V. P. MATHUR, J. ( 1 ) THIS appeal is directed against the judgment and order passed on 29/11/1978 by Mr. N. B. Asthana, the then IV Additional Sessions Judge, Bulandshahr. Appellants Nepal Singh, Leela and Mahavir Singh have been convicted under sections 147 and 307/ 149; IPC and each one of them has been sentenced to one years rigorous imprisonment on the first count and to five years rigorous imprisonment on the second. Similarly Udaivir Singh and Ram Chandra have been convicted under sections 148 and 307/149 IPC and sentenced to rigorous imprisonment for 11/2 years each on the first charge and to five years rigorous imprisonment on the second charge. The order was passed in Criminal Sessions Trial No. 367 of 1974. All the sentences of each of the accused have been made concurrent. ( 2 ) THERE was a sixth accused also namely. Man Singh, who died during the pendency of the trial and therefore the case against him was dropped. ( 3 ) THE prosecution story is that Udaivir Singh Ram Chandra and Man Singh (since deceased) were armed with guns and which they used on the spot, while Mahavir Singh, Leela and Nepal Singh were armed with lathis and they all (six in number) emerged out of the Gher of Nepal Singh which happens to be just in front or the ahata of the injured P. W. 1 Charan Singh, who is the complainant of the case. ( 4 ) IN the first information report, no mention of any previous enmity has been made, but in the evidence which has been brought on the record and which has been partly admitted vide, the statement of Mahabir Singh in reply to questions Nos. 1, 3 and 11, the facts are that Charan Singh had lodged a report with the police against Mahavir Singh and Panna about the theft of his radio- set from his tube-well. A case had been registered and was proceeding when the present occurrence took place. It appears that subsequently Mahavir Singh and Panna faced the trial and were perhaps acquitted, as per the statement or Mahavir Singh. It has not been disputed by Charan Singh inspite of a definite question put to him in this respect. Anyway according to Charan Singh this was the intermediate cause for the present occurrence. These six accused persons named above at about 6. It has not been disputed by Charan Singh inspite of a definite question put to him in this respect. Anyway according to Charan Singh this was the intermediate cause for the present occurrence. These six accused persons named above at about 6. 45 p. m. on 11/7/1973 emerged out of the Gher of Nepal Singh, variously armed as mentioned above. At that time Charan Singh was standing of the door of his ahata. The occurrence took place in village-Badhpura, P. S. Anupshahr of district Bulandshahr. Mahavir Singh immediately accosted Charan Singh (P. W. 1) and gave out that he will not allow him to have the theft case decided in his favour and they decided to put an end to his life. With this challenge, almost simultaneously Ram Chandra, Udaivir Singh and Man Singh (since deceased) fired with their guns towards Charan Singh. He received injuries on his chest and thigh took a turn and tried to run inside his ahata, but he was again fired upon and this time shots hit him on the back of his chest. He raised a hue and cry and fell down. A number of witnesses namely Bahori, Karan Singh and others came on the spot. But the accused persons re-entered the Gher of Nepal Singh and made good their escape through it. Charan Singh dictated the first information report Ext. Ka-l to Leela. But his condition was had and therefore Leela alongwith one Man Singh took him to the District Hospital at Bulandshahr for medical examination and treatment. At 11. 30 p. m. Dr. K. C. Tandon (P. W. 3) examined him for his injuries. He was found having gun shot wound in an area of 11/2 cm. x cm on the chest cavity on the front of the chest towards the right side at 12 Oclock position to the right nipple. The depth was not probed. He had another gun shot wound in an area of 1 cm x 1 cm x muscle deep on the outer aspect of the right thigh in the upper 1/3rd part. There were three gun shot wounds on the back of chest on the right side of the scapular region each 11/2 cm x 1 cm and 1 cm x 1 cm and 1 cm x 1 cm, each being muscle deep covering a total area of about 10 cm x 2 cm. There were three gun shot wounds on the back of chest on the right side of the scapular region each 11/2 cm x 1 cm and 1 cm x 1 cm and 1 cm x 1 cm, each being muscle deep covering a total area of about 10 cm x 2 cm. There was another gun shot wound of 1 cm x 1 cm of which cavity was not probed on the right of the back just above the crest of iliac. All these injuries were of entry because they had inverted margin. They were caused by fire-arms. They were kept under observation and X-ray was advised and in the opinion of the doctor, they were fresh and could have been inflicted the same day at about 6. 45 p. m. The injury report is Ext. Ka. 2. After the examination of the injuries, Leela Singh alongwith Man Singh witness went to the police station at Anupshahr and lodged the first information report. Then the investigation started. ( 5 ) THE two witnesses who furnished ocular testimony, are Charan Singh (P. W. 1) and Bahorilal (P. W. 2 ). For very valid and good reasons, the learned Sessions Judge has disbelieved Bahorilal holding him to be an unreliable witness. This man now comes forward to speak that he had seen the occurrence. He had however, filed an affidavit earlier which was brought on the record and proved through four defence witnesses, wherein he had taken the stand that he was not present and had not seen any part of the occurrence. In any view of the matter that made him a thoroughly unreliable witness and he was rightly discarded. ( 6 ) THIS will leave for consideration only the testimony of Charan Singh (P. W. 1) injured. It is undoubted that as between Charan Singh on the one hand and the accused persons on the other, specially Mahavir Singh and his camp followers there was a previous enmity. According to Mahavir Singh, Charan Singh was responsible for the murder of his father and these accused persons suspected that he was the murderer. If that is a correct statement of fact, then the grouse must have been in the hearts of the accused appellants and not in the heart of Charan Singh and, therefore, there was no occasion for false implication of the present appellants at the hands of Charan Singh. If that is a correct statement of fact, then the grouse must have been in the hearts of the accused appellants and not in the heart of Charan Singh and, therefore, there was no occasion for false implication of the present appellants at the hands of Charan Singh. On the contrary Charan Singh states that his radio set had been stolen from his tube-well and he had lodged a report against Mahavir Singh and Panna. This fact is admitted to Mahavir Singh. It is also admitted that the case proceeded. It is not disputed that the case was proceeding when the present occurrence took place. It is a different matter that the case ended in acquittal. In any view of the matter, on the date of hs occurrence Mahavir Singh and his associates had ample reason to be angry with Charan Singh and coupled with the fact that they had a grouse against him for the alleged murder of Mahavir Singhs father, there was a strong motive for them to have committed this offence. Mahavir Singh and Leela are real brothers. Nepal Singh, Ram Chandra, Udaivir Singh and the deceased Man Singh are said to be the associates of Mahavir Singh. There is a mention of this fact in the testimony of Charan Singh and it is not disputed and denied. This being so, there is proof of strong motive for the accused-appellants to have committed this occurrence. ( 7 ) THE evidence on the record shows that Charan Singh did receive injuries as a result of firings. His testimony finds valuable corroboration from the medical examination report. The occurrence allegedly took place at about 6. 45 p. m. He was shifted to Bulandshahr which is quite far away from his village and in the District Hospital he was examined by Dr. K. C. Tandon (P. W. 3) at 11. 30 p. m. the same day and the injuries were found to be fresh and the doctor was of opinion that they could have been caused at about 6. 45 pm. the same day. K. C. Tandon (P. W. 3) at 11. 30 p. m. the same day and the injuries were found to be fresh and the doctor was of opinion that they could have been caused at about 6. 45 pm. the same day. ( 8 ) ACCORDING to Charan Singhs statement and the first information report, all the six culprits including the present appellants came out of the Gher of Nepal Singh together, variously armed- three with guns and three with lathies and after the commission of the offence, all of them together entered the Gher of Nepal Singh and ran away from there. There is evidence on the record to show that Mahavir Singh on seeing Charan Singh standing at the gate of his ahata, challenged him and gave out that he would be murdered, so that he might not get Mahavir Singh convicted in the radio-theft case. All the six accused including the present appellants stood at one place, from where the three persons armed with guns fired at Charan Singh and he after receiving the first volley of shots, turned towards his Gher and tried to run. He was fired again. The placing of the injuries according to the report of the doctor proves the fact that the injuries were sustained by him both on the front of the chest and thigh and also the back of his chest, and therefore, these were a result of firing twice. When three persons fired, it can not be said as to whose actual firing resulted in the injury. Each one of them will however be guilty of the same offence. The very fact that all the six accused including the present appellants came together and left the place together and remained together during the course of the incident, goes to show that they shared a common intention and they had definitely come on the spot variously armed with guns and lathis with the common objection of assaulting Charan Singh and teaching him a lesson. Some of them used criminal force. They will all; therefore, be guilty of rioting and section 147 will clearly be applicable to this case and the learned Sessions Judges conclusion to that effect is correct and has to be confirmed. Some of them used criminal force. They will all; therefore, be guilty of rioting and section 147 will clearly be applicable to this case and the learned Sessions Judges conclusion to that effect is correct and has to be confirmed. ( 9 ) THE question however remains as to whether it will be a case to be covered under section 307 of the I. P. C. The gauging of the intention of the accused will be necessary. Of course the first volley of the shots was fired by three person namely Man Singh (since deceased ). Udaivir Singh and Ram Chandra and had hit Charan Singh in his chest and thigh. Then second volley of the shots was fired by three persons when Charan Singh took a turn, and tried to run away and he was again hit with the pellets. It is his statement that on receiving the second volley of shots him fell down. Up to that time, there was nobody present to help him against the culprits and if the appellants so wanted they could have reached near him and done him to death immediately, specially when some of them were variously armed with guns and with lathis, but nothing like that was done. On the contrary they ran into Gher of Nepal Singh and escaped but of it. This only shows that the intention was not to kill. In my opinion therefore section 307 I. P. C. will not be attracted. It will be a case covered by sections 324 of the I. P. C. There is no supplementary medical report on the record. Even the doctor who entered the witness box has not said that although Charan Singh was kept under observation in the hospital any of his injuries were found to be grievous or dangerous to life. ( 10 ) IN this view of the matter I find Nepal Singh, Leela and Mahavir Singh guilty. Under sections 147 and 324/149 I. P. C. each and the remaining two appellants namely Udaivir Singh and Ram Chandra are found guilty of the offences punishable under sections 148 and 324/149 of the I. P. C. each. ( 10 ) IN this view of the matter I find Nepal Singh, Leela and Mahavir Singh guilty. Under sections 147 and 324/149 I. P. C. each and the remaining two appellants namely Udaivir Singh and Ram Chandra are found guilty of the offences punishable under sections 148 and 324/149 of the I. P. C. each. ( 11 ) BEFORE concluding the case, I may also mention that a joint application in the nature of compromise petition was filed before me by two of the accused namely Ram Chandra and Udaivir Singh and Devendra Singh son of Charan Singh. It was with the allegation that Charan Singh had died and Devendra Singh wanted to compound the offence. It was sent to the Magistrate concerned for making an enquiry about the death of Charan Singh and for finding out whether Devendra Singh was the legal representative, according to the provisions of the law entitled to enter into any compromise. The learned Magistrate has sent back the record after verifying the compromise with his report, which is to the effect that Devendra Singh was a minor of about 15 or 16 years of age. This finding is supported also by medical examination made by the Chief Medical Officer, whose report has also been appended. Under these circumstances, even if the case would have been compoundable with the permission of the Court. Devendra Singh was not competent to enter into any compromise, being a minor and hence is incapacitated. Therefore, this compromise is to be discarded, and the Court refuses to permit the compounding of the offences. ( 12 ) THE convictions of appellants Nepal Singh, Leela and Mahavir Singh under section 147 of the I. P. C. and of Udaivir Singh and Ram Chandra under section 148 of the I. P. C. as returned by the learned Additional Sessions Judge are upheld and confirmed, but the sentences awarded under section 147 I. P. C. are reduced to six months rigorous imprisonment and under section 148 I. P. C. to nine months rigorous imprisonment only. Instead of convicting the appellants under section 307/ 149 I. P. C. I alter their convictions to one under section 324 read with section 149 I. P. C. and to each one of them on this charge. I award a sentence of rigorous imprisonment for 11/2 years. Instead of convicting the appellants under section 307/ 149 I. P. C. I alter their convictions to one under section 324 read with section 149 I. P. C. and to each one of them on this charge. I award a sentence of rigorous imprisonment for 11/2 years. It is further ordered that the sentences in each case shall be concurrent. With this modification the appeal is disposed of. ( 13 ) THE appellants are on bail. Their bail bonds are cancelled and sureties are discharged. They shall surrender and be taken into custody forthwith to serve out their sentences. ( 14 ) THE record shall be transmitted forthwith to the Court below for further action in the matter. .