The present appeal was preferred in this Court by appellants Charan Lal, Hari, Ram Niwas and Ramesh against the judgment and order dated 9-10-1980 passed by Sri S. K. Saxena, VII Additional Sessions Judge, Meerut, in S. T. No. 315 of 1979. By the aforesaid judgment and order the appellants were convicted under Section 302/34, IPC and sentenced to undergo life imprisonment. The appellants were further convicted under Section 307/34, IPC and sentenced to undergo R. I. for a period of 10 years. However, both the sentences were directed to run concurrently by the learned Addl. Sessions Judge. 2. The brief facts of the case are that Lajja Ram, a young boy, had taken food for her mother, who was working in her field at about 1. 00 p. m. on 2-5-1979. While he (Lajja Ram) was returning back, he passed through the field of appellant Charan Lal. In the process he picked up an onion from the field of Charan Lal. Charan Lal saw it and gave some beating to the boy. Mother of the body Smt. Ramesh saw the incident. She asked Charan Lal as to why he has beaten a kid on his plucking up only a single onion from his field. On this Charan Lal beat her also with fists and kicks. He also hurled abuses on her. When her father-in-law, Nanak, returned to the house at about 6. 30 p. m. , Smt. Ramesh narrated the whole incident to him. Nanak then came to the shop of Charan Lal at about 7. 00 p. m. to lodge a complaint. Charan Lal was not present at his shop at that time. Instead, appellant Hari, son of Charan Lal, was there. Nanak enquired from Hari the whereabouts of Charan Lal and also asked Hari as to why Charan Lal beaten his daughter-in-law and grand son, Lajja Ram. On this, Hari, who probably knew about the incident from before, assaulted Nanak also. In the meantime, appellants Ram Niwas and Charan Lal arrived there armed with their guns. Appellant Ramesh also came to the spot with a revolver. They challenged Nanak and exhorted each other to kill the Harijan (Nanak ). Appellant Hari also brought his gun. In the meantime Garib Das came in front of the house of the accused persons on his way back to his house. Seeing Garib Das, Hari fired on him also. Appellant Ramesh also came to the spot with a revolver. They challenged Nanak and exhorted each other to kill the Harijan (Nanak ). Appellant Hari also brought his gun. In the meantime Garib Das came in front of the house of the accused persons on his way back to his house. Seeing Garib Das, Hari fired on him also. Garib Das ran a little distances on receiving the gunshot injury and fell down. Nanak then took to his heels. The gunshot report attracted some more Harijans who came to the spot and tried to stop the accused from perpetrating the crime against Harijans. On this all the four accused persons rushed towards Harijan Basti firing indiscriminately. They also got the shop of their maternal uncle Booley closed and took him with them. In the way Ram Das came across them. They fired upon him too, who, on receiving gunshot injury, fell in front of his house and died there. From their firing, Garib Das, Dayal, Bhuro, Ishowati, Mukhtiari, Maya, Harbans, Atri, Daram Raj, Darshan Dayal and Pappu sustained injuries. The incident was witnessed by large number of villagers. Old enmity with Harijans was also alleged against these persons. 3. Om Prakash went to lodge the report at P. S. Railway Road, Meerut. Investigation was taken up by M. L. S. Yadav, Inspector of P. S. Railway Road, Meerut, who finally submitted the charge-sheet on the conclusion of the investigation. Copy of the charge-sheet in Ext. Ka-27 on record. 4. All the injury witnesses were medically examined by P. W. 8 Dr. A. S. N. Singh. Their injury reports are on record and were marked as Exts. Ka-5 to Ka-17. Their X-ray examination reports (from pages 25 to 35 on the paper book) are also on record. 5. The post-mortem examination on the person of deceased Ram Das was conducted by P. W. 9 Dr. G. C. Agarwal. The post-mortem report is Ext. Ka-18 on record. The Doctor found the following ante- mortem injuries on the person of deceased Ram Das : (1) Gunshot wound of entry 0. 4 cm. x 0. 3 cm. x chest cavity deep, right side front of chest 1. 5 cm. above right nipple at 12 Oclock position. No blackening or scorching present. (2) Abrasion 3 cm. x 1 cm. on the right mastoid region. (3) Lacerated wound 0. 2 cm. x 0. 2. cm. 4 cm. x 0. 3 cm. x chest cavity deep, right side front of chest 1. 5 cm. above right nipple at 12 Oclock position. No blackening or scorching present. (2) Abrasion 3 cm. x 1 cm. on the right mastoid region. (3) Lacerated wound 0. 2 cm. x 0. 2. cm. skin deep front of right ear middle. 4th rib had a whole through and through. Pleura was punctured on the right side. Right lung was lacerated. Cause of death, as opined by the Doctor, was shock and haemorrhage as a result of injury to right lung. It was sufficient, in the ordinary course of nature, according to the autopsy surgeon, to cause death. Firing was resorted to from a distance of 10-15 feet. 6. The defence has denied the prosecution story and claimed that the incident had not taken place in the manner as alleged by the prosecution. Appellant Charan Lal has stated that he had gone to his field on the date of occurrence for keeping a watch. He saw Mahesh and Ramesh extracting stealthily onion from his field. He hurled abuses on them and snatched onion from them. Due to this, these persons attacked his shop and looted the property. 7. Appellant Hari also stated that he and his brother Ashok were sitting at their shop in the evening. Nanak with 22 odd persons armed with Lathi, Ballam and bricks etc. came there and abused him and his brother. They also beat them and started looting the goods at the shop. Ballam was struck on his chest. He suffered other injuries also. He then ran away from there after opening fire from his gun to escape the assault. His brother informed the police on telephone. Police arrived at the scene of occurrence. They had narrated to them the entire story but his report was not taken down. Number of telegrams were sent by his brother to the higher officials. When police did not get him medically examined, he got it done by moving an application in Court. In the nutshell Hari has claimed to have opened fire in exercise of right of defence his own person and in defence of his brother. 8. Appellant Ram Niwas claimed that he had sent information to the police officials and others about the incident and also sent several telegrams. Police came to the spot after the occurrence. In the nutshell Hari has claimed to have opened fire in exercise of right of defence his own person and in defence of his brother. 8. Appellant Ram Niwas claimed that he had sent information to the police officials and others about the incident and also sent several telegrams. Police came to the spot after the occurrence. He made entreaties with the police to accept his report as well but it was not taken down by the police. Appellant Ramesh claimed that the prosecution report was transcribed much later. He has been implicated on account of enmity. 9. The defence has examined D. W. 1 Dr. O. P. Chopra, Medical Superintendent, District Jail, Meerut. He had proved the injury of Hari as under : (1) Punctured wound 1-1/2 cm. 3/4 cm. 1 cm. on the front upper part chest left side 2 cm. below the left clavicle (sic ). (2) Punctured wound 1-1/2 cm. x 1 cm. x 3/4 cm. on the front part left side chest 8 cm. above the nipple 12 Oclock position. (3) Abrasion scabbed 1 cm. x 1/2 cm. on the front of left shoulder. (4) Punctured wound 1/2 cm. x 1/2 cm. x 1/2 cm. on the front middle of right forearm. (5) Abrasion scabbed 4 cm. x 2 cm. on the right side face with swelling about 6 cm. x 4 cm. (6) Scabbed abrasion 1/2 cm. x 1/4 cm. on the left ear. (7) Incised wound 1-1/2 cm. x 1/4 cm. x skin deep on the plamer aspect of the right hand. Extending from the base of the little finger upon middle finger base. (8) Scabbed abrasion 2 cm. x 1 cm. on the joint of right knee. (9) Abrasion 1/2 cm. x 1/2 cm. on the plamer aspect Ring finger base of the right (paper torn. ). (10) Abrasion 1/2 cm. x 1/4 cm. on the middle (sic) of Index finger of left base plamer aspect. 10. D. W. 2 Dr. B. C. Saxena had proved the injuries of Hari which were examined by him on 5-6-1979 on a direction by the Sessions Judge in a revision petition. He also stated that Hari was medically examined earlier on 4-5-1979. He had found 7 scar marks on his person which indicate that the injuries had healed. 11. The prosecution in support of its case examined P. Ws. He also stated that Hari was medically examined earlier on 4-5-1979. He had found 7 scar marks on his person which indicate that the injuries had healed. 11. The prosecution in support of its case examined P. Ws. 2 to 6 Tansukh, Garib Dass, Nanak, Smt. Ramesh and Sri Ranjeet as witnesses of fact. P. W. 1 Om Prakash, P. W. 7 Constable Harbir Singh, P. W. 8 Dr. A. S. N. Singh, who medically examined the injured, P. W. 9 Dr. G. C. Agarwal, who conducted post- mortem on the person of Ram Das, and P. W. 10 M. L. S. Yadav, the Investigating Officer, are the formal witnesses. 12. Three appellants, Hari Ram Niwas and Ramesh, have expired during pendency of this appeal. The report of the Chief Judicial Magistrate, Meerut, affirms this fact. There appeals, therefore, have abated. 13. So far as P. W. 1 Om Prakash is concerned, he has deposed unerringly that the firing was made by Hari alone. All the injuries to deceased Ram Das and other injured were caused by shots fired by him. P. W. 3 Garibdas, who is an injured witness, has also came out with the fact that when he reached near the shop of Charan Lal, he saw Nanak running away. He saw Ramesh, Charan Lal and Ram Niwas standing there. Charan Lal and Ram Niwas had gun while Ramesh had revolver in their hands. He proceeded towards his house. Near the turn leading to his house he heard Charan Lals exhortation kill one more Chamar, Hari at that time was on the roof of his house. He fired towards the witness (P. W. 3), who suffered injuries and fell down near his house. His father also received injuries in this incident apart from 10/11 others. This fact became known to him later on in the hospital. Therefore, he supports the case of the prosecution partially to the extent of Hari firing on him from the roof of his house and not from the lane, as alleged by P. W. 2 Tansukh. P. W. 4 Nanak has supported the motive behind the incident in its totality and also the facts that he had gone to the shop of Charan Lal. Hari and Ramesh were sitting there. When he enquired about Charan Lal from Hari, he was beaten by Hari. P. W. 4 Nanak has supported the motive behind the incident in its totality and also the facts that he had gone to the shop of Charan Lal. Hari and Ramesh were sitting there. When he enquired about Charan Lal from Hari, he was beaten by Hari. In the meantime the other accused also arrived there and exhorted Hari to fire on him. Hari ran back to his house and brought his gun. Ram Niwas, Ramesh and Hari were there at that time with Charan Lal. Ramesh had a revolver while the others were armed with gun. He ran away and took shelter in those of a sweeper. Garibdas, who passed that way, was fired upon by Hari from his roof. they all thereafter, came down and exhorted each other to kill the Chamars. They fired from their fire arms injuring several children and ladies, apart from Garibdas, Ram Das was also fired upon. He died. 14. P. W. 5 Rameshwati stated that at about 1. 00 p. m. some 9/10 months ago, she went to take mud from near the field of Charan Lal. She noticed a boy, while going with for the bread for his mother, picking an onion from the field of Charan Lal. On this Charan Lal assaulted that boy. She asked Charan Lal as to why he had beaten the boy as the onion is an eatable item and only one onion was plucked. Charan Lal on her intervention also beat her. She came back to her house and narrated the whole story to her father-in- law, on his return from his place of employment, in the evening. 15. The I. O. had collected blood, empty cartridges etc. from the spot. He examined Garibdas and other injured in the hospital. He had also filed copy of the General Diary of arrest of Hari and his lodging in the lock up of the police station. He admitted that there were simple injuries on his person, which were noted in the General Diary. He has filed its copy as Ext. Ka-25. On his advice, he was medically examined inside the Jail. Therefore, from this statement of his it is apparent that the prosecution is admitting the injuries on the person of Hari. He prepared the site plan of the place from where onion was plucked. The FIR was taken down by Head Moharir Tejbir Singh. Ka-25. On his advice, he was medically examined inside the Jail. Therefore, from this statement of his it is apparent that the prosecution is admitting the injuries on the person of Hari. He prepared the site plan of the place from where onion was plucked. The FIR was taken down by Head Moharir Tejbir Singh. He has proved it as Ext. Ka-1 and its copy as Ext. Ka- 24. The G. D. entry regarding registration of the FIR was proved as Ext. Ka-29 by him. 16. As earlier stated this appellant was attributed with the role of exhortation, though he is alleged to be armed with a gun, but there is no allegation that he has used his gun against any injured person or the deceased. It is unbelievable that if these persons were armed with gun and revolver they would not fire from their respective weapons upon the Harijans for the motive as alleged during trial is to be accepted. It refutes his presence at the spot. The role of shooting has only been attributed to Hari. The story of exhortation, as culled out by prosecution, on a scrutiny of the eye-witness account of P. Ws. 2 to 5, does not inspire confidence with regard to the evidence of exhortation by Charan Lal, the sole surviving appellant. It is admitted to P. W. 1 that the police personnel had arrived before lodging of the report. There exists a police outpost just half a mile away from the Harijan Basti in the village occurrence. It is possible that some information of the incident was communicated to this outpost and they in turn informed the concerned police station. This is how the S. H. O. came to the spot with a posses of police personnel before the FIR came into being. 17. The defence has come up with a case that they had made a phone call to the police, who had arrived at the scene of occurrence and took Hari in its custody. This is an admitted fact that Hari was taken into custody with his weapon by the policemen on the same day immediately on their arrival. Arrival of the constables from the police outpost does lend support to this defence story. This is an admitted fact that Hari was taken into custody with his weapon by the policemen on the same day immediately on their arrival. Arrival of the constables from the police outpost does lend support to this defence story. Therefore, the FIR could likely be prepared after the arrival of the large number of officers including C. O. , S. S. P. , D. I. G. and Magistrate. This witness did not elaborate how the information reached the police outpost. The incident had occurred during sunset hours, at 7. 00 p. m. on 2-5-1979. The FIR in the circumstances, reasonably may have been prepared in consulation with the officials and deliberately the prosecution has suppressed the defence case which was brought to their notice immediately on the arrival of the policemen from the outpost or police station. Pre-existence of enmity is an admitted feature between the parties, especially the family of Charan Lal and Harijans of the village. Admittedly some incident in the past had occurred between them. The counter version set up by the defence, therefore, cannot be said to be wholly false or machination of some legal brain. The defence case that when Hari was assaulted, he rushed to his house and went upstairs and used his gun from there against the mob which had taken to violence and looted his shop, in the circumstances discussed above, cannot be discarded lightly. The complete absence of any role to these persons except exhortation further strengthens the probability of the truthfulness of the defence version that it was Hari who alone had used the gun either to ward of the attack on himself or on sensing the belligerent mood of the crowd assembled at his shop. Learned Sessions Judge has given himself more to surmises and conjectures in convicting the exhorters. The exhortation is a weak type of evidence and as the prosecution had not stood by its case firmally as set up in the FIR that all of them had fired, we find it difficult to accept the case about exhortation. At the initial stage the FIR version is that Hari had fired on Garibdas. When some Harijans resented the firing, they rushed to the Harijan Basti. Maternal uncle of Hari has a shop in this basti. He was also withdrawn from there after closing his shop. At the initial stage the FIR version is that Hari had fired on Garibdas. When some Harijans resented the firing, they rushed to the Harijan Basti. Maternal uncle of Hari has a shop in this basti. He was also withdrawn from there after closing his shop. They resorted to firing on their return from this shop and Ramdas suffered injury in that process and died. But in the trial Court it is only Hari who was attributed with the role of firing and causing injuries to all the injured and the deceased. It is also alleged that firing was resorted to from the roof by him. P. W. 3 has admitted this fact. Hari may have later on entered the Harijan Basti in the process of chasing away the mob that had gone to his shop and caused loot and assault there. Thus, the story of exhortation does not stand to our reason. Moreover, their otherwise not causing injuring to any injured in the circumstances further lends assurance to the fact that no exhortation was given in the case. The incident occurred at the spur of the moment and Hari alone used a gun and caused injuries to the deceased and 11 other injured persons. Absence of any bullet injury on any injured or deceased further discredits the exhortation story despite one of being armed with a revolver. It is clearly an ingenuity. 18. In the circumstances the conviction of this sole surviving appellant Charan Lal cannot be sustained. The appeal in the consequence is allowed. The conviction of appellant Charan Lal is hereby set aside. He is acquitted of all the charges for which he has been convicted and sentenced. He is on bail. He need not surrender. His bail bond is cancelled and sureties are hereby discharged. Appeal allowed. .