O. P. JAM, J. ( 1 ) BOTH the appeals arise out S. T. No. 109 of 1977 in the court of Sessions Judge, Bareilly. The learned Sessions Judge tried six accused persons under sections 302/149 and 307/ 149 and under sections 148 and 147 I. P. C. By his judgment dated 7. 3. 1979 the learned Sessions Judge has convicted Sukh Lal, Durga Prasad and Lal Ram under Section 302 read with Section 34 and sentenced them to life imprisonment. Each of them was further sentenced to 7 years R. I. under Section 307/34 I. P. C. Both the sentences were ordered to run concurrently. The learned Sessions Judge acquitted accused Hira Lal, Randhir and Lal Singh of all the charges. Being aggrieved against the conviction and sentence Sukh Lal, Durga Prasad and Lala Ram have filed appeal No. 975 of 1979 and the State being aggrieved against the acquittal of the three accused has filed appeal no. 1711 of 1979. . The two appeals being inter connected, have been heard together. ( 2 ) THE prosecution case in brief is that on 25. 12. 1976 Khem Karan Lal, his father Gopal Das and his grand father Angan Lal were irrigating the filed of Angan Lal with the canal water. The canal water was obstructed and diverted by Hira Lal, Sukh Lal, Durga Prasad, Lala Ram, Randhir and Lal Singh who cut the embankment of the canal and diverted the water of the field of Kamil Prasad, who is the uncle of accused Durga Prasad, Khem Karan Lal, Gopal Das and Angan Lal objected to it and said that after irrigating their field they may take the water to the field of Kamil Prasad. On this the accused persons started abusing the complainant party and accused Rira Lal told the coaccused to bring a gun. Khem Karan Lal, Angan Lal and Gopal Das therefore went away from the field and reached there Baithakt where Jog Raj, Kalyan Rai and Har Karan Singh were also present. Narain Das and Sewa Ram were winnowing some grain. They started talking about the diversion of water. While these person were talking amongst themselves accused Sukh Lal, Durga Prasad, and Lala Ram armed with guns and the remaining three accused Hira Lal, Randhir and Lal Singh went up on the roof of the Komil Prasads Baithak. Narain Das and Sewa Ram were winnowing some grain. They started talking about the diversion of water. While these person were talking amongst themselves accused Sukh Lal, Durga Prasad, and Lala Ram armed with guns and the remaining three accused Hira Lal, Randhir and Lal Singh went up on the roof of the Komil Prasads Baithak. Jog Raj is serving in the military and had come on leave on the very day. Jog Raj tried to pacify the accused but the three accused (Sukh Lal, Durga Prasad, and Lala Ram) opened fire with the result Jog Raj received some gun shot injury and fell down. When Khem Karan Lal, Gopal Das and Angan Lal ran to the rescue of Jog Raj the three accused again started firing. Gopal Das and Angan Lal also fell down. Narain Das and Har Karan received some pellet injuries. Jog Raj, Gopal Das and Angan Lal died on the spot. Nathu Lal and Lauki Ram rebuked. the accused who threw brickbats from the roof of Komil Prasad and Kalyan Rai received some injuries as a result of throwing on brickbats. After a few minutes the accused got down from the roof of Komil Prasad and ran away from the scene of occurrence. ( 3 ) THIS incident took place on 25. 12. 1976 at about sun set at village Shyampur which is about three miles from police station Nawabganj. A report of this incident was lodged by Khem Karan at police station Nawabganj on the same day at 8. 00 P. M. ( 4 ) AFTER the police registered-a case, P. W. 2, R. A. Sharma took up investigation and inspected the site on 26. 12. 1976 when blood stained earth and plain earth was collected. Brickbats were also taken in possession, empty cartridges and Tickliest used in the firing were taken in possession. Two guns and some cartridges were seized from Smt. Ganga Devi mother of accused Lal Singh and-Randhir Singh. The blood stained clothes of injured persons Har Karan and Narain Das were seized. The injured were got medically examined by Dr. Daulat Ram Sen (P. W. 14) and Dr. J. C. Dev Nath (P. W. 77 ). The postmortem examination on the dead bodies of Jog Raj, Gopal Das and Angan Lal was conducted by Dr. R. S. Rastogi (P. W. 16) between 4 and 6 P. M. on 26. 12. 1976. The injured were got medically examined by Dr. Daulat Ram Sen (P. W. 14) and Dr. J. C. Dev Nath (P. W. 77 ). The postmortem examination on the dead bodies of Jog Raj, Gopal Das and Angan Lal was conducted by Dr. R. S. Rastogi (P. W. 16) between 4 and 6 P. M. on 26. 12. 1976. After completing the investigation the police filed a charge sheet against all the accused who were committed by the learned Magistrate to the Sessions Court. The learned Sessions Judge framed charges under Sections 302/149/307/149,148 and 147 I. P. C. against the accused who pleaded not guilty and claimed to be tried. After completion of the trial the learned Sessions Judge acquitted three accused and found Sukh Lal, Durga Prasad and Lala Ram guilty and sentenced them as stated above. ( 5 ) WE have heard Sri A. N. Mulla for the accused and the learned A. G. A. for the State and have gone through the record. First of all we shall take up appeal no. 975 of 1979 filed by accused Sukh Lal, Durga Prasad and Lala Ram. ( 6 ) BEFORE dealing with criticism leveled against the prosecution a brief summary of the evidence produced by the prosecution may be given. P. W. 1, Khem Karan is an eye witness and lodged F. I. R. at the police station. He says that the accused belong to the same family and that one of the accused namely Sukh Lal is his mothers sisters son. On 25. 12. 1976 the water was released in the canal and from 8. 00 A. M. in the morning he along with his father Gopal Das and grand father Angan Lal was irrigating the field of Angan Lal which is 35 Bighas in area and in which the wheat crop was standing. At about 4 P. M. all the six accused obstructed the flow of water and by cutting the embankment of the canal, diverted the water to the field of Komil Prasad who is the uncle of accused Durga Prasad. When the flow of water to the field of Angan Lal was stopped all the three reached the place where the obstruction was created and they told the accused that they should allow the field of Angan Lal to be irrigated and then the water may diverted. When the flow of water to the field of Angan Lal was stopped all the three reached the place where the obstruction was created and they told the accused that they should allow the field of Angan Lal to be irrigated and then the water may diverted. The accused however did not pay any heed and started abusing Angan Lal, Gopal Das and Khem Karan. Accused Hira Lal asked his co-accused to bring a gun. Therefore he along with Gopal Das and Angan Lal left the place and came to their Baithak". The accused also followed them after sometime in the presence of Jog Raj, Kalyan Rai, Sewa Ram and Narain Das the accused came there and went over the roof of Komil Prasads Baithak. At that time Lala Ram, Sukh Lal and Durga Prasad had guns in their hands. Jog Raj who had come on leave from military service tried to pacify the accused but the three accused opened fire and Jog Raj fell down. Angan Lal and Gopal Das went to his rescue but Sukh Lal, Lala Ram and Durga Prasad fired on them and, therefore, Gopal Das and Angan Lal also fell down. When Narain Das, Kalyan Rai and Har Karan went there they also received pellet injuries and accused Hira Lal, Randhir and Lal Singh threw brickbats which injured Kalyan Rai. After the intervention by Nathu Ram and Lauki Ram the accused left the place with the Guns. He lodged report of this incident which is Exhibit Ka-33. ( 7 ) WITNESSES Kalyan Rai (P. W. 3) and Har Karan (P. W. 4) had also made similar statements and it is unnecessary to reproduce the same, Govind Ram (P. W. 2) has stated that he saw the accused obstructing the flow of canal water and Lal Ram (P. W. 5) who is ziledar in the irrigating Department has stated, on 26. 12. 1976 he visited the canal and found the right embankment cut. ( 8 ) THE remaining witnesses produced by the prosecution are Investigating Officers, doctor and formal witnesses apart from various memos. Netra Pal (P. W. 6) is the constable who brought Angan Lal, Jog Raj and Gopal Das. The doctor found the following injuries 0. 1 the dead bodies: jog Raj:1. Lacerated wound of gun shot 4-1/2 cm. ( 8 ) THE remaining witnesses produced by the prosecution are Investigating Officers, doctor and formal witnesses apart from various memos. Netra Pal (P. W. 6) is the constable who brought Angan Lal, Jog Raj and Gopal Das. The doctor found the following injuries 0. 1 the dead bodies: jog Raj:1. Lacerated wound of gun shot 4-1/2 cm. x 4-1/2 cm x cavity deep on the right side of the chest, 6 cm below the nipple. Under this injury, the 7th, 8th and 9th ribs were fractured. 2. Contusion 2 cm x 1 cm on the back of head. 24 pellets and one was found inside the body. Gopal Das: 1 multiple gun shot wounds 1/4 cm x cm x various depths in an area of 24 cm x 15 cm on front counter aspect of right side chest extending fromaxila to illiac crest. 2. Multiple gun shot wounds 1/4 cm x 1/4 cm x varying depths on front of arm and forearm of the left side in an area of 6 cm x 4 cm. Internally, the pleura was punctured under injury no. 1. The right lung was also punctured at many places by gun shot. The peritoneum was also punctured. The gallbladder had punctures 13 un shots were extracted from the dead body. Narain Das:six gunshots wounds of the entry 1/3 cm x 1/3 cm x muscle and lung tissues deep in an area of 22 cm x 12 cm on the middle part of the left side of the back. There was an other injury of gunshot wounds of entrance in an area of 12 cm x 3 cm upper part of the left side of the back. The Doctor thought that these injuries were caused by file arms and were about 1/4 day old at 12. 45 A. M. 26. 12. 1976 when the medical examination was done. Har Karan was examined at 1 A. M. on 26. 12. 1976 by Dr. Deena (P. W. 17) who found one gunshot wound of entry 1/3 cm x 1/3 cm x muscle deep on the back side of left thigh in the middle part. This injury was caused by firearm and Doctor was also of the opinion that it was day old. The Xray revealed presence of pellets in the injured part. Dr. Deena (P. W. 17) who found one gunshot wound of entry 1/3 cm x 1/3 cm x muscle deep on the back side of left thigh in the middle part. This injury was caused by firearm and Doctor was also of the opinion that it was day old. The Xray revealed presence of pellets in the injured part. Dr. Daulat Ram noticed five injuries on the body of Kalyan Rai (P. W. 3) as follows:1. Faint abrasion 1 cm x 1/2 cm on the upper part of left deltoid muscle and surrounded by traumatic swelling in an area of 10 cm x 10 cm. 2. Lacerated gunshot wound 4/10 cm x 4/ 10 cm x skin deep on the lower part of the left patella bone. 3. Lacerated gunshot wound 4/10 cm x 4/10 cm x skin deep, 3 cm below injury no. 2. 4. Lacerated gunshot wound 4/10 cm x 4/ 10 cm x skin deep, 2 cm medical to the upper end of the left fibula bone. The whole of the front of the left knee joint was surrounded by traumatic swelling. 5. Traumatic swelling in an area of 12 cm x 8 cm on the front of the middle of the right tibia. The injuries were caused by firearm. Presence of pellets could be detected in the upper part of right leg under x-ray. According to Dr. Daulat Ram these injuries were about one day old at 3. 20 P. M. on 26. 12. 1976. ( 9 ) THIS is the prosecution evidence in brief. Learned counsel for the accused vehemently criticised the theory of brick-batting and has stated that there could not have been so many bricks on the roof of Komil Prasad. We are, however, unable to agree with the learned counsel because the bricks may be lying on the roof of Komil Prasad for a variety of reasons. The house may be newly constructed and the bricks may lying as unutilised building material and there can also be some other reasons for keeping the bricks. The second criticisms of the learned counsel for the accused is that the doctor who conducted the postmortem examination on the dead bodies of Angan Lal, Gopal Das and Jog Raj has not noted the direction of the wound. The second criticisms of the learned counsel for the accused is that the doctor who conducted the postmortem examination on the dead bodies of Angan Lal, Gopal Das and Jog Raj has not noted the direction of the wound. It is argued that if gun shots were fired from a height of 20 feet this type of injury cannot be caused. A perusal of the statement of Dr. R. P. Rastogi shows that he was unable to tell the height from which the shots were fired. The doctor expected to fix the height from which the shots were fired and in our opinion the evidence of Dr. Rastogi (P. W. 16) is not inconsistent with these injuries. ( 10 ) THE learned counsel for the appellants has further argued that this incident had taken place at about sun set and it was the month of December when darkness sets in early. It was also argued that the manner in which the incident is said to have taken place is unnatural because it cannot be believed that after Jog Raj had fallen down, Gopal Das and Angan Lal would have rushed to the place where Jog Raj was lying and exposed themselves to the firing. We have given careful consideration to this agreement but in our opinion it has no force. In the F. I. R. itself it has been mentioned that incident took place at a time when the sun had not set (Karib Din Chalke ). This expression means that the sun was about to set but there was sufficient day-light. We do not find anything unnatural in the conduct of Gopal Das and Angan Lal. It was very natural on their part to have rushed to the rescue of Jog Raj. They had no reason to believe that Jog Raj is already dead. Gopal Das and Angan Lal also had no reason to believe that the accused will continue the firing. The reaction of Gopal Das and Angan Lal was spontaneous and they had no time to reflect regarding the consequences of their going to the spot where Jog Raj was lying. Gopal Das and Angan Lal also had no reason to believe that the accused will continue the firing. The reaction of Gopal Das and Angan Lal was spontaneous and they had no time to reflect regarding the consequences of their going to the spot where Jog Raj was lying. ( 11 ) AFTER carefully considering the whole evidence we are fully satisfied that the conviction of the appellants Sukh Lal, Durga Prasad and Lala Ram under Section 302/34 and 307/34 is perfectly correct and the sentences awarded to them also do not call for any interference. Criminal Appeal No. 975 of 1979 is therefore, fit to be dismissed. ( 12 ) COMING to appeal No. 1711 of 1979 filed by the State of D. P. against the acquittal of Rira Lal, Randhir and Lal Singh, we find that according to prosecution these three accused were unarmed at the time of incident. No overt act attributed to any one of them. It is said that Hira Lal told the coaccused to bring a gun but that happened about two hours before the actual firing. This statement is said to have been made by Rira Lal when the accused party and the complainant party was in their fields. Another significant allegation that has been made against these three accused is that they pelted stone or brickbats from the roof Komil Prasad after the firing and as a result of stonethrowing Kalyan Rai received some minor injuries. The record shows that Kalyan Rai (P. W. 3) himself did not make any such allegation in his statement dated 15. 3. 1978 till a leading question was put by the prosecution. It was in reply to suggestive questions that the witness said that Hira Lal, Randhir and Lal Singh threw bricks and stones at them. Mr. Daulat Ram Sen (P. W. 14) who examined the injuries of Kalyan Rai found only one abrasion and one swelling. The remaining three injuries found by the doctor are gunshot injuries. Therefore, in our opinion the story of pelting stones by the accused is an attempt to attribute some role or the other to Hira Lal, Randbir and Lal Singh. After carefully going through the record we are fully satisfied that these three accused have rightly been acquitted by the learned Sessions Judge and no interference with the order of acquittal is called for. After carefully going through the record we are fully satisfied that these three accused have rightly been acquitted by the learned Sessions Judge and no interference with the order of acquittal is called for. ( 13 ) IN view of the aforesaid discussion, both the appeals lack merit. Government Appeal No. 1711 of 1979 against Hira Lal, Randhir and Lal Singh is dismissed, the three respondents may have filed bail bonds in pursuance of the bailable warrants issued against them. Those bail bonds are cancelled and sureties are discharged. ( 14 ) CRIMINAL Appeal No. 975 of 1979 filed by Sukh Lal, Durga Prasad and Lala Ram is also dismissed. Their conduction under Section 302/ 34 I. P. C. and section 307/34 I. P. C. and sentence of imprisonment for life and 7 years rigorous imprisonment to each one of them on two respective grounds are upheld and maintained. Appellants Sukh Lal, Durga Prasad and Lal Ram will surrender to their bail bonds to serve out the sentences and the chief Judicial Magistrate, Bareilly shall take steps to take them into custody forthwith. Govt. Appeal dismissed. .