R. N. RAY, C. J. ( 1 ) BEING aggrieved by the judgment and order of sentence as passed by learned Additional Sessions Judge, V Court at Farrukhabad in Session Trial No. 3/7/79 which arose from crime No. 118 of police station Kamal Ganj, District Farrukhabad dated 18-6-79 appellant (sic ). The prosecution case runs as follows :- Complainant Kamta Prasad lodged the F. I. R. on 18-6-79 at about 7. 00 a. m. which is marked Ext. Ka-1. According to the informant he was returning from his field at village Ahmadpur Devaria and reached near his Kathal grove when accused Rameshwar, Ram Narain, Ram Das, Rakesh, Radhey and Satish armed with lathis, Kripal armed with pistol, Prahlad armed with a sword and Ram Roop armed with a Kanta surrounded him and told him that he had broken the medh of their field. The complainant told them that he had not done so. An exchange of hot words took between them. Then the accused Rameshwar exhorted to kill him whereupon accused Prahlad gave a sword blow to the complainant. On the alarm raised by complainant his sons Rajeev Kumar, Arvind Kumar and others namely Devi Dayal, Ram Bharosey, Pati Ram, Shahjadey, Phool Chand and Ved Ram reached there and tried to save him. Accused Kripal fired a shot from his pistol causing fire armed injury to Rajiv. The remaining accused persons assaulted the complainant Arvind Kumar, Devi Dayal, Ram Bharosey and Pati Ram with their weapons. It is alleged that for the last 4-5 years there had been litigation between the complainant and the accused persons regarding some cultivatory land on account of which the accused persons were on inimical terms with the complainant. A written report has been lodged at Police Station Kamalganj on 18-6-79 at 10. 10 a. m. , the Police Station being at a distance of five miles from the place of occurrence. On the basis of the said report a case u/ss. 147, 148, 323, 324, 307, 149, I. P. C. was registered. ( 2 ) THE investigation of the case was conducted by Sri Mohd. Muskin Khan (P. W. 8) who was posted as S. I. at police station Kamalganj. On 18-6-79 he recorded the statement of Head Moharrir Bhoodev Singh who scribbed the chik report and G. D. entries. 147, 148, 323, 324, 307, 149, I. P. C. was registered. ( 2 ) THE investigation of the case was conducted by Sri Mohd. Muskin Khan (P. W. 8) who was posted as S. I. at police station Kamalganj. On 18-6-79 he recorded the statement of Head Moharrir Bhoodev Singh who scribbed the chik report and G. D. entries. Thereafter he proceeded to the hospital where he recorded the statements of the injured Kamta Prasad, Arvind Kumar, Rajeev Kumar and others. He returned to the police station and thereafter at about 4. 30 p. m. he reached to the place of occurrence. He first interrogated the witnesses Ved Ram and Shahjadey and others and recorded their statements. He visited the place of occurrence and prepared site plan Ext. Ka-17 on the pointing out of complainant and witnesses. He took samples of blood stained and plain earth from the place of occurrence and prepared memo Ext. Ka-18. He sealed the samples Ext. 4 and 5 in two separate tins. He searched the accused persons but could not find any of them. On the next date and on 20-6-79 he also searched the accused but could not arrest any of them. Some of the accused persons surrendered in the Court on 22-6-79. He submitted charge-sheet after completion of the investigation. ( 3 ) RAJEEV who had sustained fire armed injury subsequently died in district Hospital, Fatehgarh on 19-6-79 at 8. 30 P. M. Inquest on the dead body of Rajeev was held on 20-6-79 by P. W. 5, S. I. Hari Singh who was then posted at P. S. Kotwali, Fatehgarh. He prepared inquest report Ext. Ka-8, letters to R. I. and C. M. O. Photo lash and Challan lash Ext. Ka-9, Ka-10, Ka-11 and Ka-12. He had handed over the dead body to constable Ram Sewak and Raj Kumar Singh for taking it for post-mortem examination. The death of Rajeev Kumar was reported to P. S. Kamalganj on 20-6-79 and there was a G. D. entry being No. 18 to that effect the copy of which is Ext. Ka-16. The case was altered from Section 306 IPC to Section 302 IPC at 5. 05 p. m. ( 4 ) THE injured Kamta, Ram Bharosey, Pati Ram, Arvind Kumar, Devi Dayal and Rajeev Kumar were medically examined by Dr. Ka-16. The case was altered from Section 306 IPC to Section 302 IPC at 5. 05 p. m. ( 4 ) THE injured Kamta, Ram Bharosey, Pati Ram, Arvind Kumar, Devi Dayal and Rajeev Kumar were medically examined by Dr. Arjun Kumar (P. W. 2) on 18-6-79 who was then Medical Officer Incharge P. H. C. Kamalganj, He examined all the injured between 11. 35 a. m. to 1. 30 p. m. He found following injuries on the person of each of the injured :- Injuries of Kamta 1. Contusion right side of nose upper part just inner to right eye size 2 cm x 1 cm reddish in colour. 2. Incised wound over dorsal aspect of left thumb proximal 1/3rd cm x 00. 5 cm x bone deep edged clean cut, wound is spindle shape, bleeding direction right to left. Both the injuries were simple. Injury No. 1 was caused by blunt object and No. 2 by sharp edged weapon duration fresh. Injuries of Ram Bharosey :1. Lacerated wound over base of left thumb dorsal aspect 5 cm x 0. 5 cm muscle deep edges irregular bleeding wound is extending over to middle side. 2. Lacerated wound over left palm lateral side 4 cm x 1 cm x muscle deep edges irregular bleeding. 3. Incised wound over terminal phalynx of right ring finger palmar aspect 2 cm x 0. 3 cm x muscle deep edges clean cut clotted blood present. 4. Incised wound over palmar aspect of terminal phalyns of right middle finger in line with injury no. 3, 2 cm x 0. 2 cm x muscle deep edges clean cut. ( 5 ) CONTUSION over back in Lumber region extending from 4 cm above left illiac crest crossing over to right side 17 cm x 2 cm reddish colour. Injuries No. 3 and 4 caused by sharp edged object, 1 and 2 and 5 caused by blunt object, simple in nature and fresh. Injuries of Pati Ram1. Lacerated wound over inner part of left eye brow 1. 5 cm x 0. 5 cm x bone deep, edges irregular, bleeding. 2. Abrasion over dorsal aspect of left forearm 15 cm above wrist 1. 5 cm x 0. 5 cm bleeding. 3. Abrasion over dorsal aspect of left forearm 0. 5 cm above injury No. 2 size 2. 5 cm x 0. 1 cm blood is oozing. 4. 5 cm x 0. 5 cm x bone deep, edges irregular, bleeding. 2. Abrasion over dorsal aspect of left forearm 15 cm above wrist 1. 5 cm x 0. 5 cm bleeding. 3. Abrasion over dorsal aspect of left forearm 0. 5 cm above injury No. 2 size 2. 5 cm x 0. 1 cm blood is oozing. 4. Abrasion over dorsal aspect of left forearm 4 cm above wrist 0. 5 cm x 0. 2 cm reddish colour. 5. Contusion over left lumber region of back size 3 cm x 2 cm reddish colour. All the injuries are simple caused by blunt object duration fresh. Injuries of Arvind Kumar1. Contusion over right parietal region of scalp 9 cm above right ear size 5 cm x 4 cm reddish colour surface abraided with contusion size 0. 7 cm x 0. 2 cm blood is coming. 2. Contusion over right anterior scapular region of back of chest size 5 cm x 2 cm reddish colour. 3. Contusion over left inter scapular region of back of chest 9 cm x 3 cm reddish colour. 4. Contusion over left inter scapular region of back of chest inner to injury No. 3, 3 cm x 1. 5 cm reddish colour. 5. Contusion over dorsal aspect of terminal part of left middle finger 1. 5 cm x 1. 5 cm reddish colour. Simple in nature, caused by blunt object and within half day. Injuries of Rajeev1. Gun shot wounds of entry over pubic region of anterior abdomenal wall just above penis 4 cm x 3. 5 cm depth not probed edges irregular, there is black suit around the margins wound is bleeding, no scorching, tattooing or burning present patient was complaining of pain in abdomen, no corresponding wound of exit, edges were inverted. 2. Circular aberrasions about 60 in number around injury No. 1 in an area of 13 cm x 13 cm spread over penis, senotum, upper part both thighs and anterior abdominal wall lower part each measuring 0. 2 cm x 0. 2 cm margins are blackened, advised X-ray patient complaining of pain in abdomen there is no surrounding, tattooing or burning, the aberrasions are bleeding. Patient is restless conscious, pulseless, thirsty skin cold and clamy dehydrated in a state of shock injuries are dangerous caused by fire arm, duration within half day. Injuries of Devi Dayal1. 2 cm x 0. 2 cm margins are blackened, advised X-ray patient complaining of pain in abdomen there is no surrounding, tattooing or burning, the aberrasions are bleeding. Patient is restless conscious, pulseless, thirsty skin cold and clamy dehydrated in a state of shock injuries are dangerous caused by fire arm, duration within half day. Injuries of Devi Dayal1. Lacerated wound over right parietal region of scalp 6 cm above right ear size 7. 5 cm x 0. 5 cm bone deep edges irregular bleeding, suspected fracture of underline bone advised X-ray, there is bleeding from right ear. 2. Contusion over both eye lids right side 5 cm x 4 cm reddish colour eye lids are swollen and could not be separated and the eye could not examined. 3. Two parietal contusions over outer aspect of left arm each measuring 15 cm situated 0. 5 cm apart, reddish colour verticle. Patient Semi-conscious-answers on loud voice pupil of left eye normally reacting to light right pupil cannot be examined. Patient is vomiting during examination. All injuries caused by blunt object injury No. 1 and 2 kept under observation, No. 3 simple, duration within half day. The Post-mortem examination on the dead body of Rajeev was performed by Dr. S. C. Saxena (P. W. 7) who was Medical Officer at district hospital, Fatehgarh on 20-6-79 at 1. 00 p. m. On external examination he found that the body was of average built, rigor mortis passed out from upper extremity and was partially present in lower extremities. Mouth, eyes closed. He found following ante-mortem injuries on the dead body of Rajeev Kumar :1. Mutliple gun shot wound of entry in an area of 6" x 4" on the lower part of left side pubic region each measuring 1/10" x 1/10" x superficial skin and muscle deep and abdomen margins and inverted, blackening and charring present small shots 30 in number recovered under-neath. 5. On internal examination he found that there was two ounce blood in abdomen cavity. There was semi digested food, intestines were lacerated and full of gases and faecal matter. Bladder was also lacerated. ( 6 ) IN the opinion of the doctor the death was due to shock and haemorrhage as a result of ante mortem injuries. ( 7 ) THE accused Kripal was charged u/s 148, 307, 302, 323 IPC read with Section 149 IPC. Bladder was also lacerated. ( 6 ) IN the opinion of the doctor the death was due to shock and haemorrhage as a result of ante mortem injuries. ( 7 ) THE accused Kripal was charged u/s 148, 307, 302, 323 IPC read with Section 149 IPC. He was also charged u/s 324 IPC read with Section 149 IPC. ( 8 ) ALL the accused persons were charged u/ss 148/307/323/149 IPC. All the accused persons pleaded not guilty to the charges and claimed to be tried. ( 9 ) THE accused persons while being examined u/s 313 Cr. P. C. have denied the prosecution story. The defence suggested during cross-examination that the assault on Rajeev Kumar was taken in the Chapper of Ram Bharosey at about 4. 00 a. m. when the marriage of daughter of Soney Lal was being held and there was some scuffle in that marriage and fire arm was also used and in that incident Rajeev sustained injuries and other accused persons also received injuries. In this respect all the accused persons have stated that out of enmity they have been falsely implicated in this case. ( 10 ) IN support of its case the prosecution has examined eight witnesses. Kamta Prasad (P. W. 1) is the complainant injured and eye witness. Arvind Kumar (P. W. 2) is injured and eye witness. Shahjadey (P. W. 3) is an eye witness. Dr. Arjun Kumar has medically examined all the injured on 18-6-79. Dr. S. C. Saxena (P. W. 7) performed post mortem examination on the dead body of Rajeev. Hari Singh, S. I. (P. W. 5) held the inquest on the dead body of Rajeev Kumar. Mohd. Mustqeem Khan (P. W. 8) S. I. is I. O. Constable Ram Bharosey (P. W. 6) is a formal witness who had presented the dead body before the doctor at the time of post mortem examination. ( 11 ) THE accused have not examined any witness in their defence. However they have filed four documents all certified copies, from the judicial records which are Ext. Kha-2 to Ext. Kha-5. ( 12 ) THE factum of the death of Rajeev Kumar as a result of gun shot injuries sustained by him cannot be disputed. Dr. Arjun Kumar had examined Rajeev Kumar on 18-6-79 at 1. 00 p. m. and found gun shot injuries on the said Rajeev Kumar. Kha-2 to Ext. Kha-5. ( 12 ) THE factum of the death of Rajeev Kumar as a result of gun shot injuries sustained by him cannot be disputed. Dr. Arjun Kumar had examined Rajeev Kumar on 18-6-79 at 1. 00 p. m. and found gun shot injuries on the said Rajeev Kumar. He has further stated that the injuries were dangerous to life and could cause death. Dr. S. C. Saxena (P. W. 7) who performed post mortem examination on the dead body of Rajeev Kumar on 20-6-79 has deposed that he had found gun shot injuries on the person of Rajeev. He has clearly stated that those injuries were sufficient in the ordinary course of nature to cause death. ( 13 ) THERE is no dispute regarding injuries sustained by Kamta, Ram Bharosey, Pati Ram, Arvind Kumar and Devi Dayal. Dr. Arjun Kumar (P. W. 2) proved the injury reports, who examined them on 18-6-79 at the Hospital except the injury of Rajeev Kumar who received gun shot injury which resulted in his death. The injuries of all other persons were simple injuries which might have been caused by blunt weapon like Lathis. It has been argued that as there is no injury which be caused by Kanta and sword so it is apparently clear that accused appellants Prahlad and Ram Roop did not assault any body. It has been argued that if at best it is a case u/ss. 148/323/149 IPC would have been claimed to have been taken place. It has been further submitted that so for Kripal is concerned it is gathered from the prosecution evidence that not words have been used by the parties and at that stage Kripal fired aiming at Kamta Prasad which mis the target and hit his minor son a/a 9 years. Certainly Kripal had no intention to cause any injury to a minor boy of 9 years old who was not even armed so it be treated as a case u/s 304-A IPC. Certainly Kripal had no intention to cause any injury to a minor boy of 9 years old who was not even armed so it be treated as a case u/s 304-A IPC. ( 14 ) HEARD learned A. G. A. who supported the judgment of the Court below and further stated that though there was no injury by Kanta or sword as per medical evidence but still the fact remain that all of them have attack on Kamta Prasad and other who came to save Kamta Prasad, with the intention to finish him so the learned Court below was justified in holding guilty u/s 302/149 IPC. ( 15 ) DULY considered the submissions from both sides and went through the evidences minutely. Since the parties are animical terms so with due caution and care we looked the evidence on the record. It has been amply proved by P. W. 2 and P. W. 7 that Rajeev Kumar received gun shot injury and he died out of gun shot injury. The evidence of P. W. 1, P. W. 2 and P. W. 3 remain all through unshaken and each of them corroborated the other in material particulars. The defence suggestion that Rajeev Kumar was injured during the marriage ceremony of Sone Lal does not get support from any evidence other than only suggestion and making statement while examination of the accused u/s 313 Cr. P. C. took (sic) The evidences of P. W. 1, P. W. 2 and P. W. 3 put beyond doubt that Rajeev Kumar was injured by the fire shot made by the country made pistol which was fired by the accused Kripal who had an intention to finish Kamta Prasad and it missed the target and it hit the innocent minor boy Rajeev Kumar who was a/a 9 years. Since under provocation Kripal fired from his country made pistol with the intention to finish Kamta Prasad which missed the target and hit his minor son Rajeev Kumar so we think that Kripal did not commit an offence u/s 302 IPC but committed an offence u/s 304 IPC. The hot words were exchanged between them i. e. to say provocation came from whose side first cannot be ascertained. The hot words were exchanged between them i. e. to say provocation came from whose side first cannot be ascertained. ( 16 ) KRIPAL fired by country made pistol while he was in very exciting condition with an intention to finish Kamta Prasad but that fire shot resulted in the death of Rajeev Kumar so we hold that Kripal is held guilty for the offence u/s 304 IPC and justice would be met if he sentenced to R. I. for 10 years. We sentence him accordingly and find all other accused persons guilty for the offence u/ss 148/323/149 IPC and we sentence each of them to R. I. for six months for each account. All the appellants are exempted from other charges. Sentences to run concurrently. ( 17 ) THE appeal thus stands partly allowed. All the accused-appellants must surrender in the Court below within 7 days from this date. Their bail bonds are cancelled. If they do not surrender in that event the learned C. J. M. at Farrukhabad will take all measures in his command to get them produced before him and send them to jail to serve out the sentence. The exhibits be disposed of according to rules. ( 18 ) BE it noted that the accused appellants will be entitled to get set off u/s 428 Cr. P. C. Order accordingly. .