JUDGMENT N. S. Gupta, J. (1.) ACCUSED appellant Roop Chand named above along with nine others, viz., Kalyan Das, Hukum Singh, Israil, Raman, Lallu, Dulhey Ram, Bhagwan Singh, Pratap and Yad Ram were put on trial before the Sessions Judge, Mathura under Section 147/148/302/307/149, I.P.C. relating to Case Crime No. 89 of 1977 of police station Kosi Kalan, district Mathura (U. P.). Sri O. P. Mehrotra, the then learned Sessions Judge, Mathura vide his judgment and order dated 17.3.79 found (1) Kalyan Das, (2) Pratap, (3) Roop Chand, (4) Israil and (5) Dulhey Ram guilty for offence punishable under Section 302/149, I.P.C. He convicted and sentenced each of them to imprisonment for life. These five accused persons were further found guilty for the offence punishable under Section 307/149, I.P.C. and were sentenced to undergo imprisonment for five years each. They were further held guilty for the offence punishable under Section 148, I.P.C. and were sentenced to undergo R.I. of two years each. All these sentences were made to run concurrently. ACCUSED Raman (6) was found guilty for the offence punishable under Section 148, I.P.C. and was sentenced to undergo R.I. for one year. ACCUSED (7) Hukum Singh, (8) Bhagwan Das, (9) Dulhey Ram and (10) Yad Ram were found guilty for the offence punishable under Section 147, I.P.C. and were sentenced to undergo imprisonment for a period of six months each. Aggrieved by the said order of conviction and sentence, four appeals were preferred before this Court. They were Criminal Appeal No. 957 of 1979, which was preferred by accused Kalyan Das and Hukum Singh, Criminal Appeal No. 958 of 1979 was preferred by Bhagwan Singh, Pratap Singh, Dulhey Ram, Yad Ram and Roop Chand, Criminal Appeal No. 900 of 1979 was preferred by Israil. Raman and Lallu and Criminal Appeal No. 1151 of 1979 was also preferred by Hukum Singh and Kalyan Singh. Since all these appeals arose out of one and the same judgment, they were heard together and were dismissed by Hon'ble N. L. Ganguly and Hon'ble R. N. Ray, Judges of this Court. Raman and Lallu and Criminal Appeal No. 1151 of 1979 was also preferred by Hukum Singh and Kalyan Singh. Since all these appeals arose out of one and the same judgment, they were heard together and were dismissed by Hon'ble N. L. Ganguly and Hon'ble R. N. Ray, Judges of this Court. Out of these appellants Roop Chand went up before the Hon'ble the Supreme Court of India and filed Criminal Appeal No. 782 of 1997 which was remanded to this Court with the following observations : ".......................We find that the High Court has not at all detailed, much less discussed, the material evidence adduced by the parties before upholding the convictions recorded by the trial court. As the Court of appeal, the High Court was required to reappraise the material evidence keeping in view the respective cases of the parties before arriving at its own finding on the merits of the appeal. Since in the instant case, the High Court has failed to discharge its such obligations, we set aside the impugned judgment on this score alone and remand the matter to the High Court to rehear the appeal of the appellant Roop Chand only, and dispose of the same in accordance with law. Since the appellant is in custody, we request the High Court to comply with this direction as early as possible preferably within a period of three months from the date of communication of this order. In the meantime the appellant will continue to remain in jail. In case, however, for unavoidable reasons the appeal cannot be disposed of within the stipulated period, the appellant may pray for bail before the High Court and if such prayer is made, the High Court will consider the same on its merits." (2.) IN accordance with the aforesaid directions of the Hon'ble Supreme Court, we afforded the opportunity of being heard to the accused appellant Roop Chand, the State and the complainant. Arguments on behalf of the accused appellant Roop Chand were advanced before this Court by Shri. A. D. Giri, learned Senior Advocate ; on behalf of the State Shri V. B. Singh, A.G.A. had made his submissions and Shri G. S. Chaturvedi, Senior Advocate of this Court made submissions on behalf of the complainant. We have heard the learned counsel at considerable length and proceed to dispose of the appeal as against Roop Chand only as under. We have heard the learned counsel at considerable length and proceed to dispose of the appeal as against Roop Chand only as under. (3.) THE case of the prosecution briefly stated was as follows : "There was a temple of Mohanji in village Kamar, police station Kosi Kalan, district Mathura. This temple owned about three acres of land which was situate in village Halwana near the minor of a canal. Formerly one Baba, Kishandas was the Mahant of this temple. After his death, a dispute arose in between the accused Kalyan Das, Kunj Behari and Janki regarding Mahantship. This dispute was decided in favour of Kunj Behari, but was pending before the appellate court at the time of the occurrence of this case. On account of the dispute of Mahantship, the land owned by the temple used to be let out by the villagers to the highest bidders, the amount of which was to be given to the person who ultimately succeeded in the dispute regarding Mahantship. During the year in question, this land was leased out to Balli and Shree Ram for two years for a sum of Rs. 1,300. Out of which they had paid a sum of Rs. 650 Balli and Shree Ram were in cultivatory possession of the said land at the time of the occurrence of this case. THE occurrence of this case took place at about 10-10.30 p.m. on 1.4.77 in village Hulwana, police station Kosi Kalan, district Mathura. THE prosecution claimed that Balli and Shree Ram who had sown barley crop into the said field and which crop was ripe for harvesting received information that Kalyan Das and his men were out to harvest the said crop during night which was the moonlit night, just a day before purnamasi, i.e., full moon night. Balli and Shree Ram, therefore, approached Ballabh (deceased), his brother Kishan P.W. 3 and Amichand (deceased) who was their partner and sought their help. Thereupon Ballabh, Kishan and Amichand proceeded towards those fields. Shree Ram, Toti, P.W. 1, Roopi, P.W. 4, Chatar and Ram Gopal followed them. While they were at some distance from the field in question, they saw the aforesaid accused persons standing near the canal. According to the prosecution, accused Kalyan Das, Pratap and Roop Chand were armed with country-made pistols. Thereupon Ballabh, Kishan and Amichand proceeded towards those fields. Shree Ram, Toti, P.W. 1, Roopi, P.W. 4, Chatar and Ram Gopal followed them. While they were at some distance from the field in question, they saw the aforesaid accused persons standing near the canal. According to the prosecution, accused Kalyan Das, Pratap and Roop Chand were armed with country-made pistols. Accused Israil, Dulhey Ram were armed with guns, accused Raman was armed with Bhala, while accused Yad Ram, Lallu, Bhagwan Das and Hukum Singh were armed with lathis. When Ballabh (deceased) asked these accused persons as to why they were out to harvest the crop sown by the poor persons like Balli and Shree Ram and tried to pacify the accused persons, Kalyan Das asked Ballabh as to how they were unnecessarily meddling into the matter. He ordered his companions to kill them. THEreupon, Kalyan Das, Pratap, Roop Chand, Israil and Dulhey Ram opened fire from their respective weapons which were country-made pistols and guns, causing injuries to Ballabh (deceased), Amichand (deceased) and Kishan, P.W. 3. THE accused persons thereafter ran away. This occurrence was witnessed by Toti, P.W. 1, Roopi, P.W. 4, Chatar and Ram Gopal. Ballabh died on the spot while Amichand succumbed to his injuries after three days in the hospital and Kishan, P.W. 3 sustained simple injuries. Toti, P.W. 1 who was the son of deceased Ballabh after arranging a tractor, took his deceased father and the two injured persons, viz., Amichand and Kishan to Kosi Hospital which lay at a distance of about 7 miles from the place of occurrence. At the hospital, he got first information report written (Ex. Ka 1) by Man Singh and lodged the same at about 2.00 a.m. on 2.4.77 at police station Kosi Kalan which lay near the hospital at a distance of about 7 miles from the place of occurrence." (4.) S.I. Vidya Ram, P.W. 7, who was then working as Sub-Inspector of Police at police station Kosi Kalan immediately took up the investigation of the case. He immediately recorded the statement of Toti, P.W. 1 and three other witnesses and at about 6.05 a.m. he along with another S.I. and two police constables went to Kosi Hospital. He found the dead body of deceased Ballabh in the trolley of tractor at the hospital. He immediately recorded the statement of Toti, P.W. 1 and three other witnesses and at about 6.05 a.m. he along with another S.I. and two police constables went to Kosi Hospital. He found the dead body of deceased Ballabh in the trolley of tractor at the hospital. He prepared inquest report in respect of the dead body of Ballabh and after preparing necessary papers sent it for post-mortem examination through constable Kishori Lal, P.W. 2. He, thereafter inspected the spot and prepared site plan Ex. Ka. 16. He recovered bloodstained earth and simple earth from the scene of occurrence and prepared recovery memos, Ex. 8 and 9 about the same. He recorded the statement of Roopi, P.W. 4 and other witnesses. He tried to apprehend the accused persons, but to no avail. On spot inspection he found that the minor of the canal was about 9-10 paces wide and 4-5 paces deep. There was a patri on both side of this minor. Subsequent investigation into the matter was conducted by the Station Officer Suresh Chandra Katiyar, P.W. 8 and S.I. Mohan Singh, P.W. 9 who submitted charge-sheet against the accused persons. At the trial the accused-appellant pleaded not guilty. The learned Sessions Judge, however, believed the contention of the prosecution and convicted and sentenced the accused persons. Thus the appeal. It appears that during the pendency of the appeal before the High Court, accused-appellant Kalyan Das, Israil, Dulhey Ram and Pratap had died. Their appeals had, therefore, abated. Since this appeal was remanded by Hon'ble the Supreme Court for hearing as against accused Roop Chand only, we confined our discussions regarding the role played by the accused Roop Chand only in the occurrence of this case. (5.) DURING the course of trial, 10 witnesses in all were produced by the prosecution, out of whom P.W. 1 Toti was the first informant and the son of deceased Ballabh. P.W. 3 Kishan was the injured eye-witness of this occurrence. He was the brother of Ballabh (deceased), P.W. 4 Roopi, another eye-witness of the occurrence was the son of Balli to whom the plot in dispute was given for cultivation and who had raised crops in those fields which was threatened to be harvested by the accused persons on the fateful night of the occurrence. He was the brother of Ballabh (deceased), P.W. 4 Roopi, another eye-witness of the occurrence was the son of Balli to whom the plot in dispute was given for cultivation and who had raised crops in those fields which was threatened to be harvested by the accused persons on the fateful night of the occurrence. (6.) P.W. 2, constable Kishori Lal was a formal witness who took away the dead body of the deceased Ballabh for post-mortem examination. P.W. 5, Dr. A. K. Gupta conducted autopsy on the dead body of the deceased Ballabh on 3.4.77 at about 3.15 p.m. He prepared post-mortem report Ex. Ka. 3 and found the position of the deceased as under : "The deceased was aged about 50 years and about 1-3/4 days had passed to his death. His body was average built. Rigor mortis was absent in upper extremities and was passing on lower extremities. Decomposition had started. Tongue and eyes were protruding. Penis and seriatum swollen." Dr. Gupta found the following ante-mortem injuries on the person of the deceased (Ballabh) : (1) Gunshot wound of entry 1/8" 1/8" bone deep on the root of the Rt. side nose. (2) Multiple gunshots wound of entries (twelve) on front of both side chest (size 1/4" 1/4" chest cavity deep) to 1/8" 1/8" skin deep. (3) Gunshot wounds of entries three in an area of 8" 4" on the front and upper half of abdomen (size 1/4" 1/4" abdominal cavity deep). (4) Gunshot wounds of entries three in an area of 2" 1" on the front of right shoulder (size 1/4" 1/4" muscle deep). (5) Gunshot wound of entries 1/4" 1/4" muscle deep on the front of right arm above the elbow joint. (6) Gunshot wound of entries 1/4" 1/4" muscle deep on the front of left side arm upper 1/3rd part. (7) Gun shot wounds of entries 1/4" 1/4" muscle deep on the front and upper 1/3rd part of left thigh. (7.) ON internal examination, doctor found six pellets in the skull of the deceased. Brain of the deceased was liquified. Both side of pleurae were punctured. Clotted and fluid blood were present therein. Six pellets were recovered from pleural cavity. Both lungs were punctured. Stomach contained semi-digested food material. Large intestine contained faecal matters. Right lobe was punctured through and through. Brain of the deceased was liquified. Both side of pleurae were punctured. Clotted and fluid blood were present therein. Six pellets were recovered from pleural cavity. Both lungs were punctured. Stomach contained semi-digested food material. Large intestine contained faecal matters. Right lobe was punctured through and through. (8.) THE doctor opined that the cause of death was syncope due to shock and haemorrhage, which resulted from the aforesaid ante-mortem injuries. He opined that the deceased could have died because of these injuries on 1.4.77 at about 10-10.30 p.m. The genuineness of the post-mortem report of Amichand (deceased) was not disputed before the Court below. It shows that the post-mortem examination of Amichand who expired at District Hospital at 5.40 a.m. on 5 was conducted on 5.4.77 at 4.00 p.m. The doctor found that he was aged about 30 years. His body was average built. Rigor mortis was present in both the extremities. No decomposition, bleeding, tattooing and charring were found from any of the wounds. The doctor found surgical dressed and bandage on injury of left side forehead. After removal of bandage a scab wound was found measuring 1/4" 1/4 brain cavity deep on left side forehead. On further exploration of the skull the wound was found perforated with dark brown congestion in 1" 3/4" diameter around the wound. Left side frontal bone was perforated. There was crack and fracture of frontal bone. Brain was lacerated. Membranes were found perforated. The doctor found multiple scabbed healing wounds 1/4" 1/4" muscle deep on left side chest. (9.) ON internal examination, the doctor found frontal bone of left side perforated. Membranes were perforated. Brain was lacerated and congested. Stomach and rectum were empty. The doctor opined that the deceased had died due to coma, as a result of brain injuries which were caused by some firearm. (10.) P.W. 6, Head Constable Som Dutt proved G.D. report and chick report. P.W. 7 Vidya Ram Sharma, P.W. 8 Suresh Chand Kataria and P.W. 9 Mohan Singh Paliwal were the investigating officers. P.W. 10 Dr. Swatantra Kumar Sharma was the medical officer who had examined Amichand and Kishan, P.W. 3 at about 5.55 a.m. on 2.4.77 and prepared injury reports Exh. Ka. 29 and Ka. 30, the genuiness of which was not disputed by the learned counsel for the defence and was rather admitted. P.W. 10 Dr. Swatantra Kumar Sharma was the medical officer who had examined Amichand and Kishan, P.W. 3 at about 5.55 a.m. on 2.4.77 and prepared injury reports Exh. Ka. 29 and Ka. 30, the genuiness of which was not disputed by the learned counsel for the defence and was rather admitted. These injury reports reveal the position as under : Injuries of Amichand (deceased) : (1) Piercing wound 1/2 cm. 1/2 cm. skull deep with abrasion 2 cm. wide, all around, on left side of forehead 2.5 cm., above left eye brow. Traumatic swelling all around were present. (2) Piercing wound .5 cm. .5 cm. bone deep on left side head parietal region 4.5 cm. behind injury No. 1. (3) Piercing wound .5 cm. .5 cm. muscle deep on front of left side chest, 7 cm. below the left shoulder. (4) Two abrasions 1.5 cm. apart, 1/2 cm. 1/4 cm. each on the left arm pit. Injuries of Shri Kishan (injured) : P.W. 3 (1) Incised wound 1 cm. .2 cm. muscle deep, crescent shaped on back of left hand 4 cms. above the base of ring finger. There was swelling all around. (2) Lacerated wound .75 cm. .5 cm. skin deep at the base of the ring finger of left hand on the dorsal of side. (3) Lacerated wound .5 cm. .5 cm. skin deep on left lateral side of penis, 5 cms. below the root. (11.) ON the other hand, the defence examined four witnesses who were (1) Om Prakash, D.W. 1, who was the Gram Pradhan of village Kadona, which lay at a distance of about 1 mile from the place of occurrence, i.e., village Hulwana. He stated that he very well knew accused Yad Ram, Dulhey Ram, Bhagwan Singh, Pratap Singh and Roop Chand. He stated that he very well knew Rati Ram of village Sancholi who was earlier Sarpanch of village Sancholi. He stated that all these five accused persons viz. Yad Ram, Dulhey Ram, Bhagwan Singh, Pratap and Roop Chand, belonged to one and the same party and Rati Ram belonged to the rival party. Rati Ram belonged to Janta Party and these five accused belonged to Congress Party. He stated that in the year 1975, he along with Bhagwan Singh and Sarpanch etc. filed complaint Ex. Yad Ram, Dulhey Ram, Bhagwan Singh, Pratap and Roop Chand, belonged to one and the same party and Rati Ram belonged to the rival party. Rati Ram belonged to Janta Party and these five accused belonged to Congress Party. He stated that in the year 1975, he along with Bhagwan Singh and Sarpanch etc. filed complaint Ex. Kha 22, against Rati Ram with the police and Revenue Officer and thereafter Rati Ram was prosecuted under D.I.R. (12.) D.W. 2 Sri Chand stated that accused Israil was a Fakir who had a quarrel with one Ram Singh. Ram Singh and Rati Ram were close associates. D.W. 3 Hifazat Beg was the record keeper from whom certain applications were summoned but the same were weeded out. D.W. 4 Deen Dayal was Malkhana Moharrir who stated that he did not receive any such application which was made by Bhagwan Singh etc. of village Sancholi. (13.) THE Court in exercise of its powers under Section 311, Cr. P.C. examined Shyam Lal Sharma Assistant of Collectorate Mathura as C.W. 1, who filed a copy of the special report regarding this case which was available in the office of Collector, Mathura. He stated that there was some interpolation in the date beneath the signature of the then District Magistrate which was first put as 2.4.77 and then was made as 4.4.77. (14.) C.W. 2 Constable Basdeo Singh had filed the special report which was summoned by the Court below from the police station. FINDINGS : The prosecution relied upon the direct evidence of three witnesses of fact, viz., Toti, P.W. 1, Shri Kishan, P.W. 3 and Roopi, P.W. 4. Toti, P.W. 1 was the son of Ballabh (deceased), injured Shri Kishan P.W. 3 was the brother of deceased Ballabh and Roopi, P.W. 4 was the son of Balli, whose father was the lessee of the plots in dispute. All these three witnesses have given eye-witness account of the occurrence by stating the fact that three acres of land belonging to the temple of Mohanji, which was let out by the villagers to Balli and Shri Ram was being threatened to be harvested by Kalyan Das and his associates on the night of occurrence. Balli and Shree Ram approached to Ballabh (deceased), Shri Kishan, P.W. 3 and Amichand (deceased) who was the partner of Ballabh and Shri Kishan and sought their help. Balli and Shree Ram approached to Ballabh (deceased), Shri Kishan, P.W. 3 and Amichand (deceased) who was the partner of Ballabh and Shri Kishan and sought their help. Thereupon, Ballabh (deceased), injured Shri Kishan, P.W. 3 and Amichand (deceased) started towards the fields in question which was situate near the minor of village Kamar. Roopi, P.W. 4, Chattar and Ramgopal followed them. Ballabh (deceased), Kishan (injured) and Amichand were few paces ahead of Balli and Shree Ram. It was at about 10-10.30 p.m. in the night. The day was of Chaudash, that is, a day prior to puranmashi, which was a moon lit night. They all stood on one side of the minor and on the other side of the minor at a distance of about 20-22 paces accused Kalyan Das, Pratap, Roop Chand, Dulhey Ram, Bhagwan Singh, Hukma, Lallu, Yad Ram, Israil and Raman accused were standing. Israil and Dulhey Ram were armed with guns. Kalyan Das, Pratap and Roop Chand were armed with country made pistol, Raman was armed with Bhalla and the others were armed with Lathis. Ballabh (deceased) tried to pacify the accused saying that Shree Ram and Balli who were the lessee of plots were poor persons and that they should not be harassed. He further offered to settle down the matter on the next day and asked Kalyan Das and his associates to not harvest the crops during night. Thereupon, accused Kalyan Das exhorted as to who they were to arbitrate into the matter. He exhorted to kill and thereupon he and his associates opened fire by means of their respective guns and country-made pistols which caused injury to Ballabh (deceased) who died on the spot, Kishan and Amichand. Amichand succumbed to his injuries in the hospital after three days. Toti, P.W. 1 stated that at the time of fire Ballabh (deceased), Shri Kishan, P.W. 3 and Amichand were on the boundary of the fields of Kishan. He was towards the eastern side of the sugercane field of Kishan. Roopi, P.W. 4 and Shri Kishan were also inside the sugarcane fields. Chattar and Ram Gopal were towards the south, behind the heap of wheat. After opening fire, the accused-appellant ran away towards the village Kamar. Toti, P.W. 1 stated that when he went near his father Ballabh, he found him lying dead. Roopi, P.W. 4 and Shri Kishan were also inside the sugarcane fields. Chattar and Ram Gopal were towards the south, behind the heap of wheat. After opening fire, the accused-appellant ran away towards the village Kamar. Toti, P.W. 1 stated that when he went near his father Ballabh, he found him lying dead. Shri Kishan, P.W. 3 and Amichand, though alive but they had sustained injuries. A number of villagers came there. Toti. P.W. 1 along with Ballabh Prasad injured Shri Kishan, P.W. 3 and Amichand came to Kosi Hospital where he got a report Exh. Ka. 1 written about this occurrence. Toti, P.W. 1 specifically stated that accused Lallu was the desciple of Kalyan Das. Accused Hukma was the father of Kalyan Das. Roop Chand was a resident of Hulwana and the rest of the accused persons were residents of village Kamar. He stated that Pratap, Roop Chand, Dulhey Ram and Raman belonged to one party. He immediately corrected himself and stated that Pratap, Bhagwan Singh, Dulhey Ram, Raman and Yad Ram belonged to one party. Kalyan Das and Kunjbehari had a dispute regarding the office of Mahant. In the said dispute, these persons were by the side of Kunj Behari. Kunj Behari became successful and after the success of Kunj Behari all these five persons, viz., Pratap, Bhagwan Singh, Dulhey Ram, Raman and Yad Ram associated themselves with Kalyan Das. He stated that Israil was a neighbour of Kalyan Das and was his close associate. (15.) DURING the cross-examination Toti, P.W. 1 stated that he did not know since how much time prior to the occurrence of this case, there was tension on the point of reaping of crop, but maintained that he came to know about the said dispute right on the night of occurrence at about 8-9 p.m. when Balli and Shri Ram approached his father. Although this fact did not find place in the F.I.R. or in the statement of this witness as recorded by the Investigating Officer under Section 161, Cr. P.C. yet the fact remains that Ballabh, Shri Kishan and Amichand had reached to the spot when Balli and Shri Ram had approached them to intervene into the matter. Although this fact did not find place in the F.I.R. or in the statement of this witness as recorded by the Investigating Officer under Section 161, Cr. P.C. yet the fact remains that Ballabh, Shri Kishan and Amichand had reached to the spot when Balli and Shri Ram had approached them to intervene into the matter. The mere fact that Balli and Shri Ram were a few paces behind Toti, Ballabh, Shri Kishan and Amichand does not mean that Ballabh, Shri Kishan and Amichand had arrived at the spot without their intervention. Toti P.W. 1 stated that Balli and Shri Ram did not go along with him either to the hospital or to the police station, because they both were old persons and that they had arrived at the spot when the fire was over. (16.) TOTI, P.W. 1 further stated that when his father had reached at the spot he was about 5-7 paces behind him. He stated that his father etc. had tried to pacify the matter. They were going on that very field, the crop of which was being threatened to be harvested. The said field was situate prior to the minor by the side of the Rasta. He stated that when they were going on the said field, the accused persons, were on the other side of the minor. Therefore, his father went ahead near the minor. He maintained that he had heard that the accused persons were out to reap the crop of the said field forcibly, but he did not hear that the accused persons were fully armed with guns etc. He stated that he could understand that since the accused persons were armed they were out to quarrel, but maintained that since he, his father and uncle did not bore any enmity with them, nor they had any dispute regarding the plot, therefore he felt that the accused persons would not assault him and his father etc. He maintained that inspite of seeing weapons with them he did not talk that the accused persons were out to quarrel and that they should return. He maintained that his father Ballabh (deceased) and the accused persons had talked about two words for about half minute. There was no exchange of abuses. He and his father etc. had no arms with them. He maintained that his father Ballabh (deceased) and the accused persons had talked about two words for about half minute. There was no exchange of abuses. He and his father etc. had no arms with them. He maintained that the level of the minor was about 3-4 feet higher than the fields. The depth of the minor was about one and half feet. When the occurrence took place the accused persons were on the western side of the minor and the complainant TOTI, P.W. 1, his father Ballabh (deceased) injured Shri Kishan, P.W. 3 and Amichand were on the other side of the minor at a distance of about 14-15 paces. The accused persons were armed with guns and country made pistols and were standing ahead of those persons who were armed with Bhalla and Lathis. He stated that when his father Ballabh (deceased) sustained gunshot injury, Amichand was towards his right side and Shri Kishan, P.W. 3 was behind him towards the East at a distance of about 4-5 paces. At that time he and Roopi, P.W. 4 were at a distance of about 6-7 paces from his father. He stated that all the five accused persons who were armed with guns and country-made pistols made one fire each. He stated that after the preparation of the inquest of the dead body of his father in the hospital, he came back to his village along with S.I. of police. He maintained that the Sub-Inspector of police did not recover any Tikli, Charra or Khokha from the spot. He maintained that his father Ballabh (deceased), injured Kishan, P.W. 3 and Amichand (deceased) had fallen near the boundary of the fields of Kishan in which there were no crops. The sugarcane fields were at a distance of about 6-7 paces. He stated to have reached the scene of occurrence along with Sub-Inspector of Police at about 10-10.30 a.m. and remained there for an hour. He stated that Sub-Inspector of Police recorded his statement in the hospital and that the inquest report in respect of the dead body of his father was prepared at about 6-7 a.m. He stated that he did not tell to the Investigating Officer that he made arrangement for conveyance and got a report written by Man Singh and further that he brought the dead body of his father and injured Kishan and Amichand to Kosi. It is further stated during the course of his cross-examination that Man Singh the scribe of the F.I.R. was his Fufa and was a resident of Supana which lay at a distance of about 9-10 miles from his village, but 2 miles from Kosi. Man Singh was a teacher. He used to reside with this witness. But his children used to reside at Supana. He further stated that after the occurrence of this case Man Singh had also arrived at the spot and that he had accompanied him to Kosi. He knew that he very well knew Rati Ram of village Sancholi, but was unable to say as to whether Rati Ram remained as Pradhan or Sarpanch of Sancholi. He emphatically denied the suggestion of the defence on the point that Rati Ram was the Pairokar of his case, but admitted that son of Rati Ram was a lawyer but he was not his lawyer in this case. He was further cross examined regarding accused Israil etc. When cross examined regarding the letting out of the fields in dispute to Balli and Shri Ram, he stated that he was present that time because he was Up Pradhan of the village. The writing was also made for leasing out the plots in dispute to Balli and Shree Ram for a period of two years for Rs. 1,300 out of which lessees had paid a sum of Rs. 650 to Radhey son of Gram Pradhan. The receipt about the same was also given. Balli and Shree Ram had promised to pay the remaining amount of Rs. 650 afterwards. He stated that in the past also the fields belonged to Mandir were leased out. He frankly stated that accused-appellant Roop Chand who belonged to his village never raised any objection for letting out the fields of the Mandir. The land revenue of these plots used to be paid by the lessee. He stated that he used to support Kunj Behari and Kalyan Das both and maintained that Kunj Behari used to reside at Mathura whereas Kalyan Das used to reside at Kamar, where he used to look after the temple. He stated that to the best of his knowledge Kishan Das had made no writing in favour of Kalyan Das. He stated that he used to support Kunj Behari and Kalyan Das both and maintained that Kunj Behari used to reside at Mathura whereas Kalyan Das used to reside at Kamar, where he used to look after the temple. He stated that to the best of his knowledge Kishan Das had made no writing in favour of Kalyan Das. When cross examined on the point of actual occurrence, this witness stated that when he heard that the accused persons were out to harvest the crops then he and his father did not go to the Pradhan, because Balli and Shree Ram, lessees approached his father and uncle informed that all those persons were coming. He along with his father and uncle started to the place of occurrence. He was informed by Balli and Shree Ram that all other persons were coming. He emphatically denied the suggestion of the accused persons on the point that he, his father and uncle wanted to gram the fields in dispute, therefore, the villagers became against him. When cross examined with regard to Roop Chand this witness stated that accused Roop Chand was an associate of Pratap. He stated that Kalyan Das had filed a case of theft against Pratap, Bhagwan Singh, Roop Chand, Yad Ram and Dulhey Ram. Kalyan Das had also filed a case of Maarpeet against these persons prior to the occurrence of this case. He volunteered and stated that all those matters were compromised before the occurrence of this case. The case relating to the dispute of the office of Mahant was won by Kunj Behari and the land was mutated in his name about three years before the occurrence of this case. But inspite of the defeat in the said case, accused Kalyan Das wanted to remain as Mahant of the temple rather forcibly. He maintained that inspite of the success of Kunj Behari in the case against Kalyan Das relating to dispute for the office of Mahant, the village Pradhan, he and his father and uncle used to let out the fields of the temple because Kalyan Das had gone up in appeal and had obtained stay. (17.) HE further stated that Kalyan Das used to object the letting out of the plots in dispute to Balli and Shree Ram. (17.) HE further stated that Kalyan Das used to object the letting out of the plots in dispute to Balli and Shree Ram. HE stated that when the land was again let out no objection was made by Kunj Behari or his associates. The accused persons did not raise objections to the cultivation of the fields in dispute by Balli and Shree Ram. HE showed his ignorance on the point that a case of Maarpeet was going on in between Kalyan Das and Pratap, Bhagwan Singh and others. HE was unable to say whether there were cross cases, but maintained that cases were going on in between these persons. HE stated that Balli and Shree Ram had informed him, his father and uncle that Naval and Kawal had informed that Kalyan Das and others would get the crop harvested on the night of the occurrence. HE stated that Balli and Shree Ram did not inform him that Kishore Bharti, Khubi Ram and Kanshi Ram and his son Roopi had gone to look after the fields. Roopi, P.W. 4 was the son of Balli. HE had accompanied him to the spot. His other brothers met him on the way as also on the fields. HE stated that he reached at Kosi Hospital at about 1.00-1.30 p.m. by means of a tractor along with injured and the dead body of his father Ballabh. Besides these persons Man Singh, Charat, Ninuwa, Chajju Ram, Gopal, Bhagirath, Sunder, Nawal Singh, Ram Sahai and four other persons were also there in their tractor trolley. HE stated that Nawal Singh and Nenuwa had gone with him to the police station and on way Rati Ram also met him. HE denied the suggestion of the defence on the point that he belonged to the party of Rati Ram. HE showed his ignorance on the point that against Rati Ram, Pratap, Bhagwan Singh and other persons had sent application to Indira Gandhi etc. HE also showed his ignorance on the point that Rati Ram was booked in D.I.R. (18.) P.W. 3, Shree Kishan was an injured eye-witness of the occurrence. He fully corroborated the statement of Toti P.W. 1 on all material points including the weapons with which accused persons were armed and the fire opened by them from the other side of the minor. He claimed to have sustained injuries in the occurrence of this case. He fully corroborated the statement of Toti P.W. 1 on all material points including the weapons with which accused persons were armed and the fire opened by them from the other side of the minor. He claimed to have sustained injuries in the occurrence of this case. P.W. 4, Roopi was the son of Balli and Balli was one of the lessee of the fields in dispute which gave rise to the occurrence of this case. He fully supported the prosecution version as was stated by Toti, P.W. 1 in all material particulars. (19.) IT would thus be seen from the evidence of these three witnesses of fact that there was a dispute regarding certain plots which was the property of the temple known as the temple of Mohanji Maharaj of which the accused Kalyan Das claimed to be a Mahant and about which office the dispute was going on and he had obtained stay order from the Court of appeal. When a dispute regarding the office of Mahant was going on, it is probable for us to believe that the villagers like Gram Pradhan and Up Pradhan and other responsible persons of the village like Ballabh (deceased) and Amichand (deceased) intervened into the matter and let out the fields in question on the understanding that the leased money which was arrived at from the fields in dispute be kept in safe deposit for being utilised for the purposes of temple by the Mahant who ultimately succeeded in the litigation for that office. (20.) THE circumstances that accused Kalyan Das was interested in assuming the office of the Mahant of temple to which the fields in dispute belonged fully go to show that when he found that the property of temple was being let out by the villagers and the lessee thereof, viz., Balli and Shree Ram were reaping crops thereof, he collected his close confidents and associates with an unlawful object of forcibly cutting away the crops of those fields and thereby preventing the real lessee to reap the fruits of their harvest. Since Toti, P.W. 1, his father Ballabh (deceased), uncle Kishan, P.W. 3 and Amichand (deceased) had intervened into the matter of letting out the said fields, it was their natural conduct to come to the rescue of lessee when they were informed that accused Kalyan Das and his close associates were out to harvest the said crop. It was, therefore, natural for them to have started to the fields in question and to approach Mahant Kalyan Das also to not harass the poor villagers. Since the accused Kalyan Das and his associates had a prior design to forcibly harvest the crop in question which was fully ripe, it was natural for them to feel offended upon the intervention of the villagers and since accused Kalyan Das and his associates had already collected, with unlawful object to forcibly harvest the crop in question, they should have naturally armed themselves with deadly weapons to resist the intervention of Ballabh, Shree Kishan, Amichand and other villagers. Thus there was nothing surprising about the matter that taking the intervention of villagers like Ballabh (deceased), Shree Kishan, P.W. 3, Amichand (deceased) and Roopi, P.W. 4, etc. as a challenge to his authority, accused Kalyan Das exhorted and asked his associates to open fire and thereupon all the five accused persons, viz., Kalyan Das, Israil, Dulhey Ram, Pratap and Roop Chand who were armed with country-made pistol and guns opened fire by means of their respective weapons causing instantaneous death of Ballabh and injuries to Kishan, P.W. 3 and Amichand who succumbed to his injuries after three days of the occurrence in the hospital at Kosi. Shri A. D. Giri, learned counsel for the accused appellant has vehemently argued before this Court that there were certain interpolations in the police papers in crime number of this case. The actual crime number of the case was 89 and the same was interpolated in the inquest report, Exh. Ka. 11 and papers relating to sending of the dead body Exh. Ka. 13 and 15, injury report of Amichand and Kishan, P.W. 3, Exh. Ka. 29 and 30 and special report sent to the District Magistrate, Exh. Ka. 7 and Challan Lash, Exh. Ka. 12 and the recovery memo of the bloodstained earth Exh. Ka. 17 in which the space for crime number was left out blank. Ka. 13 and 15, injury report of Amichand and Kishan, P.W. 3, Exh. Ka. 29 and 30 and special report sent to the District Magistrate, Exh. Ka. 7 and Challan Lash, Exh. Ka. 12 and the recovery memo of the bloodstained earth Exh. Ka. 17 in which the space for crime number was left out blank. (21.) FROM these interpolations, Shri Giri contended that these were the checks and balances for testing the authenticity of the F.I.R. as also of the time of lodging the same and since there were interpolations and over writings in these documents, it should be believed that the F.I.R. was made ante-time and, therefore, the entire edifice built up by the prosecution on the basis of F.I.R. Exh. Ka. 4 falls to the grounds. Reliance was placed upon the preposition of law laid down by the Apex Court in Sevi and others v. State of Tamil Nadu and another, AIR 1981 SC 1230 and L/NK. Meharaj Singh v. State of U. P., 1995 Cr LJ 457, and a ruling of Division Bench of this Court in Mirza v. State of U. P., 1996 Cr LJ 472. (22.) TRUE it is that there is some overwriting and interpolations in certain papers but on a perusal of the chick report, it is very clear that Case Crime No. 89 was mentioned therein. It is clear from the record of the case that the deceased Amichand and injured Shri Kishan were examined by the medical officer Dr. Swatantra Kumar, P.W. 10 at 6.15 a.m. and 5.55 a.m. on 2.4.77 respectively at the instance of the police. So if it was a fact that no F.I.R. was lodged by that time, there was no occasion for the police to refer these two persons for medical examination to the doctor of Government Hospital at Kosi Kalan. When the ocular evidence of the three witnesses of fact, viz., Toti, P.W. 1, Shri Kishan, P.W. 3 (injured) and Roopi, P.W. 4 find full corroboration by the medical evidence on record and when it is fully established beyond any shadow of doubt that Ballabh and Amichand sustained a number of gunshot injuries in the occurrence in question and had ultimately died, the omissions and interpolations pointed out by the learned counsel for the accused appellants does not by itself discredit the solemn testimony of these witnesses. It was observed by the learned trial Judge that the contention of the public prosecutor before him was that the police itself was trying to help some of the accused persons from the very beginning and that is why S.O. Shri Suresh Chand Katara, P.W. 8, did not take any steps to arrest the accused appellant Pratap, etc. for a long time nor resorted to proceedings under Section 82/83, Cr.P.C. in such a harsh case as the present one, in which two lives were lost and one was injured. Thus, the possibility that the interpolations in question in police papers were made by the police officials themselves with a view to lend undue support to the defence cannot be ruled out. The veracity of the prosecution version in a criminal trial is to be adjudged with reference to the merits of each and every case and simply on the basis of the certain overwritings and interpolations in the police papers as stated above which could have been manipulated by the police officials themselves, it cannot be said that the F.I.R. was made anti-time or that the solemn testimony of the witnesses of fact was not credible. (23.) IT was further argued on behalf of the defence that the investigating officer did not find any Charra or Tikuli on the spot and, therefore, the place of occurrence was not properly fixed. We are unable to agree. The occurrence had taken place during the night in the jungle when the assailants were on one side of the minor and the victims were on the other side of the minor. All the five assailants are said to have fired one shot each from their respective weapons. That being so, there was no question of any cartridge having fallen down on the earth. The place of occurrence being the patri of minor adjoining to the fields, it is probable to believe that the pellets which were dispersed either caused injury to the injured and the deceased or they spread so widely that they could not be located by the investigating officer. (24.) IT is clear from the statement of S.I. Vidya Ram, P.W. 7 that he recovered bloodstained earth from the spot. The report of chemical examiner shows that the earth which was recovered by the investigating officer and which was sent to chemical examiner was found to have contained blood stains. (24.) IT is clear from the statement of S.I. Vidya Ram, P.W. 7 that he recovered bloodstained earth from the spot. The report of chemical examiner shows that the earth which was recovered by the investigating officer and which was sent to chemical examiner was found to have contained blood stains. That being so, the place of occurrence, the site plan of which was prepared by S.I. Vidya Ram, P.W. 7, Exh. Ka. 16 stands fully proved. It was next argued on behalf of the accused appellant that the entire case of the prosecution has been cooked up at the behest of Rati Ram who belonged to rival party and who was on inimical terms. We are unable to agree. When a fatal incident of the kind of present one had happened, the villagers and sympathiser of the deceased and the injured should have naturally rushed upto the hospital and police station to lend their sympathy to them, but it does not mean that the entire incident was cooked up at their instances. Even if it be believed that Rati Ram belonged to a rival party, it is not believable that the incident in which two lives were lost and one injured could have really been fabricated at the instance of Rati Ram. Thus, the defence taken by Roop Chand that he has been implicated in this case at the behest of Rati Ram who was his political rival has no legs to stand. (25.) SHRI V. B. Singh, learned A. G. A. for State relying upon the preposition of law laid down by the Apex Court in Bhola Singh and another v. State of Punjab, AIR 1994 SC 137 and Ram Sanjiwan Singh and others v. State of Bihar, 1996 Cr LJ 2528, has rightly contended that since sufficient moon-light was available on the spot, it being the month of April and the day of occurrence being a day prior to Puranmashi, there was sufficient light of the moon which enabled the complainant Toti, P.W. 1, injured SHRI Kishan, P.W. 3 and Roopi, P.W. 4 to see and recognise the assailants including Roop Chand correctly along with their respective weapons. (26.) ACCUSED-appellant Roop Chand having been armed with a country-made pistol, he having gathered on the other side of the minor along with Kalyan Das and eight others and he having actively participated by opening fire by means of his country-made pistol in the occurrence in question. in which injuries to as many as three persons were caused by means of firearms, one of whom had died on the spot and the other died in the hospital after three days and the third one Shri Kishan, P.W. 3 having escaped only with two lacerated wounds ; stands fully proved beyond any shadow of doubt that Roop Chand had shared common object and guilty intention of all his associate who were members of the said unlawful assembly and who along with him opened fire and caused death of Ballabh (deceased), Amichand (deceased) and attempted to commit murder of Shri Kishan, P.W. 3. Thus to sum up, we find, that the deceased Ballabh and Amichand as also Shri Kishan, injured, P.W. 3 had no enmity or grudge against the accused appellant Roop Chand, his implication into the matter, therefore, cannot be regarded as false. (27.) UNDER the circumstances, we uphold the finding of fact recorded by the Court below relating to the guilt of the accused appellant Roop Chand under Section 302/307/149/148, I.P.C. and maintain his conviction and sentence under the said sections as was awarded by the Court below. Thus this appeal has got no force. It is hereby dismissed. The accused appellant Roop Chand is in jail. He shall serve out the remaining part of sentence according to law.