JUDGMENT 1. - All the five appellants were arraigned before the learned Additional Sessions Judge Gangapur City (Distt. Sawai Madhopur) in Sessions Case No. 23/95 for having committed murder of Subudhi. They were found guilty, convicted and sentenced as under: 1. Bhondu 2. Moti U/s. 147 IPC Three months simple imprisonment with fine of Rs. 100/- in default to suffer further simple imprisonment for 15 days. U/s. 148 IPC Six months simple imprisonment with fine of Rs. 200/- in default to suffer further simple imprisonment for one month. U/s. 302 IPC Imprisonment for life and fine of Rs. 1,000/- in default to further suffer rigorous imprisonment for three years. U/s. 307 IPC Rigorous imprisonment for 10 years with fine of Rs. 2,000/- in default to further rigorous imprisonment for one year. U/s. 323 IPC One month simple imprisonment with fine of Rs. 100/- in default to further suffer simple imprisonment for 15 days. 3. Battilal 4. Guna 5. Bharatlal U/s. 147 IPC Three months simple imprisonment with fine of Rs. 100/- in default to suffer further simple imprisonment for 15 days. U/s. 302/149 IPC Imprisonment for life and fine of Rs. 1,000/- in default to further suffer rigorous imprisonment for three years. U/s. 307/149 IPC Rigorous imprisonment for 5 years with fine of Rs. 1,000/- in default to further rigorous imprisonment for one year. U/s. 323/149 IPC One month simple imprisonment with fine of Rs. 100/- in default to further suffer simple imprisonment for 15 days. All the sentences were directed to run concurrently. 2. Against this judgment of conviction that the appellants have preferred the instant appeals. The prosecution story in brief is that on 09.06.1988 Hari Singh PW-3 submitted a written report Ex.P/3 to Dy. S.P. Vipul Chaturvedi (CW 2) who is turn directed-the SHO Police Station Gadhmohar to investigate the matter. The said report was written by Kamal Dass Advocate (CW 1). It was inter alia averred in the report that while polling was in progress for the Sarpanch Elections at Ronsi around 1.30 p.m. Bhondu, Bharatu, Moti, Batti lal and Prabhu shouted from the top of the Haveli of Giriraj that informant Hari Singh and other Gurjars be liquidated so that they ever forget to come to the village. At that time the informant Hari Singh PW-3 was interacting with the voters outside the Haveli. At that time the informant Hari Singh PW-3 was interacting with the voters outside the Haveli. The aforesaid persons from the top of the Haveli with the intent to kill the informant and his associates fired guns resulting in injuries to several people including Subudhi who lateron died. It was also asserted in the written report that the incident was witnessed by members of the polling party and the police force present there. The Police Station Gadhmohar registered a case u/s. 147, 148, 149 and 307 IPC and investigation commenced. With the death of Subudhi the case was converted for offence u/s. 302 IPC also. As per the prosecution in the incident Subudhi lost his life and 19 other persons suffered injuries. Dying declaration of the deceased Subudhi Ex.P/50 was recorded by Shri Chandra Bhan Gupta PW-22, who at that time was Judicial Magistrate Karauli. The dying declaration was taken down at 9.45 p.m. on 09.06.1988. In the dying declaration the deceased did not name the appellants as assailants. It was given out in the dying declaration that the assailant was son of Sukhram. It is detailed out in the medico-legal report of the deceased Subudhi that there was a fire arm injury entry wound and corresponding exit wound indicating that deceased suffered only one injury. The investigating officer inspected the site and drew site plan. The statements of witnesses u/s. 161 Cr.P.C. were recorded. The appellants were arrested. Necessary recovery memos were drawn and weapons of offence at the instance of appellants were allegedly recovered. On conclusion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge, Gangapur City. Charges u/s. 147, 148, 302/149 and 307 IPC were framed against the appellants. Lateron the appellants Moti and Bhondu were charged u/s. 302 IPC. The appellants denied the charges and claimed trial. The prosecution examined as many as 23 witnesses and tendered 68 documents in evidence. In the statements u/s. 313 Cr.P.C. the appellants pleaded innocence. The defence examined four witnesses while Kamal Das, Advocate and Vipul Chaturvedi, were examined as Court witnesses 1 and 2 respectively. On hearing the final submissions the learned trial Court convicted and sentenced the appellants as indicated hereinabove. 3. Shri S.R. Bajwa, learned Senior Advocate, on behalf of the appellants invited our attention to the glaring infirmities in the prosecution case. On hearing the final submissions the learned trial Court convicted and sentenced the appellants as indicated hereinabove. 3. Shri S.R. Bajwa, learned Senior Advocate, on behalf of the appellants invited our attention to the glaring infirmities in the prosecution case. It is contended that there are material improvements upon the version disclosed in the FIR but at trial eye witnesses gave clean chit to four assailants and limit the number of assailants to remaining two assailants namely Moti and Bhondu. As per FIR it was a case of singular assault launched from roof of the Haveli belonging to Giriraj, but during trial the eye witnesses have developed the story to suggest that assailants had indulged in making assault at three different junctions and at three different places i.e. from the roof of Haveli of Girraj, from the Chabutri and near the house of Kalu Nath. It is further urged that there is a serious conflict between the version given in dying declaration by deceased Subudhi and the testimony given out by the alleged eye witnesses. The medical evidence renders no corroboration to ocular testimony. The prosecution has withheld the material witnesses. It is not known who is the author of fatal blow sustained by the deceased and from the prosecution evidence it is established that there was no unlawful assembly. The prosecution witnesses categorically stated that the impugned assault was made by two persons namely Moti and Bhondu only. 4. Per contra Mr. R.P. Meena, learned Public Prosecutor and the learned counsel for the complainant Mr. Anurag Sharma contended that the genesis of the occurrence has been established and from the evidence guilt against the appellants have been proved beyond reasonable doubt. The appellants were rightly convicted by the learned trial Court. 5. On behalf of both the sides various authorities have been placed before us that will be dealt with at appropriate juncture. 6. We have reflected over the rival submissions and carefully scanned the material on record. 7. The conviction of the appellants is mainly based on the dying declaration of the deceased and the deposition of injured eye witnesses, Hari Singh PW-3 Siya Ram PW-4, Kishan Sahai PW-5, Prahlad PW-6 Kishan Swaroop PW-7, Mangal PW-8, Ram Prasad PW-9, Rajju PW-10, Ram Sahai PW-11, Sumer Singh PW-12 and Sugreev PW- 13. Indra Raj PW-16 is the investigating officer and Dr. Indra Raj PW-16 is the investigating officer and Dr. Nand Lal PW-15 conducted the autopsy on the body of the deceased. 8. Let us now scan the credibility of the prosecution witnesses. Hari Singh PW-3 in his deposition stated that appellants Moti and Bhondu opened fire indiscriminately and about 20 persons pelted stones. Sarup sustained pellet injuries. Thereafter the accused got down-from the roof of Giriraj Mahajan and Moti and Bhondu again opened fire on account ofwhich Subudhi, Govinda, Gyan Singh, Banne Singh, Prahlad, Jagrup, Kishan Sahai, Sugreev, Sumer Singh, Siya, Rajju, Ram Prasad, Lakhan and Pukhraj in all 19 persons sustained pellet injuries. Thereafter Subudhi succumbed to the bullet injuries. In his cross examination he stated that Shri Kamal Das, Advocate was the scribe of the written report Ex.P/3. It was further stated by him that before starting of polling, persons belonging to Meena community around 10.00-11.00 a.m., started threatening the voters and in this regard he made written complaint to the returning officer. He further stated that pellets hit the walls and Moti and Bhondu opened fire aimlessly about 20 minutes. When Subudhi was standing in front of Mahajan ki Haveli he sustained the pellet injuries. Though other accused were also armed with guns but only Moti and Bhondu opened fire. Other accused even did not pelt the stones. The pellets which hit the wall of Kalu Nath house were shown by him to the police. He was contradicted with his earlier statement in which he deposed that all the accused opened fire to which he explained that it was wrongly mentioned in the earlier statement as well as in the report Ex.P/3 that all the accused opened fires. This he deposed by mistake as he was disturbed by the incident. He further stated that the incident had been witnessed by the polling party as well as police personnel. He further stated that at the time of drawing site plan he had shown the Chabutra to the police where from where Moti and Bhondu opened fire. He had also shown the place where the pellets hit the wall. He did not sustain any injury because he was army personnel and he had saved himself. 9. He further stated that at the time of drawing site plan he had shown the Chabutra to the police where from where Moti and Bhondu opened fire. He had also shown the place where the pellets hit the wall. He did not sustain any injury because he was army personnel and he had saved himself. 9. The incident narrated by Hari Singh PW-3 has more or less repeated by the other eye witnesses Siyaram PW-4, Kishan Sahai PW-5, Prahlad PW-6, Kishan Swaroop PW-7, Mangal PW-8, Ram Prasad PW-9, Rajju PW-10, Ram Sahai PW-11, Sumer Singh PW-12 and Sugreev PW-13. 10. Madan Mohan PW-14 is the returning officer. In his deposition he stated that around 1.30 p.m. at Booth No. 3 one boy of Meena community came and started quarrelling with a RAC person. Thereafter stones, and bricks were pelted and he heard the shouts of opening fires. He was told that three and four persons sustained bullet injuries. He then suspended the polling for some time. 11. Dr. Nand Lal Sharma PW-15 who conducted the autopsy on the dead body of deceased Subudhi deposed that Subudhi sustained two fire arm wounds, namely wound of entrance and exit wound. The entry wound contained grease and collar of abrasion with clean cut inverted margins whereas the exit wound contained uneven and averted margins. He further stated that the injuries of other injured witnesses, sustained by gun shot injuries similarly showed the collar of abrasion around the entry wound. On X-ray the metallic shadows were found corresponding to the gun shot injuries sustained by the injured witnesses. The injuries sustained by the injured persons and the deceased were of same duration and were caused in the same transaction. He further deposed that the injuries sustained by the deceased could be the result of bullet injury, it was fired from a 12 bore double barreled gun containing bullet in one barrel and cartridge in another. 12. Two 12 Bore double barrel guns were seized by the investigating officer from the appellants Moti and Bhondu vide seizure memos Ex.P/56 and Ex.P/57 on the basis of information given by Moti vide Ex.P/54 and by accused Bhondu vide Ex.P/55 u/s. 27 of the Evidence Act. 12. Two 12 Bore double barrel guns were seized by the investigating officer from the appellants Moti and Bhondu vide seizure memos Ex.P/56 and Ex.P/57 on the basis of information given by Moti vide Ex.P/54 and by accused Bhondu vide Ex.P/55 u/s. 27 of the Evidence Act. Lead pellets with swab were also seized and sealed in packets F to K. The 12 Bore DBBL Guns were sealed in packets A and B. All the sealed packets were sent to Forensic Science Laboratory. As per the FSL Report Ex.P/59 both the 12 Bore DBBL were serviceable fire arms. The examination of the barrels residues indicated that both the fire arms had been fired however the definite time of the last fire could not be ascertained. The lead pellets contained in packets F to K could have been fired from 12 Bore fire arms. 13. Investigating officer Inder Raj Singh PW-16 in his deposition stated that he recovered two 12 Bore Guns at the instance of accused Moti and Bhondu. He identified the said Guns Arts. 1 & 2 in the trial Court. 14. It is contended by Mr. Bajwa, learner,'ounsel for the appellants that the deceased had single aperture through and through. From the testimony of Ram Prasad PW-9 it is established that the fire that hit the deceased was made from a distance of 20-25 steps. As per post mortem report the deceased has an abraded collar surrounding the wound that could not be caused beyond the range of 20 inches. Post mortem report further reveals that the wound had no tattooing or blackening which shows that the fire had been made beyond 6-8 feet. Thus the presence of abraded collar on the one hand and absence of tattooing or blackening at other hand is mutually contradictory. Learned counsel further urged that it is not discernible as to whether the impugned wound had been caused by fire arm or some piercing sharp weapon because no pellet, broken piece of bullet, cord wads were found inside the wound. Reliance is placed on Bhoor Singh v. State, AIR 1974 SC 1256 wherein the Apex Court suspected that instead of fire arm the impugned injury might have been caused by some sharp weapon. It is further canvassed that the prosecution has not explained as to whether the injury on the person of deceased Subudhi was caused by bullet or pellets. Reliance is placed on Bhoor Singh v. State, AIR 1974 SC 1256 wherein the Apex Court suspected that instead of fire arm the impugned injury might have been caused by some sharp weapon. It is further canvassed that the prosecution has not explained as to whether the injury on the person of deceased Subudhi was caused by bullet or pellets. Normally 12 Bore Gun is not likely to discharge bullet it discharges pellets. While traversing 50-65 feet, the pellets were bound to show dispersion in an area of not less than 18 inches. No gun can be identified with the help of pellets alleged to have been discharged in the fire. 15. In order to appreciate the submission of learned counsel we have closely scrutinised the testimony of Dr. Nand Lal Sharma PW- 15 who conducted the autopsy on the dead body of Subudhi. According to Dr. Nand Lal Sharma, the dead body contained two fire arm wounds - wound of entrance and exit wound. The entry wound contained grease and collar of abrasion with clean cut inverted margins whereas the exit wound contained uneven and everted margins. It is established from the testimony of Dr. Nand Lal Sharma that the injuries sustained by the deceased could be the result of bullet injury if it was fired from a 12 Bore DBBL Gun containing bullet in one barrel and cartridge in another. Nothing could be elicited in the cross examination of Dr. Sharma that could suggest that the injury could be caused by some sharp weapon. Witness Ram Prasad PW-9 only expressed possibility about the distance of fire. We are satisfied that from the ocular testimony it is established beyond reasonable doubt that death of Subudhi was caused by fire arm. In Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883 it was held in para 42 by their Lordships of th( Supreme Court thus : "There is no doubt that she died as a result of the gunshot injuries which were inflicted by Beant Singh and Satwant Singh, one who shot from his service revolver and other from the carbine. In view of such clear evidence about the cause of death, the post mortem examination loses all its significance. In view of such clear evidence about the cause of death, the post mortem examination loses all its significance. It becomes important only in cases where the cause of death is to be established and is a matter of controversy." In the instant case the cause of death is not in controversy and it is established that Subudhi died as a result of gun shot injuries caused by 12 Bore DBBL Gun.In Gurucharan Singh v. State of Punjab, 1994 Cr.L.R. (SC) 24 their Lordships of the Supreme Court indicated as under - (Para 12). "The undisputed fact is that the two deceased were shot at by fire arms and the same is established by the medical evidence. When that is the position the manner in which the assailants shot at and how they took their positions while shooting and in what positions the injured persons were sitting or standing, can not be fixed in' a mechanical manner. There are any number of possibilities and such medical opinion does not in any manner said to be in conflict with the oral evidence." The wound of entrance in distant shot has been described by Modi in his book Medical Jurisprudence and Toxicology (21st Edition) at page 264 thus:- "The wound of entrance in distant shot;is usually smaller than the projectile due to the elasticity of the skin, and round when the projectile strikes the body at a right angle and oval when it strikes the body obliquely. The edges of the wound are inverted and the striking bullet covered with grease and smoke causes also a collar of abrasion contusion, which looks like a dark ring, showing two zones, the inner of grease and the outer of abrasion. This is characteristic of an entrance wound of fire arm and is found at all ranges. When a muzzle is pressed against a target, a contact entry is caused, here the forceful expansion of the gases of explosion and particles produce a blast effect in the skin and subcutaneous tissues. In contact wounds of skull the tissues may crepitate because of impounded gases (muscle fibres discoloured cherry red beneath, due to to CO) but there will be no evidence of burning, tattooing or soot; occasionally there may be a circular impression of the muzzle on the skin round the entry hole. In contact wounds of skull the tissues may crepitate because of impounded gases (muscle fibres discoloured cherry red beneath, due to to CO) but there will be no evidence of burning, tattooing or soot; occasionally there may be a circular impression of the muzzle on the skin round the entry hole. The edges (of the entry wound contact which is large and cruciate) may be ragged and everted and the exit wound is smaller." It is thus evident that abraded collar may surround the wound even if the fire arm is shot at a distance. We therefore find no merit in the submission of learned counsel. 16. Our attention has been drawn by the learned counsel to the various lapses of the investigation such as non recovery of empty cartridges cord wads from the place of occurrence, non-mentioning of details of FIR. in the inquest report etc. but on this ground we are unable to reject the testimony of injured eye witnesses as we find them trustworthy. Their Lordships of the Supreme Court in State of U.P. v. Sikandar Ali, AIR 1998 SC 1862 observed in para 11 thus: "This Court has repeatedly cautioned that the lapse of the investigation should not prevent the Court from accepting the eye witnesses evidence if it is otherwise truthful." 17. The prosecution has established from the material on record that the appellants Moti and Bhondu had recklessly opened fire with 12 Bore DBBL Guns for about 20 minutes at the mob of the voters with the knowledge that their act was imminently dangerous and it could in all probability cause death or such bodily injury likely to cause the death. This act was committed by them without any excuse. Although they may not have had a premeditated design to kill any particular individual yet they are guilty of murder in view of clause fourthly of Section 300 read with illustration (d) which read as under:- "Fourthly.-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid." "Illustrations (a) ..... (b) ..... (c) ..... (d) ..... A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. (b) ..... (c) ..... (d) ..... A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual." 18. The deceased Subudhi in his dying declaration Ex.P/50 deposed that the assailant was son of Sukhram. The appellant Bhondu is the son of Sukhram and from the statements of injured eye witnesses it is established that the injury sustained by the deceased was caused by the appellant Bhondu and he was rightly convicted u/s. 302 IPC. Appellant Moti also inflicted injuries by using fire arms and he shared common intention with appellant Bhondu in committing the offence. 19. In so far as charges u/ss. 147 & 149 are concerned, it may be noticed that the accused appellants Battilal, Guns and Bharatlal though present at the spot but they neither pelted stones nor opened fire. In the FIR though allegations against them were levelled but at trial the witnesses categorically stated that appellants Battilal, Guna and Bharatlal were only present and they were not involved in causing injuries to the deceased or injured persons. In Shamsher Singh & Ors. v. State of Uttar Pradesh, 1993 Cr.L.J. 3544 their Lordships of the Supreme Court had occasion to consider the provisions contained in Section 149 and it was observed thus : "Section 149, IPC, has been examined many cases. In its scope it is wide. In applying Section 149 the Court has to be satisfied about the common object and fix the membership of the accused in the alleged unlawful assembly. In the instant case on the day of occurrence an election had taken place and one can see as to how the atmosphere could have been prevailing in view of the long standing enmity between the two rival groups. Admittedly the factions of two rival groups were moving out briskly in the village. Therefore, it is difficult to say that even if four or five members were moving that all of them could have been members of unlawful assembly with particular object." In the instant case also we are of the view that the appellants Battilal, Guna and Bharatlal had no common object and they were not the members of unlawful assembly with a particular object. In our considered opinion the accused appellant Bhondu is guilty of having committed the offences u/ss. 302, 307 & 323 IPC. The appellant Moti is guilty u./s. 302 read with Section 34 IPC and Secs. 307 & 323 IPC. 20. Resultantly, the appeals of appellants E;attilal, Guna and Bharatlal stand allowed. Their conviction u/ss. 147, 302/149, 307/149 & 323/149 IPC is set aside and they stand acquitted from the said charges. They are on bail. They need not surrender. Their bail bonds stand discharged.The conviction of appellant Bhondu u/ss. 1,17 & 148 IPC stands set aside' and we confirm his conviction u/ss. 302, 307 & 323 IPC. We also acquit the appellant Moti from the charges u/ss. 147 & 148 IPC. We confirm his conviction u/ss. 307 & 323 IPC, but instead convicting him u/s. 302 IPC we convict him u/s. 302 read with Section 34 IPC to suffer imprisonment for life and fine of Rs. 1,000/- and in default to further suffer rigorous imprisonment for three years. Both the appellants Bhondu and Moti are in jail, they shall be retained to serve out the sentence awarded to them. 21. All the three appeals stand disposed of as indicated hereinabove.Appeal disposed of. *******