JUDGMENT 1. - The appeal is directed against the judgment of the learned Additional Sessions Judge, Sirohi dated August 25, 1981 convicting and sentencing the three appellants as under: S. No. Name of accused Offence under Section Sentence awarded (1) Dilbag Singh 302, Indian Penal Code Imprisonment for life and a fine of Rs. 200/-; 326, Indian Penal Code Rigorous imprisonment for three years and a fine of Rs. 100/-; 324, Indian Penal Code Two year's rigorous imprisonment; 25, Arms Act Six month's RI; 27, Arms Act One year's RI; (2) Smt. Dilip Kaur 326/34, Indian Penal Code Three year's rigorous imprisonment and a fine of Rs. 100/-; (3) Chhinderpal Singh 326/34, Indian Penal Code Three year's rigorous imprisonment and a fine of Rs. 100/-.; 323, Indian Penal Code Two month's rigorous imprisonment. 2. Briefly stated, the prosecution case is that the deceased-victim Uma was the brother of PW 4 Soniya and son of PW 27 Tola. Tola has some more sons. They all were living jointly in village Bharundha PS Sumerpur Dist. Pali. They and some persons own a "Bera" (well) with agricultural lands. Accused Dilbag Singh purchased a few fields of this Bera from some of the joint owners (other than the aforesaid persons) and was cultivating them. This led to disputes between Tola and the accused, resulting in civil and criminal litigations between them. Accused Dilbag Singh along with his wife Smt. Dilip Kaur and son Chhinderpal Singh was also living in village Bharunda in a house which he had taken on rent from PW 15 Ganga Singh.3. At about 7.00 or 7.30 p.m. on March 14, 1979, PW 4 Soniya and his deceased brother Uma were returning to their house. Soniya was a few steps ahead of Uma. When they happened to pass out side the house of the appellants, the appellants caught hold of Uma and forcibly took him in their house. Soniya rushed to his house and informed his father and brothers. A few gun shots were heard from the house of the accused persons. Many persons collected there. Soniya, his father Tola, his brothers Chimna and Tima came to the house of the accused and found its door bolted from inside PW 2 Galba climbed ever the wall of the house of Pukhraj. A few gun shots were heard from the house of the accused persons. Many persons collected there. Soniya, his father Tola, his brothers Chimna and Tima came to the house of the accused and found its door bolted from inside PW 2 Galba climbed ever the wall of the house of Pukhraj. A shot was fired at him from the house of the accused, as a result of which Galba sustained injuries and he fell down. Many persons collected out-side the house of the accused. After some time, the doors of the accused's house were opened and the appellants came out. Accused Dilbag Singh and Chhinderpal Singh, some how or other, managed to escape. While escaping, accused Dilbag Singh fired a shot from his gun, which hit PW 3 Dwarka Das who was sitting on the Chabutari of a temple situate nearby the house of the accused. Accused Smt. Dilip Kaur, however, could not escape and she was detained by those who were present in the street. She was given a beating by thee persons. Soniya, Tola and others found that Uma was lying dead in the house of the appellants. Tola went to Police Station, Sumerpur and verbally lodged report Ex. P 29 of the incident at about 00.15 a m. on March 15, 1979, that is to say, within a few hours of the incident. The police registered a case under Sections 302, 307 etc. of the Penal Code and proceeded with investigation The Station House Officer Harisingh (PW 35) arrived on the spot, inspected the site and prepared site plan Ex. P 10. He also prepared the inquest of the victim's dead body. On the scene of the occurrence he found bloodstained soil, fired and live cartridges, pellet, wads and some other articles. He seized and sealed them. The post-mortem examination of the victim's dead body was conducted at about 1.30 p.m. on March 15, 1979 by PW 30 Dr. B.S. Deora. He found as many as 14 ante-mortem injuries on the victim's deadbody, as described in the post-mortem examination report Ex. P 31. In the opinion of Dr. Deora, the cause of the death was syncope due to extensive haemorrhage, asphyxia, due to internal haemorrhage in right side of lung and shrinking of right lung- caused by penetrating gun-shot wounds on right side of chest (injury No. 14 of chest). P 31. In the opinion of Dr. Deora, the cause of the death was syncope due to extensive haemorrhage, asphyxia, due to internal haemorrhage in right side of lung and shrinking of right lung- caused by penetrating gun-shot wounds on right side of chest (injury No. 14 of chest). He was further of the opinion that injury No. 14, 2(3), 2(4), 2(5) and 3 were caused by gun shots while the rest were caused by some blunt object like lathi. Injury No. 14 was found sufficient in the ordinary course of nature to cause death.4. Dr. Deora further examined the injuries of PW 3 Dwarka Das. He found two injuries which could be caused by a gun shot. The injury report prepared by him is Ex. P 5 Dr. Deora also examined the injuries on the person of PW 7 Chamna and found two lacerated wounds caused by some blunt object like lathi. Both were simple. The injury report issued by him is Ex. P 13. The injuries of PW 2 Galba were examined on March 15, 1979 by PW 1 Dr. Barmera. He noticed as many as ten injuries on his person, all of which were caused by gun-shot. On X-ray examination, five fractures were detected. The injury report issued by him is Ex. P 2. The appellants were arrested and in consequence of the informations furnished by accused Dilbag Singh, gun was recovered. On scientific examination, the empty cartridges collected on the spot were found to have been fired from the gun recovered from and at the instance of accused Dilbag Singh. After when the investigation was over, the police presented a crime report against the three accused Dilbag Singh, Smt. Dilip Kaur and Chhinderpal Singh in the Court of Munsif cum Judicial Magistrate, Bali, who, in his turn, committed the case for trial to the Court of Sessions. The learded Sessions Judge framed charges under Sections 364, 302, 307, 323/34, Indian Penal Code and Sections 25 and 27 of the Arms Act against accused Dilbag Singh and under Sections 364, 302/34, 307/34 and 323/34, Indian Penal Code against accused Smt. Dilip Kaur and Chhinderpal Singh, The accused pleaded not guilty and faced the trial. In their statements recorded under Section 313, Cr. PC, a counter version of the incident was advanced by them. In their statements recorded under Section 313, Cr. PC, a counter version of the incident was advanced by them. According to them, the deceased Uma, his father and brothers and some other persons entered their house and made an assault on them, causing numerous injuries to all of them. They also fired shots at them (accused persons). The police had presented only a lope sided and truncated version supressing the real facts. On the conclusion of the trial, the learned Sessions Judge accepted the prosecution story as substantially true and held that the gun was fired by accused Dilbag Singh. He, however, held that accused Smt. Dilip Kaur and Chinderpal Singh could not be convicted under Section 302 with the aid of section 34, Indian Penal Code. He also took the view that though Uma was forcibly dragged inside their house by the appellants, it did not amount to an offence under Section 364, Indian Penal Code. He further took the view that as the accused Dilbag Singh was being convicted under Section 302, Indian Penal Code, even if the offence under Section 364, Indian Penal Code was made out against him, it was not necessary to convict him for the offence of abduction. The appellants were consequently convicted and sentenced as mentioned at the very out-set. Aggrieved against their convictions, the accused have taken this appeal.5. We have heard Mr. M.L. Garg learned Counsel for the appellants and the learned Public Prosecutor. We have also gone through the case file carefully.6. Mr. Garg did not challenge the medical opinions of PW 1 Dr. Barmera and PW 30 Dr. Deora regarding the cause of death of Uma and the number and nature of the injuries found on the injured victims Chamna, Galba and Dwarka Das We, therefore, need not touch the medical evidence. Suffice it to say that the death of as Uma was homicidal caused by gun shot injuries Some of the injuries of PW 2 Galba were grevious. The injuries of the other injured victimes were simple.7. In assailing the conviction of the appellants, Mr. Garg raised the following contentions: (1) Accused Dilbag Singh was wrogly convicted under Section 302, Indian Penal Code. The injuries of the other injured victimes were simple.7. In assailing the conviction of the appellants, Mr. Garg raised the following contentions: (1) Accused Dilbag Singh was wrogly convicted under Section 302, Indian Penal Code. None of the prosecution witnesses stated that it was he who had fired the shot at Uma and thereby caused his death; (2) Accused Dilbag Singh was also wrongly convicted under Section 307, Indian Penal Code in respect of the injuries caused to PW 2 Galba by a gun shot. There was again no evidence to show that it was accused Dilbag Singh who had fired shot at Galba; (3) The counter version put forward by the appellants was wrongly rejected by the Court below Numberous injuries were found on the person of accused Dilbag Singh and Smt. Dilip Kaur. The prosecution has not furnished any acceptable explanation as to how injuries were sustained by them. The explanation that the injuries of accused Dilbag Singh were superficial, was false. So also, the explanation that Smt. Dilip Kaur was beaten by the villagers who had collected on (he spot by hearing the gun-shot, is false. The presence of the injuries on these two appellants strongly probablises the counter version that it was the complainant party who had intruded in their (accused persons') house and assaulted them. The court below did not take this aspect into consideration and abruptly held that no right of private defence was available to the appellants. 8. Looking to the contentions, it would be proper to fake them at seriatim.9. In our opinion, the first and the foremost fact in issue which requires serious consideration is whether the deceased Uma was dragged in their house by the appellants. If this fact is found in favour of the prosecution, it completely dislodges the counter version advanced by the appellants. The prosecution case is that in the evening of the day of the incident, the deceased Uma and his brother Soniya (PW 4) were returning to their house after seeing the "Gair" (folk dance on the occasion of Holi festival). When they happened to pass out-side the house of the accused, the accused caught hold of Uma and dragged him inside their house. When they happened to pass out-side the house of the accused, the accused caught hold of Uma and dragged him inside their house. Soniya (PW 4), who was a few yards ahead of Uma, on seeing his brother Uma being taken and dragged by the accused, rushed to his house and informed his father and brothers about the fact. The prosecution has examined PW 4 Soniya and PW 24 Smt. Kastoor, Kumbhar to prove (his clinching issue. PW 4 Soniya testified the above fact on oath and stated that while he and Uma were returning from the Gair, they happened to pass out-side the house of the accused. He was a few yards ahead of Uma The accused caught hold of Uma and dragged him into their house. PW 24 Smt. Kastoor Kmubhkar has also stated the same facts. Her house is situate just in front of the house of the appellants, as shown in site plan Ex. P 10. She deposed that in the evening of the day of the incident, she came out of her house to throw dirty water. She saw the appellants catching hold of Uma and forcibly taking and dragging him in their house. She got frightened and retreated in her house. Thereafter she heard some gun shots Many persons collected out-side in the street. Both these witnesses were cross-examined at length, but nothing could be elicited from them which may discredit and render doubtful what they testified on oath. PW 24 Smt. Kastoor Kumbhkar is an independent witness and no convincing reasons were subscribed before us to show that she was falsely introduced or was a planted witness. She was not averse to the appellants nor had a soft corner for the deceased. In defence, the accused examined PW 1 Birad Singh, who stated that the deceased Uma and his brothers Tima and Chimna (PW 7) went to the accused's house Tima was having a gun and the others had lathies. Tima fired the shots. We have gone through the testimony of this witness and find his testimony worthy of no credence. Fired cartridges were found on the scene of the occurrence and as we will lateron discuss, these cartridges were fired from the gun recovered from the accused Dilbag Singh. That makes the testimony of DW 1 Birad Singh absolutely incredible. We have gone through the testimony of this witness and find his testimony worthy of no credence. Fired cartridges were found on the scene of the occurrence and as we will lateron discuss, these cartridges were fired from the gun recovered from the accused Dilbag Singh. That makes the testimony of DW 1 Birad Singh absolutely incredible. The proved position is, therefore, that while the deceased and PW 4 Soniya were returning to their house, the appellants caught hold of the deceased and forcibly took him in their house, where he was shot dead.10. Taking the first contention of Mr. Garg, it was argued that there is absolutely so evidence to prove the fact that inside the house of the appellants it was accused Dilbag Singh who had fired the shot. There were three persons (accused) inside the house and the possibility of any of them firing the shot cannot be ruled out. Unless there is cogent and convincing material on record to show that it was accused Dilbag Singh who had fired the shot at Uma and thereby caused his death, accused Dilbag Singh cannot be held guilty under Section 302, Indian Penal Code. The possibility that any of the remaining two accused could fire the shot is consistently there. Unless this possibility stands eliminated, accused Dilbag Singh should not be held guilty under Section 302, Indian Penal Code. In support of the contention, reliance was placed on Raidania v State (1953 RLW 338) We have given our anxious consideration to the contention and find no substance in it. PW 5 Jiwan Das and PW 6 Sawaiya Nai stated that when the three accused came out, it was the accused Dilbag Singh who was having a gun with him. PW 6 Sawaiya Nai further deposed that after when the three accused came out of their house, accused Dilbag Singh fired the gun which hit Dwarka Das (PW 3). Now, accused Chhinderpal Singh was arrested on March 15, 1979 vide arrest memo Ex. P 20. His age has been shown therein to be of 12/13 years. It is difficult that a boy of 12/13 years would be able to effectively handle the gun and fire shots. Accused Smt. Dilip Kaur is a woman. It is again difficult to conceive that she could handle the gun and use it effectively. P 20. His age has been shown therein to be of 12/13 years. It is difficult that a boy of 12/13 years would be able to effectively handle the gun and fire shots. Accused Smt. Dilip Kaur is a woman. It is again difficult to conceive that she could handle the gun and use it effectively. The possibility of these two accused one of whom is a boy of 12/13 years and the other is a woman, firing the gun stands completely excluded and eliminated. It is, thus the remaining third i.e. the accused Dilbag Singh who alone could effectively use the gun and fire the shots. The testimony of PW 5 Jiwan Das and PW 6 Sawaiya at is above board and free from suspicion. They have no reasons to falsely depose against the appellant Dilbag Singh. They had seen him with the gun and one of them had seen him firing the shot which hit PW 3 Dwarka Das.11. Accused Dilbag Singh was arrested on the next day of the incident. In consequence of the information furnished by him and recorded in Ex. P 46, gun (Article 2) along with live cartridges, etc., were recovered. The opinion of the Ballistic Expert is that the empty cartridges found on the scene of the occurrence were fired from the gun (Article 2) recovered from the possession of the accused Dilbag Singh. All these facts and circumstances along with the evidence of PW 5 Jiwan Das and PW 6 Sawaiya Nai, are sufficient to prove that it was accused Dilbag Singh who had fired shots at Uma and killed him. The first contention of Mr. Garg, thus, fails.12. As regards the second contention that accused Dilbag Singh was wrongly convicted under Section 307 Indian Penal Code for causing gun shot injuries to PW 2 Galba, it was argued by Mr. Garg that there is again no evidence to show that PW 2 Galba was fired at by accused Dilbag Singh. It was argued that Galba (PW 2) himself did not state that he was fired at by accused Dilbag Singh. We are unable to accept the contention of the learned Counsel. It is true that Galba (PW 2) did not state that he was fired-at by accused Dilbag Singh. It was argued that Galba (PW 2) himself did not state that he was fired at by accused Dilbag Singh. We are unable to accept the contention of the learned Counsel. It is true that Galba (PW 2) did not state that he was fired-at by accused Dilbag Singh. The reason is that when Galba (PW 2) climbed over the wall to see that was taking place inside the house of the appellants, he was fired at. But he could not see who fired the shot. We have held above that gun could be used only by accused Dilbag Singh and could not be used by his wife or the minor son Naturally, therefore, the inference would be that it was accused Dilbag Singh who had fired shot at Galba (PW 2) and thereby caused numerous injuries four or five of which were fractures.13. In Raidania's case (supra) there were six persons in the sugar-cane field and the shot was fired from the sugar-cane field. When the miscreants came out of the field, a gun was seen in the hands of Raidania. Since any of six miscreants could use the gun from the field of the sugar-cane, it was held that the possibility of any of them firing the gun could not be completely ruled out. Here the position in the instant case is quite different. As discussed earlier, the other two accused Chhinderpal Singh and Smt. Dilip Kaur could not use the gun. The possibility of their firing the gun stands excluded and ruled out. If this possibility is ruled out, as has been ruled out by us, then it is only the accused Dilbag Singh who had used the gun and fired it. Accused Dilbag Singh was thus, rightly held guilty under Section 307, Indian Penal Code for his causing injuries to PW 2 Galba by a gun shot.14. There is then other material to show that the shots were fired by accused Dilbagh Singh. He was arrested on March 15, 1979 vide arrest memo Ex. P 19. The Investigating Officer Hari Singh (PW 35) deposed that after his arrest, accused Dilbag Singh made a disclosure statement which he reported in Ex. P 46. In pursuance to this information, accused Dilbag Singh got the gun (Article 2) recovered. This gun was properly seized and sealed. He was arrested on March 15, 1979 vide arrest memo Ex. P 19. The Investigating Officer Hari Singh (PW 35) deposed that after his arrest, accused Dilbag Singh made a disclosure statement which he reported in Ex. P 46. In pursuance to this information, accused Dilbag Singh got the gun (Article 2) recovered. This gun was properly seized and sealed. The Investigating Officer further stated that when he inspected the site on March 15, 1979, he found three empty cartridge cases (Articles 7, 8 and 9) lying there. Each of them was separately sealed. The site inspection note Ex P 8 also shows that the three empty cartridge cases were found on the spot and each was separately sealed and packets were marked 'B', 'B1' and 'B2'. The recovered gun and these empty cartridges were sent to the State Forensic Science Laboratory, Rajasthan Jaipur for examination. Report Ex. P 53 was received from the Laboratory. As per findings recorded in Ex. P 53, the empty cartridge cases found on the spot were fired from the gun recovered at the instance of the accused Dilbag Singh. It was, thus, accused Dilbag Singh who alone had fired the shots from the gun (Article 2).15. The last contention of Mr. Garg is that the counter version advanced by the appellants was wrongly rejected by the trial Court. It was argued that numerous injuries were found on the person of the accused Dilbag Singh and his wife Smt. Dilip Kaur. The prosecution has furnished no satisfactory explanation as to how injuries were caused to them. The explanation (hat the injuries of Dilbag Singh were superficial and Smt. Dilip Kaur was beaten by the villagers, who had collected on the spot, is wholly false and does not stand to reason PW 7 Chimna, who is a brother of the deceased-victim Uma stated that when he reached the spot, he heard shots being fired inside the house of the accused persons. The accused came out and started running. Accused Smt. Dilip Kaur could not run fast and lagged behind. She was caught hold of by him and he struck blows to her because the appellants had killed his brother Uma. This explanation does not appear to be wrong. The accused came out and started running. Accused Smt. Dilip Kaur could not run fast and lagged behind. She was caught hold of by him and he struck blows to her because the appellants had killed his brother Uma. This explanation does not appear to be wrong. It appears that when the appellants came out of their house after Uma was gunned down, the deceased's brothers and the other villagers, who had collected in the street, could not contain themselves and gave beating to the accused Dilbag Singh and Smt. Dilip Kaur. When a person is gunned down, it is quite natural on the part of his relatives and the villagers to go hot headed and give beatings to the assailants. The mere presence of injuries on the person of these two accused is not sufficient to establish the counter version put forward by them in their defence. We have held above that the appellants had caught hold of the deceased Uma and forcibly dragged him inside their house where he was killed. In view of this finding, the counter version of the incident, stated by the appellants, has no stand.16. For the reasons discussed above, we find no force in this appeal. The appellants were rightly convicted. No interference in their conviction is called for.17. Accused Chhinderpal Singh was a boy of 11/12 years in age at the time of the incident. Accused Smt. Dilip Kaur is a woman. They are on bail. The offence was committed long back in 1979. It would not be proper now to re-send them to jail after a lapse of 6/7 years. It would, therefore, be not improper to reduce their sentence to the period already undergone by them.18. In the result: (1) the appeal of accused Dilbag Singh is dismissed. His convictions and sentences for the various offences are maintained; and (2) the appeal of accused Chhinderpal Singh and Smt. Dilip Kaur is partly allowed. While maintaining their convictions under Sections 326/34 and 323, Indian Penal Code, the sentence of three years rigorous imprisonment is reduced to the period of detention already undergone by them during investigation, inquiry and trial. They are already on bail and need not surrender. Their bail bonds shall stand cancelled. 19. The appeal is disposed of accordingly.Order accordingly. *******