GIRIDHAR MALAVIYA, J. ( 1 ) THIS Govt. Appeal has been filed against the judgment and order of acquittal passed by the Vth Additional District and Sessions Judge, Shahjahanpur in Sessions Trial No. 371 of 1977 whereby the respondents have been acquitted of the charges under Sections 1 48, 302/149 and 307/149 Indian Penal Code. ( 2 ) WE have heard Sri K. C. Saxena learned Addl. Govt. Advocate on behalf of the State and Sri P. N. Lal learned counel who has put in appearance on behalf of the respondents Ram Swaroop, Parmeshwar Din, Anant Ram, Satya Dev and Radhey Shyam. ( 3 ) ALL the respondents are closely related inasmuch as Ram Swaroop is the son of the Anant Ram and the remaining respondents are all brothers being sons of Ram Dayal. ( 4 ) THE oral First Information Report giving rise to this case was filed at police station Khutar on 6-9-1977 at 7. 30 a. m. by Rameshwar, PW 1,which was taken down at the police station by clerk constable S. A. Khan, PW 6, who had prepared the chick report. The First Information Report mentioned that Rameshwar PW 1 and Jagannath, PW 7 were residents of village Saufari. They were having old enmity with accused Satya Dev and his family. Satya Dev had lodged false case of theft against Rameshwars brother Raksha Pal. In this back-ground of enmity when on that day he had gone towards the east of the village to watch his grove at about 6. 30 a. m. Satya Dev and Anant Ram accused armed with spears, Parmeshwar Din and Radhey Shyam accused armed with Kanta and Ram Swaroop accused armed with gun arrived there and wanted to encircle him with a view to kill him. Raising the alarm he ran towards his house. His alarm had attracted his father Jagganath and brother Raja Ram. The alarm had also attracted his brother Virendra Kumar, Radhey Shyam, Roop Ram of his village, Ram Charan, Khirdi and Ganpat had also come out. Meanwhile Ram Swaroop fired from his gun at Raja Ram who, on receiving gun short injuries, fell. Rest of the accused started belabouring him, his father Jagannath with Kanta and spears. On being challenged by the witnesses, after belabouring the complainant and his family members, the accused fled away. Meanwhile Ram Swaroop fired from his gun at Raja Ram who, on receiving gun short injuries, fell. Rest of the accused started belabouring him, his father Jagannath with Kanta and spears. On being challenged by the witnesses, after belabouring the complainant and his family members, the accused fled away. However, Satya Dev accused was apprehended along with his spear with the help of the witnesses. The complainant along with his brother Raja Ram and father Jagannath were coming to lodge the report in a cart along with Girwar Singh Thakur and Revti Lal Kurmi when Raja Ram breathed his last on way to the police station on account of injuries. He lodged the report at the police station where the cart had been brought. He prayed that after taking down the report necessary legal action be taken inamuch as he had also brought with him the apprehended accused Satya Dev along with his spear. ( 5 ) AFTER the above mentioned report had been registered the investigation of the case had been taken up by S. K. Awasthi, PW 9 who was posted as Station Officer at Police Station Khutar in whose presence the report was lodged. He got the inquest on the body of Raja Ram prepared whose dead body had been brought to the police station. Jagannath and Rameshwar had been sent for medical examination. The Investigating Officer after sending the dead body for post mortem examination went to the hospital where he recorded the statements of Jagannath and Rameshswar. Thereafter he went to the spot where he recorded the statement of Raja Ram, PW 8. He also recorded the statements of other witnesses, collected blood-stained earth and plain earth, made their memos. He also prepared the site-plan after inspecting the spot; tried to apprehend the accused who were not traceable. In the village at the time itself mother of the complainant Rameshwar handed over to him a receipt issued by the cattle pond which showed that on 2-7-1977 at 4 p. m. Jagannath PW 7 had deposited one she buffalo of Anant Ram accused in the cattle poind. He proved this receipt in the court as Ext. Ka. 3. In the village at the time itself mother of the complainant Rameshwar handed over to him a receipt issued by the cattle pond which showed that on 2-7-1977 at 4 p. m. Jagannath PW 7 had deposited one she buffalo of Anant Ram accused in the cattle poind. He proved this receipt in the court as Ext. Ka. 3. This witness had also found that on 16-8-1977 i. e. about three weeks prior to the present incident Satya Dev accused had lodged a report against Raksha Pal, brother of complainant Rameshwar and son of PW 7 Jagannath under Sections 457/380 Indian Penal Code which was investigated by Sub Inspector Shyam Lal, PW 10 in which on 1-9-1977 a final report had been filed. After completing the investigation he had submitted the charge sheet against the accused persons who deneid the charge and claimed to be tried. ( 6 ) MEANWHILE PW 7 Jagannath and PW 1 Rameshwar were examined by PW 4, Dr. V. K. Agrawal at Primary Health Centre Khutar on 6-9-1977 at 7. 40 a. m. and 8. 00 a. m. respectively. Dr. Agarwal had found the following two injuries on the person of Jagannath. "1. Incised wound 4 x 0. 5 x 0. 2 cm. on the top of the head 10. 5 cms. above the right eyebrow. Bleeding present. 2. Incised wound 1. 5 x 0. 6 x 0. 1 cm. on the front and outer side of base thumb of right hand. Bleeding present. "the doctor had found that both the injuries were simple which could be caused by sharp edged weapon and were fresh. He also found that these five injuries were caused by Kanta and were caused within six hours. ( 7 ) DR. V. K. Agrawal found the following three injuries on the person of Rameshwar :"1. Incised wound 9. 5 cms. x 0. 7 cm. x 0. 7 cm. on the outer side of the lower part of left forearm and hands upper part. Profused bleeding present. 2. Incised wound 4. 5 cms. x 1 cm. x 0. 8 cm. on the back of the head 11 cms. from the left ear. Deep bleeding present. 3. Incised wound 1 x 0. 1 cm. on the outer side base of neck of thumb of right hand. Profused bleeding present. 2. Incised wound 4. 5 cms. x 1 cm. x 0. 8 cm. on the back of the head 11 cms. from the left ear. Deep bleeding present. 3. Incised wound 1 x 0. 1 cm. on the outer side base of neck of thumb of right hand. "these injuries were also simple in nature and were caused by sharp edged weapon such as kanta. Both the injuries could be caused between 6 and 7 a. m. on the same day. In the cross-examination the doctor stated that injuries to both the injured could be caused after 2 a. m. in the night. ( 8 ) POST mortem examination on the body of Raja Ram was conducted by P. W. 2 Dr. Sudhir Singh on 7-7-1977 at 11. 15 a. m. He found the following ante mortem injuries on the body of Raja Ram :-"1. Multiple gun shot wounds of entry on right (upper) side of chest extending towards right (front) shoulder joint and left side of chest 90 in number. Few are super imposed on each other. Size varying from 0. 3 cm. x 0. 3 cm. to 0. 2 cm. and depth verying from muscle deep to chest and cavity deep. Margins are inverted. Diameter of the area is 14 cms. No blackening, scorching or tattooing of surrounding skin present. 2. Three parallel abrasions on right deltoid region lower half directed downwards and laterally in an area of 5 cms. x 4 cms. 3. Lacerted wound on front of right arm 2 cms. x 0. 5 cm. muscle, 12 cms. below the right acrimio clavicular joint. 4. Gunshot wound of entry on anterior lateral aspect of right elbow 0. 2 cm. x 0. 2 cm. x muscle. Margins inverted. No blackening, scorching or tattooing present. 5. Gun shot wound of entry 3 cms. below and away from injury No. 4, 0. 2 cm. x 0. 2 x muscle. Margins inverted. No blackening, scorching or tattooing present. "the doctor found the stomach and small intestine of the deceased to be empty and large intestine containing normal faecal matters. ( 9 ) TO prove its case the prosecution examined PW 1 Rameshwar, PW 7 Jagannath both injured as also PW 8 Roop Ram as witnesses of fact. 2 x muscle. Margins inverted. No blackening, scorching or tattooing present. "the doctor found the stomach and small intestine of the deceased to be empty and large intestine containing normal faecal matters. ( 9 ) TO prove its case the prosecution examined PW 1 Rameshwar, PW 7 Jagannath both injured as also PW 8 Roop Ram as witnesses of fact. ( 10 ) THE prosecution further examined Balak Ram, PW 3 the cattle pond keeper of village Khutar who deposed that on 2-7-1977 Jagannath S/o Pokhan of village Saufari had brought a she buffalo and had lodged it in the cattle pond by mentioning that the she buffalo belonged to Anant Ram. He stated that he had thereupon given a receipt No. 28/2331. He saw receipt Ext. Ka. 3 and confirmed that it was the same receipt. He also proved the entry in register No. 1 at Sl. No. 51 to the same effect to show that Anat Ram after depositing Rs. 1 5. 00 had signed on the register in token of his having received back the she buffalo from the cattle pond and that he had also deposited 38 paise as the charges for feeding the she buffalo for which receipt No. 31/2096 was issued to Anant Ram. The she buffalo was given at 6 p. m. to Anant Ram. ( 11 ) APART from this witness the prosecution also tendered in evidence the formal witnesses by which as stated earalier PW 9 and PW 10 S. K. Awasthi and Shyam Lal respectively had proved the fact that Satya Deo accused had lodged a report against Rakshapal under Secton 380 in which the final report had been submitted. ( 12 ) THE trial Court found that the factum of murder as also the motive i. e. lodging of the report by accused Satya Deo and putting the she buffalo of Anant Ram in the cattle pond by PW 7 Jagannath etc. had been specifically proved which showed that there was bad blood existing between the complainant side and the accused persons. had been specifically proved which showed that there was bad blood existing between the complainant side and the accused persons. The trial court also found that the accused did not challenge the factum of murder but challenged the place and time of the incident and states that some persons had committed the murder of Raja Ram during the night when injuries had also been caused to PW 1 Rameshwar and PW 7 Jagannath but since the assailants could not be recognised hence the accused persons had been nominated in the report on account of enmity. Accepting this contention to a large extent the trial Court put great emphasis on the site plan and observed that the place where Rameshwar and Jagannath were beaten by the accused had been shown in the site plan by figure 3 which was towards the east of chabutara. The trial Court then observed that since the evidence produced by the prosecution did not establish that Rameshwar and Jagannath were beaten at point 3 inasmuch as Rameshwar PW 1 had stated in his cross-examination that he was beaten towards the north of chabutra at a distance of 6 or 7 steps whereas Jagannath PW 7 had stated that he too was beaten towards the north of chabutara hence this inconsistency went to demonstrate that the place of mar-pit of Jagannath and Rameshwar was extremely doubtful. In this connection the trial Court also relied on statement of Dr. V. K. Agarwal according to whom there had been profuse bleeding from injuries of Rameshwar and yet the Investigating Officer did not find any blood at any place of mar-pit towards the north of chabutara. The trial Court further observed that the incident probably took place inside the house of Rameshwar and Jagannath for which he placed reliance on the statement of Rameshwar who had stated that when he was surrounded by the accused and raised alarm his alarm had attracted his brother Raja Ram, his father Jagannath and his brother Radhey Shyam and Virendra Kumar who had come out from the house. The Vth Additional Sessions Judge quoted passage from the statement of PW 7 Jagannath to the effect that he was behind Raja Ram at a distance of 10-11 steps when he received gun shot injuries and Rameshwar was behind him. The Vth Additional Sessions Judge quoted passage from the statement of PW 7 Jagannath to the effect that he was behind Raja Ram at a distance of 10-11 steps when he received gun shot injuries and Rameshwar was behind him. Quoting this statement and relying upon the fact the witnesses Jagannath and Raja Ram had come from inside the house, the trial Court found that this statement supported the version of the accused that the incident had taken place inside the house. The trial Court, also rejected the theory, of spot arrest of Satya Deo and his being lodged at the police station as an accused person on the ground that there was contradiction in the testimony of PW 1 Rameshwar and PW 7 Jagannath on the point of his arrest inasmuch as PW 1 Rameshwar had stated that when Satya Deo was apprehended he did not kill his other companions to save him. The trial Court also found that PW 7 Jagannath had, for the first time, stated that Ram Swaroop had thrown a lathi on Satya Deo with the result that Satya Deo had fallen whereafter Satya Deo had been apprehended which fact was never disclosed by Rameshwar. Subsequently when Raja Ram was examined he too deposed about the lathi being thrown on Satya Deo which was never an outcome of tutoring. According the trial Court held that even the arrest of Satya Deo could not be established by the prosecution particularly as PW 1 Rameshwar had said that he had been arrested near the road whereas the site plan showed his arrest from point 3 where the mar-pit had taken place. ( 13 ) THE view taken by the Court below is based on mis-reading of evidence of the witnesses to a large extent and is not on proper appreciation of evidence in this case. ( 14 ) SO far as the doubt in the mind of the trial Court, that the place of mar-pit which had been showed in the site plan exactly towards east of chabutara is contradicted by the evidence of the witnesses who said that it had taken place towards the north of chabutara, had to be viewed in the background that chabutara as established by the evidence was about four steps towards east west and about six or seven steps towards north south. The trial Court ought to have appreciated the fact that when a mar-pit is going on it is not possible that the person indulging in mar-pit would be absolutely stationary. Moreover point 3 in the site plan as described in the index is the place where Satya Deo had also been apprehended. The site plan is never a correct depiction of the site inasmuch as it is not prepared to scale. For such a small chabutara if site plan had mentioned point 3 as the place of mar-pit and the same was also shown to be a place where accused Satya Deo had been apprehended, then just to reject the entire eye witnesses account including the account given by the injured witnesses without examining the intrinsic value of the evidence, was not justified. The evidence of the witnesses demonstrates in clearest terms that Raja Ram was shot towards the south-west of the platfrom in its close proximate and Raja Ram and Jagannath were injured towards north of the said platfrom. The site plan further demonstrates that when initally the accused had tried to encircle Rameshwar in his grove towards the east Rameshwar had run to reach his house from the south side of the abadi whereas the accused had run to the site of the house of the complainant from the northern road. The meeting point of both these arrows is shown in the site plan on point No. 3 which is shown towards north eastern side of the platform on which the blood was also found. Consequently giving a complete go-by to the prosecution case, simply on the ground that the point in the site plan should be treated as a fixed point has resulted in wrong appreciation of the evidence by the trial Court. ( 15 ) SO far as the blood being not collected by the investigating officer is concerned, which has been taken as one of the serious infirmities in the prosecution case by the trial court, it may be noted that the blood was not found on the platfrom. It may however be mentioned that the Investigation Officer did not find the blood around the platfrom. This should not have again impressed the trial Court to dismiss the entire evidence of the eye witnesses. It is very well known that in villages the ground are all kachcha. People were moving here and there. It may however be mentioned that the Investigation Officer did not find the blood around the platfrom. This should not have again impressed the trial Court to dismiss the entire evidence of the eye witnesses. It is very well known that in villages the ground are all kachcha. People were moving here and there. Moreover after the incident the victims were quickly taken to the police station. Consequently by the time the Investigation Officer came to the village, even if the blood had fallen on the ground then its having been trampled could not be ruled out. In any case it was the intrinsic value of the evidence which had to be judged by the trial Court. Examining the account of the evidence given by the eye witnesses there is hardly any room to disbelieve their evidence which is consistent and demonstrates that Rameshwar was chased and when on alarm members of the family of Rameshwar came out they were also made the target of the assailants in which Raja Ram lost his life. ( 16 ) THE trial Court had also, at one point, found that since Dr. V. K. Agarwal had said that the injuries could be caused to Raja Ram and Jagannath at any time after 2 oclock hence the injuries must have been caused to them during the night and hence the defence suggestion in the case was more probable. It is well known that the doctor can never be absolutely certain on the point of time so far as the duration of injuries are concerned. However what appears as a striking feature of the judgment of the trial Court is that the trial Court on the basis of the statement of Jagannath, PW 7 in which he had mentioned that he was behind Raja Ram at a distance of about 10 or 11 steps when he had received gun shot injuries and Rameshwar was behind him, found that the occurrence had taken place inside the house of the complainant. The trial Court appears to have presumed that this statement was made to show that the position of Raja Ram vis-a-vis Rameshwar and Jagannath was mentioned by him at the point when they were coming out of the house after hearing the alarm of Rameshwar. The trial Court appears to have presumed that this statement was made to show that the position of Raja Ram vis-a-vis Rameshwar and Jagannath was mentioned by him at the point when they were coming out of the house after hearing the alarm of Rameshwar. Had the trial Court taken care to examine this statement of Jagannath in view of the evidence of the three eye witnesses coupled with the site plan, he could have easily understood that this statement was made regarding the placement of these persons vis-a-vis the accused persons. It is to be noted that Rameshwar came running near his house from the southern side shouting for help and the accused had come running from the northern side. In this background Jagannath had made the statement that hearing the shrieks of Rameshwar, he and Raja Ram had all come out. The statement of the witness was clear that hearing the shrieks of Rameshwar he was first to come out and then Radhey Shyam, Virendra Kumar and Roop Ram also came out. If the trial court would have taken care to examine the position of the witnesses it would have been clear that when Jagannath had stated that he was 10 or 11 stpes behind Raja Ram when Raja Ram received gun shots and Rameshwar was behind him he was explaining that Rameshwar was nearest to the accused persons, he was next to Rameshwar and Raja Ram was the last and the farthest away from the accused persons. This statement can in no way be read to indicate that Rameshwar etc. were all still inside their house where they had shot at by the miscreants. The trial Court has clearly not appreciated the evidence of the witnesses in right perspective which has apparently resulted in mis-carriage of justice. ( 17 ) THE finding of the trial Court that there is contradiction on the point of arrest of accused Satya Deo, both on the point of Satya Deo raising alarm as also on the point of his being apprehended and struck by lathi, is also not acceptable. The witnesses were all running and moving. Rameshwar was in a desperate bid to save himself. It was, therefore, just possible for him that he could not have seen a lathi being thrown at Satya Deo by Radhey Shyam. The witnesses were all running and moving. Rameshwar was in a desperate bid to save himself. It was, therefore, just possible for him that he could not have seen a lathi being thrown at Satya Deo by Radhey Shyam. Jagannath had not said so in his examination-in-chief but had stated so in the cross-examination made by the counsel for accused. This fact was also confirmed by Roop Ram. Consequently if Rameshwar did not say about Satya Deo being struck by lathi thrown by Radhey Shyam this could not be treated to be a contradiction between the statements of the eye witnesses. Moreover the fact that the site plan showed the place of arrest at point No. 3 whereas the witness had stated that he was arrested towards the road near the kuan (well) would also again be not such a material point which would make the arrest of Satya Deo doubtful; once we find that the promptly lodged First Information Report as also the statement of all the witnesses including the Investigating Officer etc. demonstrates that he along with his spear was brought to the police station. The last reason for the trial Court to doubt the arrest of Satya Deo was that his companions were armed with deadly weapons and hence it was impossible to believe that they would leave Satya Deo and would not use their weapons to get him released. Although this reasoning may appear to be sound yet the same reasoning could be applied if Satya Deo was being taken by the First Informant and other persons of the village to the police station in captivity. If other accused perons could rescue Sathya Deo at the stage when he was immediately apprehended they could have also rescued Satya Deo subsequently when he was taken to the police station. Since there appears to be no doubt about Satya Deo being brought to the police station and handed over to the police as is clear from the First Information Report, it appears difficult to accept the reasoning of the trial Court that the accused could never have permitted Satya Deo to be apprehended at the time of incident. In this connection it may be noted that once a crime has been committed by some persons in which some persons has been struck with a gun shot fire also the only instinct of the criminal is to escape. In this connection it may be noted that once a crime has been committed by some persons in which some persons has been struck with a gun shot fire also the only instinct of the criminal is to escape. It appears the other accused persons either could not realise that Satya Deo had been apprehended or they just thought it best to avoid wrath of the village people by escaping from the spot rather than trying to rescue Satya Deo. In any case it was mentality of the accused which could be sometimes explained by the accused persons themselves. Merely because the accused did not rescue their companions that alone cannot otherwise result in the evidence of the prosecution to be dis-believed. ( 18 ) THE evidence of the two injured witnesses Rameshwar and Jagannath is consistent. It is also materially supported from the evidence of Roop Ram. The argument of learned counsel for the respondent-accused that there were other witnesses who have not been examined cannot necessarily benefit them because it is not the quantity of the evidence but the quality of the evidence when is required to fix the liability in a criminal case. On the evidence of the two injured witnesses coupled with the prompt First Information Report as also the fact that the complainant had also taken with them one of the accused to the police station namely Satya Deo there appears to be no reason why the prosecution case should not have been accepted by the trial Court. The judgment of the trial Court suffers from serious infirmity and the acquittal of the respondents has resulted in mis-carriage of justice which is bound to erode the confidence of public when they find that even in such cases where an accused had been apprehended on the spot and two persons had been injured still the evidence could not be acceptable to the trial Court to bring home the guilt against the accused persons. ( 19 ) THE appeal, therefore, deserves to be allowed and order of acquittal passed by the trial Court set aside. ( 20 ) ACCORDINGLY the appeal is allowed. The judgment and order dated 27-7-1978 passed by the trial Court is set aside. The accused are found guilty of the charges under Sections 148, 302/149, and 307/149 Indian Penal Code. ( 19 ) THE appeal, therefore, deserves to be allowed and order of acquittal passed by the trial Court set aside. ( 20 ) ACCORDINGLY the appeal is allowed. The judgment and order dated 27-7-1978 passed by the trial Court is set aside. The accused are found guilty of the charges under Sections 148, 302/149, and 307/149 Indian Penal Code. The accused are, therefore, sentenced to life imprisonment under Sections 302/149 Indian Penal Code, five years rigorous imprisonment under Sections 307/149 Indian Penal Code and one years rigorous imprisonment under Section 148 of the Indian Penal Code. All the sentences shall run concurrently. The accused shall be taken into custody forthwith to serve out the sentences. Appeal allowed. .