdish are acquitted on all the counts. Their convictions and sentences thereunder are set aside. They are on bail. They need not surrender. Their bail bonds stand cancelled and sureties discharged.

Appellant Lakshmi Narain is acquitted for the offence punishable under Sections 148 I.P.C. and 324 I.P.C. His conviction and sentences thereunder are set aside. His conviction for the offence punishable under section 302/149 I.P.C. is altered to one under section 302/34 I.P.C. and his sentence of imprisonment for life is maintained. He is on bail and shall be taken into custody forthwith to serve out his sentence.

(B) Criminal Appeal No. 295 of 1980 : This appeal .is allowed.

Appellant Sobaran is acquitted on all the counts. His convictions and sentences thereunder are set aside. He is on bail. He need not surrender. His bail bonds stand cancelled and sureties discharged.

(C) Criminal Appeal No. 352 of 1980 :

The conviction of appellants Bodil, Basant and Gajraj for the offence punishable under section 148 I.P.C. is set aside. They are acquitted thereunder. The conviction of appellant Bodil for the offence punishable under section 324/149 I.P.C. and that of appellants Basant and Gajraj for the offence punishable under section 324 I.P.C. is also set aside. They are acquitted thereunder. The conviction of appellants Bodil, Basant and Gajraj for the offence punishable under section 302/149 I.P.C. is altered to one under section 302/34 I.P.C. and their sentence of imprisonment for life is maintained. They are on bail and shall be taken into custody forthwith to serve out their sentences.

(D) Criminal Appeal No. 568 of 1980 : This appeal preferred by appellant Basant from jail is decided in terms of our judgment in Criminal Appeal No. 352 of 1980.

(E) Criminal Appeal No. 794 of 1980: This appeal preferred by appellant Gajraj from jail is decided in terms of our judgment in Criminal Appeal No. 352 of 1980.