JUDGMENT Mr. G. Malaviya, J. - Appellant Akhtar and Sanud have been convicted by the VIIth, Addl. Sessions Judge, Meerut in Sessions Trial No. 637 of 1976 under section 302 Indian Penal Code and sentenced to life imprisonment. They have also been convicted under section 452 Indian Penal Code and have been awarded three year's rigorous imprisonment. 2. Briefly stated the prosecution case is that in village Laliyana Police Station Kithor there had been an election for the delegates on 6.9.1976 in which complainant Ashiq Ali along with his family members supported one Akhtar Hussain while Akhtar accused along with Samad and other accused persons supported one Sulema. There had also been some scuffle between two groups regarding theft of a she-buffalo about a year before this election. A day prior to the incident Akhtar nephew of complainant Ashiq All, was going to the jungle in a buggi. Accused Samad along with Shamshed, Yamin and Momin had forcibly tried to drag his buggi on the pretext that they would teach him a lesson for opposing their party. However on an intervention of Bashir, Aziz and others the buggi was returned. 3. It is in this background that on 13.9.1976 at about II a.m. accused Akhtar and Samad armed with guns, Shamshcd, Mohd. Yamin, Monun and Hamidullah armed with lath is entered the gher of the complainant and tried to drive away his cattle at that time the complainant along with his nephew and grandson Khalid, Waqil and Mumaffar was sitting under agoolar tree in his gher. One of his elder uncles, who had been operated, had also come from village Salai. All these persons were talking when the accused persons entered the gher and wanted to drive away their cattle. The complainant and his associates stood up Akhtar and Sa mad fired which hit his son Yamin and Munkad. Rest of the accused also assaulted them and injured Ezarand Muza ffar. Bricks werealso thrown by the complainant party in their self defence. The alarm raised by them attracted Sagair Muqim, Faizul, Abdul Aziz and others. After firing five or six rounds the accused escaped. Yamin was seriously injured with gunshot fires whereas injuries were also received by Ezaz, Mumtaz and Muza ffar. 4. Bricks werealso thrown by the complainant party in their self defence. The alarm raised by them attracted Sagair Muqim, Faizul, Abdul Aziz and others. After firing five or six rounds the accused escaped. Yamin was seriously injured with gunshot fires whereas injuries were also received by Ezaz, Mumtaz and Muza ffar. 4. A written First Information Report of the incident was prepared by Ashiq Ali which was lodged at Police Station Kithor the same day at 02.30 p.m. at a distance of seven miles when a case under section 307 Indian Penal Code was lodged and he was taken to P.L. Sharma Hospital, Meerut for medical examination where his medical examination was conducted by Dr. H.C. Varshni. The same doctor also examined the injuries of Ezaz Mumtaz and Muzaffar. Yamin later died in the P.L. Sharma Hospital itself. On the death of Yamin the case was converted under section 302 Indian Penal Code. 5. Investigation of this case was initially taken up by Sub Inspector Bhanu Pratap Singh which was ultimately completed by Sub-Inspector Chandra Pal Singh. After that charge sheet was submitted the accused were tried. 6. In the Sessions trial the prosecution examined Ashiq Ali P.W. 1 (complainant) Muzaffar, P.W. 2 (injured). Muzim, P.,W. 3 and Abdul Aziz, P.W. 4 as witnesses of tact. Dr.M.C. Va rshni who had conducted the medical examination of the victims was examined as P.W. 5. Dr. B.K Bhardwaj had conducted the post-mortem on the body of Yamin on 14.10.1976 at 2.10 p.m. and he was examined as P.W.12 in the Session Trial whereas the medical examination of Flat had revealed two abrasions and one contusion, that of Mumtaz one lacerated wound, post mortem examination of Yamin revealed the following injuries. 1. Swelling 5cm X 4cm on upper lower eyelids on right side with rapture of right eye ball. There is gun shot wound, 4cm X 5cm at 7 o'clock position with corresponding wound of entry of 4cm with perforation of 4cm X 4cm with interior hall of right orbit. 2. 10 gunshot wounds 2cm X 2cm X tissues of forehead right side of face. 3. 3 gun shot wounds 2cm X 2cm X tissues on front of right shoulder. 4. 4 gun shot wounds 2cm. X 2cm X tissues on front of right fore cars. In distal half and upper ?rd. No blackening was present on the wound. 2. 10 gunshot wounds 2cm X 2cm X tissues of forehead right side of face. 3. 3 gun shot wounds 2cm X 2cm X tissues on front of right shoulder. 4. 4 gun shot wounds 2cm. X 2cm X tissues on front of right fore cars. In distal half and upper ?rd. No blackening was present on the wound. 13 pallets (gun shot) were recovered from the body. 7. The internal examination revealed that the injuries had caused serious damage in the head region which had resulted in the death of Yamin. Considering the entire matter and after assessing the whole evidence on the record the learned Sessions Judge acquitted Shamsad, Mohammad, Yarnin, Mominand Hamidulla by observing that they were cm it led to benefit of doubt. The Sessions Judge also extended the benefit of doubt to accused Akhtar and Yamin under section 146 Indian Penal Code and Section 323 Indian Penal Code read with Section 149 Indian Penal Code, but convicted them under section 302 Indian Penal Code and 432 Indian Penal Code as has been mentioned in the beginning against which they have preferred the present appeal. 8. We have heard Sri G.S. Chaturvedi learned Counsel for the appellants as also Sri Shivji Mishra learned Counsel for the State. 9. In this case in order to substantiate the prosecution case P.,W.1 Ashiq All gave out the prosecution case. He said that there was an election of the delegates in his village about 2-1 /2 months prior to the incident in which he supported one party whereas the accused persons supported the other party. He also said that about one year therefore the incident the she-buffalo of the accused was stolen and in order to recover it they had to spent about Rs. 2(X)/for which they blamed his nephew Akhtar. It was further deposed by him that in this background when about 9 months out of which Akhtar and Samad were armed with guns and others were with lathis, suddenly appeared the, and declared that they should be killed and their cattle taken away. The accused armed with guns started firing and the rest started attacking with their lathis. Some also threw brick bats. A Samad accused climbed on the staircase of Kasir from where he went to his roof. He fired from his roof on Yaminand Mankad. The accused armed with guns started firing and the rest started attacking with their lathis. Some also threw brick bats. A Samad accused climbed on the staircase of Kasir from where he went to his roof. He fired from his roof on Yaminand Mankad. Akhtar went to the door of Bashir's haithak from where he too fired. In the assault injuries were caused to Ezaz, Muzaflar and the maximum injuries were a caused to Yamin. The alarm attracted Sagair, Faizal, Aziz and Mukim who intervened, when the accused left the place of the incident. Because of the injuries Yamin had fa licit oil the murder of Muzamma is roof. The report of the incident was got scribed by hint from one Masood Ahmad which he got read over and on which he placed his thumb impression and then lodged the same at the Police Station. In cross-examination this witness said that he was told at the Police Station that in case Yamin was immediately taken to Meerut hospital and his pellets removed he might survive with the result that he immediately went to Meerut along with Yamin on a tempo. However at Meerut the doctor declared him dead. They remained during the night at hospital at Meerut. Next day Yamin's post mortem was done, they returned to the village when the body was returned to them his funeral took place in the village on the same evening. He denied the suggestion that the report was lodged at the Police Station on the advice of the Sub Inspector of Police. This witness also disclosed in the cross examination that Yamin deceased used to live in village Talai with Banda who had sold his land to Yamin. He denied the suggestion that his other sons and brothers had told Yamin that since the entire property of their maternal uncle Bundu Khan of Salai had gone to him hence they would not give him any share in their village property. He also denied that there was any dispute between Yamin and his brothers and sons on this point. In the cross-examination this witness had also said that since it was the month of Ramzan hence the deceased had only been eating something in the early morning at Sahari, but no food had been taken by the deceased. He also denied that there was any dispute between Yamin and his brothers and sons on this point. In the cross-examination this witness had also said that since it was the month of Ramzan hence the deceased had only been eating something in the early morning at Sahari, but no food had been taken by the deceased. He also said that the accused were on the spot for about three minutes during which no person from the neighbourhood had come on the spot. He also said that none of the persons sitting in the gher received any pellet injury as they had taken recover-of the buggi. He also admitted in the ends examination that he had not seen mark of any pellets on the buggi etc. However he said that he had seen the pellet marks on the wall which had been taken out as also on the trunk of the goolar tree and oil file cot which was lying there. 10. P.W. 2 Musaflar who was injured supported the version of Ashiq Ali and said that Samad and Akhtar had both tired at Akhtarand Yamin from which Yamin died. In the cross examination he said that in all four or live shots were fired but no cattle received any pellet injuries. P.W.4 Mukim also gave out the similar version as was given out by P.W.2 Muzaffar. He also said that Aiaz and Munkad also threw brickbats on accused persons which the accused retreated. Then Akhtar stood in front of the baithak of Nasir and Samad accused went to roof from where they fired which hit Yamin who fell on the roof of Muzammil. In the cross examination he said that the Sub Inspector had not recorded his statement at all. P.W.4 Ariz said that on the day of the incident he was going on the rasta (way) when he saw the accused persons going towards the gher of Ashiq Ali. Akhtar and Samad had guts and rest had lathis. There were two other persons also whom he did not know. On reaching there the accused started abusing the complainant's party and said that the cattle of the complainant should he driven away. They also said that the complainant should be beaten. Thereafter lathis were wielded (Phir Danda Lathi Chal Pare). Yamin and Munkad threw brickbats from the roof then Akhtar and Samad fired towards them. On reaching there the accused started abusing the complainant's party and said that the cattle of the complainant should he driven away. They also said that the complainant should be beaten. Thereafter lathis were wielded (Phir Danda Lathi Chal Pare). Yamin and Munkad threw brickbats from the roof then Akhtar and Samad fired towards them. Yamin was hit by gun shot and tell on the roof. Lathi and danda were used by the accused persons. He did not know whether any injuries had been caused by lathi or darula or not. He had later on heard that two persons were injured. He did not know who were those two injured persons. He said that apart from him Mukim, Sagar and Faizul had also seen the incident when the shots were tired he was standing there. Hesaw accused running away. When the accused had run away he too gone away from that place. 11. The accused had denied their participation in the incident and had attributed their false implication in this case on account of enmity. Sri G.S. Chaturvedi appearing for the appellants has contended before us that in this case the evidence adduced by t he prosecution is note worthy of credence and should be rejected. He has also contended before us that so far as the injuries of Azaz, Mamtaz and Muzaffar are concerned they are too superficial and they have been manufactured by the prosecution to lend support to their case. His main contention seems to be that the incident had not taken place in the manner suggested by the prosecution. We will examine these arguments in seriatum. 12. Complainant Ashiq Ali was a natural witness inasmuch as the incident had taken place at his residence iron where the dead body of his on Yamin was found. It cannot, consequently, be believed that Ashiq Ali was not present on the spot.What Sri G.S. Chaturvedi has said about this witness is that he has not given the truthful version of the incident and this fact according to him would be confirmed when it is found that the witness had said that the present appellants had fired towards them but no pellet marks were found at all either on the tree or on the buggi or on the surrounding things by the Investigating Officer. He has referred to the cross examination where the witness had said that persons armed with guns fired on or two shots towards them who were sitting down below but none of them received any pellet injuries. He has also said that this witness could not really offer any real motive for the murderous assault made by the accused persons and the story of election rivalry between the delegates could have hardly constituted a motive for the appellants as if still Akhtar accused would have tried to take revenge on that score, he would have really assaulted Akhtar S/o Himayat who had contested the delegate's election against him. Similarly the contention of learned Counsel for the appellants is that the story of the she-buffalo missing about 7or8 months earlier was too remote and trivial an incident to have given any occasion to the accused persons to have committed this crime. As regards the injured witnesses Muzaffar P.W.2 he says that the single lacerated wound of a dimension of 0.5cm x 0.2cm. X skin deep on the left side was really not an injury caused by the appellants if at all this was a genuine injury but as the complainant party themselves admitted other brick hats which thrown by Yanun deceased and Munkad from the roof which could have caused these injuries. He has also stated that the cross examination of this witness reveals that 4 or 5 shots were fired but neither any pellets hit the cattle nor any pellet marks were found by the investigating officer which rendered his testimony also doubt fed, as he too has not given the truthful version of the entire incident. Similarly learned Counsel for the appellants says that in view of admission by P.W.3 in his cross examination that his statement had not been recorded by the investigating officer at all, the facts as given by this witness can also be hardly considered as reliable. However, learned Counsel also says that as has been admitted by complainant Ashiq Ali the house of this witness was at a distance of 400 yards. Learned Counsel also says that the evidence of P. W.4 can not be relied upon as he was a chance witness whose house was about 6 furlongs away as was admitted by the complainant. 13. Learned Counsel also says that the evidence of P. W.4 can not be relied upon as he was a chance witness whose house was about 6 furlongs away as was admitted by the complainant. 13. However, whatever be the criticism of these witnesses the fact cannot be lost sight of that in this incident Yamin had lost his life on account of the gun shot injuries. The complaint Want, even if he may be treated as an interested witness, cannot be presumed to he nominating the appellants falsely more so as the incident undisputedly was a day time incident when his presence on the spot cannot be doubted. We may also add heir that we are impressed with the tenors of the statements of P.W.4Aiiz. Although the complainant has admitted that this witness resided at a distance of about six furlongs yet this witness had stated that he was going from that side at the time of the incident when he saw all the accused persons nominated in the First Information Report going towards the house oft he complainant. He has also sated that Akhtar and Samad were armed wit h guns and the rest had lathis. Thereafter this wit mess in the examination-in-chief said that after coaching the gher of the complainant where some persons were sitting, the accused started quarrelling and calling bad names and said that their cattle should be taken away and they be beaten. On this the sticks started plying (Phir Danda Lathi Cha Pare) whereupon Yamin (deceased) and Munkad started pelting bricks and stones from the roof top. At that stay Akhtar and Samad fired towards them. Yanun received the fire and wound and fell on the roof. He, however, did not know whether any person had received any injuries from lathi or danda although he had later heard that the two persons had received injuries. He also said in his examination-in-chief that he did not know which two persons had received injuries. 14. Yanun received the fire and wound and fell on the roof. He, however, did not know whether any person had received any injuries from lathi or danda although he had later heard that the two persons had received injuries. He also said in his examination-in-chief that he did not know which two persons had received injuries. 14. From the statement of P.W. 4 it appears that he has given the correct sequence of the incident where apparently on account of the complainant party not supporting Akhtar accused in his election, the accused went to teach them some lesson by driving their cattle when lathis were also plied from both the sides and when stones started coming from the roof then in order to do away the stone pelting some one armed with gun fired towards the roof which caused injuries to Yamin who died because of the gun shot injuries. As a matter of fact it has come in the examination-in-chief of this witness as reproduced below that lathi danda started plying after some altercation " Uljiman Ne Gali Guftar Kee Aur Kaha Ki Mke Dhor Khol Lo Aur Salon ko Maro. Phir Danda lathi chal pare our Yamin our Munkad ke chhat se int patthar mare. Tab Akhtar our Samad Ne Unki Tara f Phayar Ki ya. Yamin Ko phayar ko chot Aayi our wah chhat par gir gaya." 15. This fact coupled with the statement of complainant P.W.1 in the examination-in chief that Abdul Samad went to the roof of his own house from the stairs of Nasir from where he fired establishes the fact that Abdul Samad definitely fired the shot. Although it has been alleged by all the witnesses that Akhta r had also fired a shot but from the injuries caused to Yanun we find that all the four gun shot wounds were in the region of his head and the right shoulder and arm which were shot from the roof top of the house of Samad towards the south o f t he house of complain apt should he a case of single shot alone. It, therefore appears to us that Samad alone had fired at Yamin, but since the complainant was admittedly inimical towards Akhtar accused, his name had also been added by the complaint and other witnesses. It, therefore appears to us that Samad alone had fired at Yamin, but since the complainant was admittedly inimical towards Akhtar accused, his name had also been added by the complaint and other witnesses. In arriving at this conclusion we are impressed by the fact that neither any pellet injuries were found on any person, cattle or even on any other object which really rules out the possibility of a second shot being fired by someone. 16. We have now to consider whether this individual act of Samad in firing from his gun canal so affect accused Akhtar. As discussed by us earlier, it does not appear that the accused persons had come to the spot with any other pre-conceived object except to drive away cattle. of the complainant by force. It was on account of some resistant that some lathis were wielded and when brick hats started coming from upside, Samad of his own climbed the roof top of his house from where he fired, killing Yarnin on the spot thus then: does not appear to be any meeting of mind in the shooting by Samad with other accused persons. Consequently it does not appear reasonable to make Akhtar liable for the gun shot fired by Samad. 17. The result is that this appeal succeeds in pant. The conviction and sentence of Akhtar under section 302 and Section Indian Penal Code is set aside. He is on bail. His hail bonds are cancelled and sureties discharged. He need not surrender. The appeal of Samad is dismissed. He is also on bail. He shall be taken into custody to serve out the sentence.