( 1 ) CRIMINAL Appeal No. 2355 of 1979 has been filed by Pratap Singh, Jitendra Singh, Chandra Pal Singh and Kishan Pal Singh and Criminal Appeal No. 2422 of 1979 has been filed by Narendra Singh and Radha Kishan against the judgement and order dated 9-8-1979 of IV Addl. Sessions Judge Kanpur in S. T. No. 484 of 1978 by which they were convicted under Section 148, 307/149 and 302/149 IPC and were sentenced to 1 years R. I. , 7 years R. I. and imprisonment for life respectively. The sentences having been ordered to run concurrently. ( 2 ) THE case of prosecution, in brief is that Narendra Singh and Jitendrea Singh are brothers being sons of Pratap Singh and Chandra Pal Singh and Kishan Pal Singh are brothers. The house of Pratap Singh accused is towards south of the house of Lakhan Singh (deceased) and is adjoining the same. Sometime before the occurrence Pratap Singh had fixed a window in his Northern wall which opened towards the Court yard of Lakhan Singh but the said window was got closed. Lakhan Singh had constructed a wall immediately adjoining to the back wall of the house of Pratap Singh but when thesaid wall had reached up to the height of the window, Pratap Singh had got the construction stopped with the result that the wall remained incomplete. In the morning of 8-5-1978 at about 7. 30 a. m. Lakhan Singh was making preparation to construct his wall. At that time Pratap Singh and Kishan Pal Singh armed with double barrel guns, Narendra Singh armed with rifle, Jitendra Singh, Chandrapal Singh and Radha Kishan armed with pistols, arrived there and climbed over the roof of the house of Pratap Singh. Pratap Singh told Lakhan Singh that in case he constructed the wall, he would be killed. Lakhan Singh retorted that he would certainly construct the wall in his own courtyard. Pratap Singh than instigated others that before he constructs the wall, he should be killed. Hearing the exchange of words, the complainant Amarpal Singh, his son Ram Babu, Jai Pal Singh, Munni Singh Ravindra Deo and some other persons came to the spot. The six accused then fired from their weapons upon Lakhan Singh who fell down in the passage in front of his house after receiving gun shot injuries. Hearing the exchange of words, the complainant Amarpal Singh, his son Ram Babu, Jai Pal Singh, Munni Singh Ravindra Deo and some other persons came to the spot. The six accused then fired from their weapons upon Lakhan Singh who fell down in the passage in front of his house after receiving gun shot injuries. The persons who had arrived there proceeded towards Lakhan Singh in order to save him. Pratap Singh then again instigated that no one should be left alive to give evidence and every one should be killed. The six persons then again fired towards those persons due to which Ram Babu, Munni Lal, Jaipal and Ravindra Deo received injuries. The accused fired again towards the house of Lakhan Singh and ran away towards southern side firing their weapons. Lakhan Singh died on the spot. The four injured were taken to the hospital where they were medically examined. A written FIR of the incident was lodged by Amar Pal Singh at 10 a. m. on 8-5-1978 at P. S. Gajner which is 7 miles from the place of occurrence. Ram Babu, injured, succumbed to his injuries shortly after he was admitted in the hospital. PW 7 Ram Shankar Misra S. O. reached the village at 12 a. m. and took necessary steps towards the investigation of the case. After completing investigation he submitted charge-sheet against the six accused. The committing Magistrate committed the case to the Court of sessions for trial. The prosecution in support of its case examined seven witnesses including three eye witnesses and filed some documentary evidence. Jitendra Singh and Radha Kishan in their statements under Sections 313 Cr. P. C. set up a counter-version but the remaining four accused denied their presence on the spot. The accused examined two witnesses in support of their case. The learned Sessions Judge believed the prosecution version of the incident, disbelieved the defence set up by the accused and convicted and sentenced them as mentioned earlier. ( 3 ) P. W. 1 Amarpal Singh is the first informant of the case and he had lodged a written FIR of the incident at 10 a. m. on 8-5-1978 at P. S. Gajner which is 7 miles from the place of occurrence with regard to the incident which had taken place at 7. 30 a. m. in his village Karsa. He is father of Ram Babu (deceased ). 30 a. m. in his village Karsa. He is father of Ram Babu (deceased ). In examination-in-chief he has given details of the prosecution case and the firing done by the six accused, first upon Lakhan Singh and then upon the remaining four injured. He has stated that the four injured were sent to P. H. C. Sarwan Khara by a bullock cart. He has proved the FIR Ex. Ka 1 which he had lodged at the police station. He has stated that initially the relations of Pratap Singh and Lakhan Singh were cordial but one year before the occurrence the former had constructed a window in his wall which opened towards the court-yard of the latter. Lakhan Singh had then got the window closed. About 1-2 months thereafter Lakhan Singh had constructed a wall adjoining to the wall of Pratap Singh but when the said wall reached up to the level of windows, the latter got the construction stopped. There were three windows in the wall of Pratap Singh. On the date of incident, Lakhan Singh was making preparations to complete the wall. In his cross-examination, he has stated that the population of Karsa village was about 2500 and the houses of Lakhan Singh and Pratap Singh were almost in the middle of the village. He has admitted that the marriage of Shashi Prabha daughter of Lakhan Singh had taken place 2-3 months before the date of occurrence and in the wedding card the name of Pratap Singh was also mentioned. He has stated that Lakhan Singh was gradually constructing a new house and the new construction had commenced 3-4 years before. He had constructed the new wall adjoining the wall of Pratap Singh in the month of May-June and the construction went on for four days but thereafter it was stopped. There was an old kuchcha house at that place and after demolishing the same, a pucca construction was being raised. In the Kuchcha house, Lakhan Singh used to keep cattle fodder and tie his cattle. After the wall had been raised upto the height of 6-7 cubits and was 23 bricks level below the window, its construction had been stopped. When the construction had been stopped, a panchayat had taken place. In the Kuchcha house, Lakhan Singh used to keep cattle fodder and tie his cattle. After the wall had been raised upto the height of 6-7 cubits and was 23 bricks level below the window, its construction had been stopped. When the construction had been stopped, a panchayat had taken place. Pratap Singh had said in the panchayat that on account of construction of the wall, his windows would be closed while Lakhan Singhs stand was that on account of the windows, the privacy of his house was effected and therefore, he was constructing the wall so as to create an obstruction. Lakhan Singh used to reside in the adjoining portion. After the panchayat, no talksregarding the construction of wall had taken place between the two. He has further stated that when he reached near the chabutara of Prayag Narain two accused were taking aim in a sitting posture and two were taking aim in standing posture while two others namely Narendra Singh and Chandra Pal Singh were standing behind them. All the accused were standing closely and had pointed their weapon towards Lakhan Singh. The accused were at a distance of about 40 paces from Lakhan Singh. After Lakhan Singh had fallen down in the passage, the witnesses present there rushed to rescue hint and as soon as they had proceeded little further the accused fired upon them at the instigation of Pratap Singh. ( 4 ) WE have carefully examined the testimony of this witness. He has given the details of the dispute between the accused Pratap Singh and the deceased Lakhan Singh regarding the construction of the house. His statement shows that Lakhan Singh had constructed the wall on his own land after demolishing his old kuchcha house and that the construction of the wall had been stopped by Pratap Singh about 10 months the incident when the wall was about 1 lower than the windows. On the date of incident Lakhan Singh was making preparation to raise further construction of the wall and this was objected to by Pratap Singh. On the date of incident Lakhan Singh was making preparation to raise further construction of the wall and this was objected to by Pratap Singh. When Lakhan Singh did not listen to the verbal request of Pratap Singh and retorted that he would make the construction as he was doing it on his own land, all the six accused, who were on the roof of the house of Pratap Singh fired upon Lakhan Singh on his instigation, due to which he received injuries and died on the spot. The witnesses who had assembled on the scene after hearing verbal exchange tried to rush towards Lakhan Singh in order to save him but on the instigation of Pratap Singh, all the six accused fired upon them as well, causing injuries to four persons, out of whom Ram Babu also died. The witness is resident of the same village and his house is nearby. His presence on the spot at 7. 30 a. m. in the morning is, therefore, most natural and probable. Nothing has been brought out in his cross-examination which may cast any doubt upon his testimony. In our opinion he is a reliable witness and he has given a truthful version of the incident upon which implicit reliance can be placed. ( 5 ) PW 2 Mahendra Pal Singh is the son of Lakhan Singh (deceased), In his examination-in-Chief he has stated that he was standing in the outer verandan of his house at the time of the incident. He was also given details of the incident. In his cross-examination he has stated that he was a student of High School and his Board examination had finished on 2nd May. After the examination was over, he had returned to his home at 4 p. m. on 2-5-1978. He passed High School examination in First Division. The wall under construction was 17-18 cubits long and 7-8 cubits high. The wall had been raised to the aforesaid level about two years back when Pratap Singh had got is construction stopped on the ground that his three windows would be closed. However, Lakhan Singh wanted to raise wall as due to the windows the privacy of the house was being affected. Even if the wall had been completed, the light and air would have come in the room. However, Lakhan Singh wanted to raise wall as due to the windows the privacy of the house was being affected. Even if the wall had been completed, the light and air would have come in the room. There was only one room in the house of Pratap Singh facing the wall which was under construction. He has further stated that he came to the verandah after hearing the exchange of words between the accused and his father. In his presence Pratap Singh had said that he would not allow the construction of the wall while his father had retorted that he would definitely make the construction ever his own land. On this Pratap Singh instigated other accused that before Lakhan Singh constructs the wall, he should be killed. In paras 12 and 13 of the cross-examination, he has said that accused Radha Kishan and Jitendra were sitting and remaining four accused were standing at the time of firing. The persons, who were sitting were also pointing their weapons. He could not stay as to which accused had fired and who had not resorted to firing but he had seen all the six accused pointing their weapons towards Lakhan Singh. All the witnesses had come empty handed. He emphatically denied the defence suggestion that the wall was not being constructed over his own land. He further stated that after the incident the wall was lying incomplete in the same condition. This witness is son of the deceased. He was studying in High School class in Akbarpur. His High School examination finished on 2nd May and thereafter he returned to his home on the same evening. The accused have not led any evidence to show that High School examination was not over by the said date. It is well known that the High School Examination conducted by U. P. Board is over by the end of April, except in the present year 1995, when they were delayed on account of strike by teachers and employees. Every student of that age group and class comes to his home immediately after the examination is over. His presence is, therefore, most natural and probable. Since the incident happened right in front of his house and the dispute had emanated with the exchange of words between his father and six accused, he must have seen the whole incident. Every student of that age group and class comes to his home immediately after the examination is over. His presence is, therefore, most natural and probable. Since the incident happened right in front of his house and the dispute had emanated with the exchange of words between his father and six accused, he must have seen the whole incident. The defence has not been able to elicit anything in his cross-examination which may shake his testimony. In our opinion he is a truthful and reliable witness and he has given a correct version of the incident. There is absolutely no reason not to place reliance upon his testimony. The statement of this witness fully establishes the case of the prosecution that the six accused first fired upon Lakhan Singh and then upon the persons who had arrived on the scene after hearing the exchange of words and in the second part of the incident four persons received gun shot injuries. ( 6 ) PW 4 Jai Pal Singh had received three gun shot injuries on the left and right side of chest and is, therefore, an injured witness. He has stated that after hearing the exchange of words he reached on the spot and saw Pratap Singh and Kishan Pal Singh armed with double barrel gun, Narendra Singh armed with rifle and Jitendra Singh, Chandra Pal Singh and Radha Kishan armed with pistol standing on the chhazza (balcony) of the house of Pratap Singh. Pratap Singh said to Lakhan Singh that if he constructed/wall, he would be killed, on which Lakhan Singh retorted that he would definitely make the wall on his own land. Pratap Singh then said that before he constructs the wall he would be killed. Thereafter all the six accused fired upon Lakhan Singh, who after receiving injuries fell down on the passage in front of his house. The witness, Ram Babu, Ravindra Deo and Munni Singh rushed to save him, but Pratap Singh instigated other accused to kill them so that they may not give evidence. The accused then fired upon them due to which he, Munni Singh, Ram Babu and Ravindra Deo received injuries. The accused ran away towards southern side firing their weapons. Lakhan Singh died on the spot and the other four injured were taken to the Sarwan Khera Hospital. The accused then fired upon them due to which he, Munni Singh, Ram Babu and Ravindra Deo received injuries. The accused ran away towards southern side firing their weapons. Lakhan Singh died on the spot and the other four injured were taken to the Sarwan Khera Hospital. Ram Babu died in the Sarawan Khera Hospital and the remaining three injured were brought to Ursula Hospital in Kanpur City. All the accused belonged to one group and initially their relations with Lakhan Singh were cordial but subsequently they had got strained on account of the construction of the wall. In his cross-examination he has stated that his house and that of PW 1 Amar Pal are adjoining. The injured were taken to Sarawan Khera Hospital in a bullock cart and from there they were immediately sent to Ursula Hospital in Kanpur City in a Jeep. His statement under Section 161 Cr. P. C. was recorded in the Ursula Hospital on the third day. His marriage was to take place on the date of incident and he was going to the house of Ram Kishore to request him to participate in the marriage when he heard the exchange of words. The said place was at a distance of 40 paces from the house of Lakhan and 70-80 paces from his house. He had heard the exchange of words between Lakhan Singh and Pratap Singh over the construction of the wall. The firing had been done from a place which was 7-8 paces high from the ground. The chhazza (balcony) was 2-2 1/2 cubits wide. Jitendra and Radha Kishan were sitting and the remaining accused were standing. He had seen Narendra Singh aiming his rifle but had not seen the actual firing being made from the same. He further admitted that he had seen all the accused aiming their respective weapons but could not say as to who had actually fired and who had not fired. He was standing at a distance of 30 paces from Lakhan Singh. The moment Pratap Singh instigated other accused, they fired upon him and then upon the other injured. He emphatically denied the defence suggestion that Lakhan Singh had a gun with him at the time of the incident or that any one had assaulted Ram Kishan accused by lathi or danda or that he had received injuries. The moment Pratap Singh instigated other accused, they fired upon him and then upon the other injured. He emphatically denied the defence suggestion that Lakhan Singh had a gun with him at the time of the incident or that any one had assaulted Ram Kishan accused by lathi or danda or that he had received injuries. In para 8 of his cross-examination questions were put regarding some relationship but nothing has come out which may show that he is connected with PW 1 Amarpal Singh or Lakhan Singh in any manner. He also denied the defence suggestion that he had gone to the house of Lakhan Singh in order to get the wall constructed. This witness was medically examined in Sarawan Khera Hospital at 9. 35 a. m. on the same day and the medical reports shows three gun shot wounds on his chest. Therefore, his presence on the spot cannot be doubted. The fact that all the gun shot wounds are on the chest shows that his face was towards assailants. He was, therefore, in full position to witness the whole incident. The defence has not been able to elicit anything in his cross-examination which may show that he is either inimical to the accused or he is in any way intimately connected with Lakhan Singh or Amar Pal Singh. He is, therefore, a wholly independent witness. He has clearly stated that first all the accused fired upon Lakhan Singh when he retorted that he would construct the wall as it was being made on his own land and then all the accused fired upon these who rushed to save Lakhan Singh. In our opinion, he is an absolutely truthful witness who has neither tried to conceal anything nor exaggerate the part played by the accused. He has frankly admitted in para 5 of his cross-examination that though he had seen Narendra Singh aiming his rifle but had not seen fire being made. Similarly with regard to other accused he stated that though they were aiming their weapons, he did not see as to who had fired and as to who had not fired. This clearly shows that he has given a very truthful and natural account of the incident. Learned counsel have notbeen able to point out any infirmity in his testimony. Similarly with regard to other accused he stated that though they were aiming their weapons, he did not see as to who had fired and as to who had not fired. This clearly shows that he has given a very truthful and natural account of the incident. Learned counsel have notbeen able to point out any infirmity in his testimony. In our opinion, he is a honest, truthful and reliable witness and implicit reliance can be placed upon his testimony. His statement proves the prosecution version of the incident that the accused fired initially upon Lakhan Singh and then upon others causing injuries to four persons out of whom Ram Babu died. ( 7 ) PW 5 Dr. Bajrang Singh was M. D. , Incharge, P. H. C. Sarwan Khera on 8-5-1978, he examined Ram Babu at 8. 45 a. m. and found following injuries on his person. This injury report is as under :1. Gun shot would 1/2" x 1/2" x 1/2" on it side of fore head. 1/2" above eye brow. Patient is very serious and started following treatment. . . . . . . . . . . . . . . . . . . . Pulse. Less (not recordable)B. R. not recordable. artificial massage. Pt. examined at 8. 55 a. m. on 8-5-1978. Other injuries are not recorded. "the copy of the injury report is Ex. Ka.- 5. the doctor stated that the condition of the patient was very serious. He was given injections and oxygen. He was pulsless and blood pressure could not be recorded. He died at 8. 55 a. m. The same Doctor examined Jai Pal Singh at 9. 35 a. m. and found the following injuries on his person. Injuries :- (1) Gun shot wound 2/5" x 2/5" x 1 1/2" on it side of chest 21/2" from clavicle bleeding present. (2) Gun shot would 2/5" x 2/5" x 3/4" on rt. side of chest 2/5" above nipple. (3) Gun shot would 2/5" x 2/5" x 1/2" on rt. side of chest 3" below axiala. A copy of the injury report is Ex. Ka.- 7. The doctor has stated on the basis of the X-ray report that two small radio opaque shadows were seen in the upper part of chest on left side with collapse of left lung at upper and lateral side. The injury was directed from upward to downward. A copy of the injury report is Ex. Ka.- 7. The doctor has stated on the basis of the X-ray report that two small radio opaque shadows were seen in the upper part of chest on left side with collapse of left lung at upper and lateral side. The injury was directed from upward to downward. The same doctor examined Munni Singh at 9. 15 a. m. and found the following injuries. 1. "graze gun shot wound 2/5" x 2/5" x 4" on lt. upper arm 13/4" from elbow joint. 2. Two gun shot wound 2/5" x 2/5" x 1/4" x 2/4 " each other. The Doctor stated on the basis of X-ray report that there was fracture of the humerous bone. ( 8 ) RAVINDRA Deo was examined at 5. 30 p. m. by the same doctor and following injuries were found. "injuries :-1. Gun shot wound 1/4" x 1/4" x 3/10" on It. parietal bone 21/2" above eye brows. " ( 9 ) THE injury report is Ex. Ka.- 8 on the basis of the X-ray report, the Doctor stated that there were radio opaque shadows in the left parietal region and pellets were still pulpable, if part of the body where injury was received, was touched. The Doctor has opined that all the four injured could have received the injuries at 7. 30 a. m. on 8-5-1978. He further stated that after Ram Babu died he sent information to the police station. ( 10 ) PW 8 Dr. J. P. Yadav conducted post mortem examination on the body of Lakhan Singh at 2 p. m. on 9-5-1978 and following anti mortem injuries were found on the same. 1. Gun shot wound entry 2. 25 cm. x 2 cm x brain cavity deep on lt. side of scalp 11 cm above the It. ear, through which the brain matter is protruding out margins inverted. No scorching. No blackening margins lacerated. 2. One gun shot wound of entry 1. 5 cm. x 1. 25 cm. x upto bone deep on lt. side of scalp. 1. 5 cm. above the inj. No. 1. margins inverted. No scorching. No. blackening. 3. One gun shot wound of entry 1. 5 cm. x 1. 25 cm. x muscle deep on outer aspect of rt. thigh 17 cm. below the anlecort superior illic spine margins inverted. No scorching, no blackening 100 oz. side of scalp. 1. 5 cm. above the inj. No. 1. margins inverted. No scorching. No. blackening. 3. One gun shot wound of entry 1. 5 cm. x 1. 25 cm. x muscle deep on outer aspect of rt. thigh 17 cm. below the anlecort superior illic spine margins inverted. No scorching, no blackening 100 oz. blood present underneath the wound. One gun shot wound of entry 1. 5 cm. x 1. 25 cm. x muscle deep on rt. thigh outer aspect 10 cm. medial and below the injury No. 1 margins inverted. No scorching. No blackening for 15 cc blood present underneath the injury. 5. One gun shot wound of exit 1 cm. x 1. 25 cm. x muscle deep on the inverting aspect of Rt. thigh 19 cm. above rt. knee. No. blackening. No scorching. Margins everted. This injury communicated with inj. No. 4. 6. One gun shot wound of exit 1. 5 x 1. 5 cm. x muscle deep on medial aspect. Rt. thigh 9 cm above and behind the injury No. 5 margin inverted. No scorching. No blackening. This injury communicated with injury No. 3. 7. One gun shot wound of entry 1. 25 cm. x 1. 25 cm. muscle deep on left calf. "internal examination showed frontal and left parietal bone fractured under injury No. 1. The brainwas lacerated and one metallic pellet was found inside. In the opinion of the doctor the cause of death was shock and hemorrhage as a result of gun shot injuries. The post mortem report is Ex. Ka.- 27. ( 11 ) THE same doctor conducted post mortem on the body of deceased Ram Babu at 3 p. m. on 9-51978 and found the following anti mortem injuries on his body. Ante mortem injuries :-"1. One gun shot wound of entry 1. 25 cm x 1. 25 cm x skull cavity deep on lt. side fore head 1. 3 cm. above the left eye brow Margins inverted. No blackening and no scorching seen. 2. Amaded colour on 2. 5 cm. x 2 cm. on left side face 1/2 cm. below and tattooing from lt. eye. 3. Contusion 2 cm. x 2 cm. on lt. upper eye lid. The internal examination showed frontal and left temporal bone fractured under injury No. 1. Memberance was punctured under injury No. 1. The brain was lacerated and contained 1. 5 cm. x 2 cm. on left side face 1/2 cm. below and tattooing from lt. eye. 3. Contusion 2 cm. x 2 cm. on lt. upper eye lid. The internal examination showed frontal and left temporal bone fractured under injury No. 1. Memberance was punctured under injury No. 1. The brain was lacerated and contained 1. 50 grams of blood and one metallic pellet was found inside. The post mortem report is Ex. Ka.- 18. In the opinion of the doctor death was caused as a result of injury to brain due to gun shot injury No. 1. The doctor has stated that both the deceased could have received injuries at 7. 30 a. m. on 8-5-1978 and as a result whereof Lakhan Singh could have died on the spot and Ram Babu could have died between 8 and 9 a. m. The injuries sustained by both the deceased were sufficient in the ordinary course of nature to cause death. In his cross-examination the witness has stated that he had received all the papers including the FIR of the case at 11. 30 a. m. on 9-5-1978. ( 12 ) PW 6 Bansroop Pandey was head constable at P. S. Gajner. He had stated that he had received the FIR at 10 a. m. on the basis of which he had prepared the chik FIR Ex. Ka.- 9, and had made the necessary entries in the G. D. PW 3 Mata Das Varma was S. I. P. S. Gajner and he held inquest on the body of deceased Ram Babu in Sarwan Khera Hospital. P. W. 7 Ram Shankar Misra was S. O. of Police Station Gajner on 8-5-1978 and he conducted investigation of the case. In this examination-in-chief he has given the details of the various steps taken by him during the courses of investigation. He was subjected to a lengthy cross-examination and several questions were put to him regarding the date on which the Circle Officer had put his signature on the different parchas of the case diary which were sent by him. We do not find any thing substantial in his cross-examination which may have any bearing on the main incident. ( 13 ) AS mentioned earlier P. W. 1 Amar Pal Singh is the father of Ram Babu deceased and is the first informant. We do not find any thing substantial in his cross-examination which may have any bearing on the main incident. ( 13 ) AS mentioned earlier P. W. 1 Amar Pal Singh is the father of Ram Babu deceased and is the first informant. His house is very close to the spot and he reached there on hearing exchange of words between Pratap Singh and Lakhan Singh. PW 2 Mahendra Singh is the son of the deceased Lakhan Singh and he was present in the Verandah of his house at the time of the incident. PW 4 Jai Pal Singh received fairly serious gun shot injuries on his chest. The eye-witness account given by these witnesses Ends complete corroboration from the medical evidence on record. Thus from the testimony of these witnesses, medical evidence and other evidence of the record, it is fully established that when Lakhan Singh said that he would construct the wall inspite of protest being made by Pratap Singh as he was doing the same at his own land, the appellant Pratap Singh instigated others to kill him before he was able to raise the construction and thereafter all the six appellants fired from the chhazza (balcony) where they were standing upon Lakhan Singh who was standing on the ground and he received gun shot injuries due to which he died on the spot. It is further established that when the persons who had assembled there rushed to save Lakhan Singh, Pratap Singh instigated others to fire upon them so that they may not give evidence and all of them again fired upon those persons causing injuries to Ram Babu Munni Lal, Jai Pal Singh and Ravindra Deo out of whom Ram Babu died within a short time. Thus the case of the prosecution is fully established against the accused persons. ( 14 ) THE defence of the accused and the evidence adduced by them may now be considered. Radha Kishan accused has under Section 313 Cr. P. C. that he had gone to the house of Jitendra Singh and at the house of Lakhan Singh, he saw Jaipal, Munni Lal Ram Babu, Sahjade and on outsider armed with lathi. He went near them and asked what was the matter to which they replied that the wall would be constructed. P. C. that he had gone to the house of Jitendra Singh and at the house of Lakhan Singh, he saw Jaipal, Munni Lal Ram Babu, Sahjade and on outsider armed with lathi. He went near them and asked what was the matter to which they replied that the wall would be constructed. He said that why they were fighting on which they started abusing him and assaulting him with lathis. He raised an alarm on which Lakhan Singh came out with a gun while Jitendra Singh also came on the chhazza with a gun. There was exchange of words between Lakhan Singh and Jitendra Singh and Lakhan Singh fired three times from his gun. Jitendra also fired due to which Lakhan Singh received injuries. Pratap Singh stated under Section 313 Cr. P. C. that his house had been constructed about 6 years back. About one year prior to the incident, Lakhan Singh started raising a wall immediately adjoining to his western wall and when it came up to the level of the window, the same wasstopped by Jitendra Singh. In the house in question his son Jitendra Singh lives with his family. Lakhan Singh had stopped the construction after the protest. After Lakhan Singhs daughter had been married, he became close to Amar Pal Singh who was responsible for the present dispute. 1n the incident Jitendra alone was present and no one else was there. Jitendra Singh accused has stated in his statement under Section 313 Cr. P. C. that he had fired in order to save his property and Radha Kishan as the latter was assaulted by Ram Babu by Lathi. First Lakhan Singh fired, then he fired from the roof. The remaining accused denied their presence on the spot. ( 15 ) D. W. 2 Dr. Kishan Lal Shah, M. O. , of Jail Hospital Kanpur has stated that he examined Radha Kishan accused at 6. 15 p. m. on 20-5-1978 and found the following injuries on his body. Injuries : (1) Lacerated wound 2 cm x 1/2 cm x scalp deep on rt. side head 10 cm, above rt. Ear. (2) Contusion 6 cm. x 1 cm from left forehead to left temporal region of head. (3) Contusion 5 cm x 1 cm on leftposterior side fore arm lower 1/3. (4) Traaumaric swelling at left dorsum of hand. Injuries : (1) Lacerated wound 2 cm x 1/2 cm x scalp deep on rt. side head 10 cm, above rt. Ear. (2) Contusion 6 cm. x 1 cm from left forehead to left temporal region of head. (3) Contusion 5 cm x 1 cm on leftposterior side fore arm lower 1/3. (4) Traaumaric swelling at left dorsum of hand. (5) Contusion 8 cm x 3 cm on left fore arm outside medially. (6) Contusion 7 cm x 1 cm on left knee lateral side. (7) Lacerated wound 2 cm x 1 cm x bone deep on rt. leg middle 1/3 front side (pus formed ). (8) Contusion 6 cm x 1 cm on rt. scapular region. (9) Contusion 5 cm x 2 cm on left scapular region. Injuries are simple and caused by hard blunt object and pressure. Duration about one week old. "the injury report is Ex. Kha. 1 on the record. The doctor has stated that all the injuries were simple and had been caused by lathi and were one week old. He has further stated that the injuries could have been caused at 7-8 a. m. on 8-5-1978. In his cross-examination, he has stated that in the injury register of the Jail Hospital the injuries of Radha Kishan have been noted at the end on 20-5-1978 and thereafter the first entry on 21-5-1978 had been made after leaving a blank space of 3/4th page. There is no index or paging in the register. Injuries nos. 2, 3, 5, 6, 8 and 9 were all superficial and there was no dimension in injury no. 4. In his opinion, the injuries appear to have been caused on 13-5-1978. He had not mentioned any date in the injury report regarding their duration except that they were one week old. ( 16 ) THE accused-appellant Jitendra Singh examined himself as D. W. 1. He is son of accused Pratap Singh. He has stated that his house is 60-70 years old and Lakhan Singhs house was 50 paces from there. There were there windows in the room on the first floor from which light and air come inside. There is no other source of light and air. He is son of accused Pratap Singh. He has stated that his house is 60-70 years old and Lakhan Singhs house was 50 paces from there. There were there windows in the room on the first floor from which light and air come inside. There is no other source of light and air. Lakhan Singh started construction of a wall adjoining to his wall about one year back and when the said wall came up to the level of the window, he and his father stopped the construction thereof. At about 7 a. m. on the date of incident he saw that Ram Babu, Munni Lal, Jaipal and an unknown person and Shahjade Singh were present on the door of Lakhan Singh. After getting information about the construction of wall, he went to his roof and saw that Lakhan Singh armed with a gun was getting the wall constructed. He asked him not to make construction to which he retorted that the wall would be constructed on that day. Meanwhile he heard the alarm of Radha Kishan accused and then he rushed to the open roof and saw Ram Kishan being assaulted by lathi. Meanwhile Lakhan Singh arrived in the passage and he fired 3-4 times upon him but the shots hit the wall. Thereafter in order to save himself and Radha Kishan and his property, he also fired due to which Lakhan Singh fell down. Radha Kishan received injuries. Amar Pal and Mahendra Singh were not present. In his cross-examination, he has stated that he never met the station Officer nor he gave information about his version of the incident to any higher authorities. He also admitted that no one from his side lodged any report of the incident. In the ground floor of the house, there was no window or ventilator towards the house of Lakhan Singh. He admitted in para 7 that in the room on the first floor there were three doors on the eastern side. The room was 15-20 cubits long, 4-5 cubits wide and 5-6 cubits high. He denied the suggestion that in the eastern wall of the room, there was any window. He also admitted that if a Commissioner visited his house today, he will find a window and jaali made of bricks in the eastern wall. The room was 15-20 cubits long, 4-5 cubits wide and 5-6 cubits high. He denied the suggestion that in the eastern wall of the room, there was any window. He also admitted that if a Commissioner visited his house today, he will find a window and jaali made of bricks in the eastern wall. He further admitted that in the room situated immediately below in the ground floor, the light and air comes through the doors. Neither he nor his father were aggrieved by the construction of wall by Lakhan Singh immediately adjoining his house, but they were aggrieved by the closure of the windows. He further admitted that he did not know as to how the marpit started, when he had protested, the construction had not started but a mason was cleaningthe wall and mud mortar had been prepared. The bricks had been collected earlier. Lakhan Singh had fired four times but all the fires hit the wall. He fired upon Lakhan Singh after he had fired four times. He had fired in his self defence. He did not make any arrangement regarding the treatment of Radha Kishan nor he had lodged any F. I. R. ( 17 ) THE plea of self-defence raised by the accused is not at all worthy of belief. The accused did not lodge any F. I. R. giving their version of the incident. They did not send any report or application to any other authority even at a later stage. It is clearly admitted by D. W. 1 Jitendra Singh in his statement that till the date of his statement in court he had not told about his version of the incident to any other officer or authority nor any one else had lodged any report from his side. We are also not inclined to believe that Radha Kishan accused received any injury in the incident in question. D. W. 2 Dr. Kishan Lal Shah M. O. Incharge Jail Hospital claims to have examined the injuries at 6. 15 p. m. on 20-6-1978. He has stated that in his opinion the injuries were one week old. This means that the injuries were caused in the evening of 18-5-1978 when the incident took place in the morning of 8-5-1978. The doctor has not given any date what-so-ever from which an inference may be drawn that the injuries were one week old. He has stated that in his opinion the injuries were one week old. This means that the injuries were caused in the evening of 18-5-1978 when the incident took place in the morning of 8-5-1978. The doctor has not given any date what-so-ever from which an inference may be drawn that the injuries were one week old. If really Radha Kishan had received injuries in the incident, there is no reason why he kept waiting and did not get himself medically examined from any doctor till he was taken into custody. Out of nine injuries mentioned in injury report, eight are contusious out of which seven are on hand, leg and back. The doctor has admitted that injuries nos. 2, 3, 5, 6, 8 and 9 are superficial. He has also admitted that injuries of Radha Kishan were noted as the last injury report of 20-5-1978 in the injury register of Jail. There was a big gap of nearly 3/4th page and then recording of injuries of the next day namely 21-6-1978 had commenced. There was no paging in the register. All these facts create a serious doubt as to whether really the injuries of Radha Kishan were examined and noted on 20-5-1978, or the same had been done at a later date. Even assuming that Radha Kishan was examined in Jail at 6. 15 p. m. on 20-5-1978, it does not at all establish that he had received the aforesaid injuries in the morning of 8-5-1978. It also appears highly improbable that though Lakhan Singh deceased fired 3-4 times upon Jitendra Singh yet he did not receive a single pellet while the firing done by Jitendra Singh twice, caused injuries to so many persons. In our opinion the evidence adduced by the defence is wholly untrust-worthy and unreliable and the plea raised by them is absolutely false and a concocted one. ( 18 ) SRI P. N. Misra has urged that Pratap Singh had perfected an easementry right of light and air from the windows of his house and as Lakhan Singh deceased was trying to interfere with the said right by constructing the wall, the accused were justified in causing injuries in exercise of their right of self-defence of property. ( 18 ) SRI P. N. Misra has urged that Pratap Singh had perfected an easementry right of light and air from the windows of his house and as Lakhan Singh deceased was trying to interfere with the said right by constructing the wall, the accused were justified in causing injuries in exercise of their right of self-defence of property. Learned counsel has submitted that P. W. 1 Amarpal Singh has admitted that the room on the first floor in the house of Pratap Singh was constructed when he was 15 years old and as the age of the witness was 46 years, it means that the room together with the windows was in existence for the last thirty years. The witness has also stated that light and air come to the room from the aforesaid windows. It is thus urged that Pratap Singh had acquired an easementary right of light and air by Prescription under Section 15 of the Easement Act and any interference with the said right amounted to mischief which the accused had a right to prevent by causing any harm other than death under Section 104 IPC. In support of his submission learned counsel has placed reliance upon a Single Judge decision of Awadh Chief Court in Shri Ram v. Emperor, 1949 Cr. L. J. 114. We are unable to accept the submission made by the learned counsel. The authority cited by the learned counsel is clearly distinguishable as in the said case a decree had been passed wherein the right of way had been recognized and during execution proceedings parties had entered into a compromise wherein also the complainants right of way had been accepted by the accused. In the present case there is no decree of any court in favour of Pratap Singh. From the statement of P. W. 1 Amar Pal or D. W. 1 Jitendra Singh it cannot be held that Pratap Singh had prescribed any right of getting light and air from the windows. The defence witness has also admitted in para 7 of his statement that there are three doors on the eastern side of the room on the first floor and that light and air to the room which is on the ground-floor immediately below the aforesaid room come through the doors on the eastern side. The defence witness has also admitted in para 7 of his statement that there are three doors on the eastern side of the room on the first floor and that light and air to the room which is on the ground-floor immediately below the aforesaid room come through the doors on the eastern side. Thus it is obvious that the windows are not the only source of light and air to the room. We are also of the opinion that a breach or violation of any easementry right of light and air will not amount to an offence of mischief as defined in Section 425 IPC which reads as follows :"whoever. . . causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility or affects it injuriously, commits mischief". The use of the word its shows that destruction or change should be in the same property which is either destroyed or the value whereof is diminished or is injuriously affected. The act of Lakhan Singh in making construction of a wall on his own land did not destroy or diminish its value or utility nor affected it injuriously. The said act may have affected property of any other person but not the property on which the act was done. Therefore, no offence of mischief was committed by Lakhan Singh which may give a right of self-defence of property to Pratap Singh. Another important feature is that the evidence on record only shows that Lakhan Singh was making preparation to construct the wall. There is no evidence to show that the wall was being actually constructed by putting bricks and mortar over the same. In this view of the matter the accused had time to have recourse to the protection of the Public authorities by making a report at the Police Station. Thus in view of Section 99 IPC, the accused cannot claim any right of self-defence of property. ( 19 ) SRI J. S. Singer has submitted that there is no evidence to show that all the accused had resorted to firing and therefore, the conviction of all of them for the offence of murder is illegal. Thus in view of Section 99 IPC, the accused cannot claim any right of self-defence of property. ( 19 ) SRI J. S. Singer has submitted that there is no evidence to show that all the accused had resorted to firing and therefore, the conviction of all of them for the offence of murder is illegal. In this connection, he has referred to the statement of P. W. 1 Amar Pal Singh wherein he has stated that he had not seen as to which accused had fired. Learned counsel has also referred to the statement in para 13 of P. W. 2 Mahendra Singh which is almost similar. We have carefully examined the testimony of the witnesses and in our opinion the inference sought to be raised is not correct. P. W. 1 has stated that all the accused had pointed their fire arms and the firing had been done several times in quick succession (Taratar fire huye ). It may be noticed that the witnesses were on the ground while the firing was being done from the first floor. Nobody can actually see the bullet coming out of the gun or rifle. If all the six accused had pointed their weapons and several rounds are fired, it cannot be said that anyone of them had not participated in the crime in question or that he can not be held liable for murder. The accused have been charged with the aid of Section 149 IPC. The six accused had come to the roof armed with fire arms. The existence of knowledge that firing may be done which may cause deathh, may therefore bebe reasonably inferred. Every accused knew before hand that in prosecution of the common object of the assembly namely to prevent Lakhan Singh from constructing the wall by use of gun or fire arm, his murder may be committed. The second part of the incident wherein, firing was done upon those who tried to come to the aid of Lakhan Singh was also done in prosecution of the common object of the assembly. On the facts and circumstances of the present case, there can be no escape from the conclusion that the accused knew that Lakhan Singh or some others may be killed if firearm was used in order to deter him from constructing the wall. On the facts and circumstances of the present case, there can be no escape from the conclusion that the accused knew that Lakhan Singh or some others may be killed if firearm was used in order to deter him from constructing the wall. Thus there can be no doubt that all the accused are liable to be convicted under Section 302 IPC with the aid of Section 149 IPC. ( 20 ) THE accused have committed two distinct and separate offences under Section 302 read with Section 149 IPC and deserve a sentence of imprisonment for life for each of such offences. There is no scope of interference with their conviction under Sections 147, 148, 307 read with Section 149 IPC and the sentences imposed thereunder by the learned Sessions Judge. ( 21 ) IN the result, both the appeals fail and are hereby dismissed. The conviction of the appellants and the sentences imposed upon them by the trial court are affirmed. The appellants are on bail, they shall surrender forthwith to undergo the sentences imposed upon them. After the appellants have surrendered, their sureties and bail bonds shall stand discharged. Appeals dismissed. .