Judgment B.N.P.Singh, J. 1. Polling for election of Mukhiya of Mollanganj Gram Panchayat was to be held in school, which situates in village Anantpur, in which people of villages Anantpur, Mustafapur, Kisrampur and Dayalibagha were to exercise their right of franchise. The contestants for the election to the office of Mukhiya were Mithilesh Sharma and Jagdish Yadav. The recitals made in the fardbeyan of Rajaram Yadav, father of the deceased, and also narrations made by the witnesses at trial eloquently suggest that on 24th May, 1978, at about 8.30 a.m. while Ram Pravesh Yadav was going to cast his vote along with other voters, he noticed assemblage of 10-15 persons near dalan of Rambali Singh holding arms with them who forbade them, not to cast vote. The prosecution case further is that the electorals on being scared by the exhortation made by the appellants and others, who had joined them near the dalan of Ram Bali Singh, ran towards north, pursuant to which Ram Bachan Singh having crossed the road, which lies west to the dalan of Rambali Singh, fired shots causing gun shot injuries on Ram Pravesh Yadav, who dropped dead in the field of Raj Keshwar Singh which too situates in village Anantpur, and within 5/10 minutes, the Police rushed to the place of occurrence along with Zonal Magistrate when fardbeyan of Rajaram Yadav, father of the deceased was recorded and investigation commenced. During investigation police recorded statement of witnesses, visited place of occurrence, prepared sketch map, noticed dead body of Ram Pravesh Yadav in the field of Raj Keshwar Singh at a distance of about 40-45 yards from the dalan of Ram Bali Singh, with copius blood there, seized empty shells of cartridges from the place of occurrence, sent them to Forensic Science Laboratory, prepared inquest report of the dead body and on getting post mortem examination held over the dead body of the deceased, laid charge sheet before the Court. 2. In eventual trial that commenced, the State examined altogether nine witnesses, of whom four were villagers of Mustafapur, and stated to have visited Polling booth to exercise their right of franchise. The State also examined Police Officer, Zonal Magistrate and also the doctor who held autopsy over the dead body of the deceased. 3. 2. In eventual trial that commenced, the State examined altogether nine witnesses, of whom four were villagers of Mustafapur, and stated to have visited Polling booth to exercise their right of franchise. The State also examined Police Officer, Zonal Magistrate and also the doctor who held autopsy over the dead body of the deceased. 3. The defence of the appellants both before the Court below and this Court had been plain denial of their complicity and their false implication due to political rivalry that being off shoot of Panchayat election. The trial court, however, while acquitted Mithilesh Sharma of the charges levelled against him, recorded finding of guilt against Ram Singh, Pramod Kumar, Binod Kumar Singh and Bali Sharma, negativing contentions raised on behalf of the appellants about their plea of innocence, in Sessions Trial No. 46 of 1982/70 of 1980, under Section 302/149 Indian Penal Code (IPC) and sentenced them to suffer rigorous imprisonment for life. These appellants also suffered conviction under section 148 IPC for which they were sentenced to suffer rigorous imprisonment for a term of three years with a direction that both the sentences shall run concurrently. 4. At the outset, we may briefly refer to, that though Ghosi P.S. Case No. 11(5)78 was drawn up against Sri Ram Singh, Pramod Singh, Mithilesh Sharma, Binod Singh, Bali Singh, Ram Bachan Singh and ten others, since Ram Bachan Singh absconded, Sessions Trial No. 46 of 1982/ 70 of 1980 commenced against others except Ram Bachan Singh. However, after Ram Bachan Singh participated in the trial, trial against him also commenced and on the same set of evidence, the trial court recorded finding of guilt against Ram Bachan Singh under sections 302 and 148 IPC and while on the first count, he was sentenced to suffer rigorous imprisonment for life for the second count, he was sentenced to suffer rigorous imprisonment for a term of three years with a direction that both the sentences shall run concurrently. Against the findings recorded by the trial court in both the sessions cases, two Criminal Appeals, one bearing Cr. Appeal No. 106 of 1989 was filed by appellant Ram Bachan Singh the other bearing Criminal Appeal No. 588 of 1987 was filed by rest who suffered conviction. Since both the appeals are analogous, and have been heard together, they are being disposed of by this common judgment. 5. Appeal No. 106 of 1989 was filed by appellant Ram Bachan Singh the other bearing Criminal Appeal No. 588 of 1987 was filed by rest who suffered conviction. Since both the appeals are analogous, and have been heard together, they are being disposed of by this common judgment. 5. Though various contentions were raised at Bar on behalf of the appellants to improbabilise the manner of occurrence alleged by the State and also to assail the findings recorded by the court below, first we wish to discuss, with brevity, the narrations made by the witnesses at trial which have been broadly spelt out in the judgment of the court below. 6. Sitaram Yadav (P.W. 1) was going to cast vote at the polling booth which situates in a school in village Anantpur, in the company of Rajaram Yadav, the deceased and others and when he reached the polling booth, he noticed assemblage of 15-16 persons holding arms near dalan of Rambali Singh and among them he identified only the appellants who exhorted to assault them and asked them not to cast vote. The witness states that when he ran towards north, shot was fired by Ram Bachan Singh from a place little ahead of dalan of Rajkeshwar Singh which hit Ram Pravesh Yadav in the neck who dropped dead. Narrations more or less in similar terms had been made also by Ram Bhajan Yadav (P.W. 2) and Ram Naresh Yadav (P.W. 3) about the appellants and others who had assembled at the dalan of Ram Bali Singh and were exhorting and restraining them from casting votes. They stated that they were chased for assault and when Ram Bachan Singh fired shots, Ram Pravesh Yadav sustained injuries and dropped dead. Since narrations made by these two witnesses are akin to the evidence of Sitaram Yadav (P.W. 1), we do not wish to reiterate them. Other person examined on behalf of the State, was Ram Lakhan Prasad (P.W. 5) who was a witness to the recording of fardbeyan of Rajaram Yadav by the police, on which he too appended his signature. Ram Lakhan Prasad (P.W. 5) was also a witness to the preparation of the inquest report by the Police. The other witnesses examined by the State are Police Officer and doctor. Ram Lakhan Prasad (P.W. 5) was also a witness to the preparation of the inquest report by the Police. The other witnesses examined by the State are Police Officer and doctor. Dhaneshwar Pathak (P.W. 4), Sub Inspector of Police, states about drawal of fardbeyan by Giridhar Pandey (P.W. 7) on the basis of which First Information Report was drawn up. He stated to have taken charge of investigation, apprehended suspects on recording statement of witnesses, seized blood stained articles which were eventually sent to Forensic Science Laboratory. The other witness examined by the State was Giridhar Pandey (P.W. 7) a Police Officer, who had been deputed at Bandhuganj in connection with polling that was to be held that day, and he stated that on receipt of information about shooting incident, he rushed to village Anantpur in the company of Zonal Magistrate, where fardbeyan of Rajaram Yadav was recorded by the Police and also the inquest report over the dead body, was prepared. The police officer seized empty shells of cartridges in his presence, prepared sketch map and also apprehended some of the suspects. Admittedly testimony of Krishna Nandan Singh (P.W. 8) was of no use because he appeared to be a quite different person who was sought to be examined at trial. P.W. 9 happened to be Zonal Magistrate and he too states that on receipt of information about shooting incident in village Anantpur, he rushed there when fardbeyan of the father of the deceased was recorded and also inquest report over the dead body was prepared by the Police. This witness too states about seizure of offending articles from the place of occurrence by the Police. 7. Now other witness against whom a lot of comments has been made by the learned counsel for the appellants, happens to be Dr. Kameshwar Prasad Sharma (P.W. 6), who held autopsy over the dead body of Ram Pravesh Yadav. Now coming to the evidence of the doctor, we find that the doctor noticed entrance wound circular inverted on the back of the left scapula measuring 1/3" x 1/3". The track inside was 11" deep to the exit wound situated on the right side of the neck 1-1/2" behind the right ear measuring 1-1/4" x 1/2" everted and lacerated margins. There were no tatooing marks on the entrance wound. No bullet or foreign material was found inside or outside the wound. The track inside was 11" deep to the exit wound situated on the right side of the neck 1-1/2" behind the right ear measuring 1-1/4" x 1/2" everted and lacerated margins. There were no tatooing marks on the entrance wound. No bullet or foreign material was found inside or outside the wound. 4th and 5th cervical vertebra along with blood vessels, cervical muscles, trachea and left lung, oesophagus were pierced through and through. This injury in estimation of the doctor was anti mortem in nature and was due to shock and haemorrhage and damage to the vital organ, which was sufficient in ordinary course of nature to cause death. This is all the evidence that has been adduced on behalf of the State. 8. Lot of criticisms were made by the learned counsel for the appellants to dislodge the findings recorded by the court below, finding the appellants guilty of the charges with which they were saddled at trial. Contentions were raised at Bar that if narrations made by the witnesses including that of doctor, which were principally relied by the trial court, is considered in proper perspective, the deceased on exhortation made by the appellants and others ran towards north when he sustained gun shot injuries in his left scapulla which pierced through, causing wound on the neck, and if this situation is accepted to be true, it was most unlikely that the person firing shots from the west would cause gun shot injury on the left scapula of the deceased who was running towards north. While commencing on the finding recorded by the doctor, the learned counsel would urge that if the gun shot fired by Ram Bachan Singh had hit left scapulla, it looks quite improbable that the bullet would travel towards the neck in the right direction. 9. We have given our anxious considerations to this aspect of the case and have also taken note of the narrations made by the witnesses to assess possibility of the injuries on the deceased in view of the posture of the assailants and also the deceased. Narration made by P.W. 2 was that, when Ram Bachan Singh fired shot, the deceased and other witnesses ran in the north direction from the assailant, at a distance of about 40-45 yards. Narration made by P.W. 2 was that, when Ram Bachan Singh fired shot, the deceased and other witnesses ran in the north direction from the assailant, at a distance of about 40-45 yards. There has been finding of the Investigating Officer that the dalan of Ram Bali Singh from where the assailant is suggested to have fired shots, situates at a distance of about 50 yards from the field of Rajkeshwar Singh where the dead body of Ram Pravesh Yadav was noticed. The Investigating Officer would further narrate that the field, where the dead body of Ram Pravesh Yadav was noticed, situates in the north and west direction from village Anantpur. The narration made by other witnesses too deserve consideration. Sitaram Yadav (P.W. 1) states that for going to village Mustafapur, one has to go 400 yards ahead in the north direction and then one has to move towards west. Ram Naresh Yadav (P.W. 3) states that booth lies straightway in the east direction from the village and they returned after firing, in the same direction from which they had come. Even the recitals made in the first information report would eloquently suggest that Ram Bachan Singh took recourse to firing from south-east direction and once this situation is accepted, possibility of Ram Pravesh Yadav sustaining injury on the left scapular region cannot be said to be a remote possibility. 10. Lot of comments were made also about the positive findings recorded by the doctor who noticed that the bullet had travelled through left scapular region, in the neck. The trial court rightly noticed that scapula being a bony portion of the body, it was not unlikely that the bullet reflected to right direction in the neck, notwithstanding entry in the scapular region in the left side. The trial court while rejecting such plea, has assigned good and sturdy reasons which we too endorse, and that apart, if a man is shot in the moving posture, it is not unlikely that he may sustain injury on any part of his body, and we may profitably refer to a decision of the Apex Court of the land reported in [ (1998) 6 SCC 240 (State of Bihar vs. Ram Padarath Singh and others]. In that case, the bullet had entered from the left temporal area and had gone back from the right occipital bone. In that case, the bullet had entered from the left temporal area and had gone back from the right occipital bone. Though witnesses were stating that the deceased sustained injury on the neck, there was no such finding by the doctor. However, the Apex Court noticed that apparently the eye witnesses had seen the incident from some distance and there was probability of commission of mistake in stating situs of the injury. Though the doctor had noticed entry wound on scapular region, rightly the witnesses were stating the wound to be on the right side of the neck which was the exit wound. The movement of the deceased while running with stinct of self preservation and having changed the direction of his movement while moving, cannot be said to be a remote possibility and that apart, P.W. 3 states that shortly after being chased, they ran towards village which situates west to Anantpur. We may usefully refer to other decision of the Apex Court reported in 2002 SCC (Cri.) 371 (Pandurang Kalu Patil and another vs. State of Maharashtra) in which observations were made by the Apex Court that even though a running person sustained injury on the front side in the process of being chased, that aspect is not enough to draw correctness of the identification of the witness for, it is quite possible that as per the reflect action, while running, deceased would have turned back either to see whether he had gone out of range of peril or to know the nearness of it. The mere fact that the deceased sustained gun shot injury not on back while running forward cannot rule out the possibility of twirling of the deceased when gun shot was fired. Arguments on this score are accordingly found to be of no substance. 11. The other contention raised on behalf of the appellants was that since Rajaram Yadav, who was maker of the fardbeyan, was not examined at trial, all vitality of the prosecution case, loses all its significance and on this score too, we negative such argument, as only by reason of non-examination of the first informant, entire prosecution case being reliable, cannot be thrown over board. That apart, there had been evidence of Ram Naresh Yadav (P.W. 3) and Ram Lakhan Prasad (P.W. 5) that after tragic incident, in which Raja Ram Yadav lost his son, he turned insane for which he was treated at Ranchi. The unfortunate father also lost his wife, and if a father, who had lost his son and wife, had not come to the witness box, one cannot blame the prosecution for withholding a significant witness. The other contention raised on behalf of the appellants was that even though P.Ws. 2 and 3 were very much available at the place of occurrence when the Police visited there, their statements were not recorded. But we find that these witnesses were examined by the Police Officer only on the next day of the incident and this argument too did not demonstrate any dent in the probability of the prosecution version. 12. Unable to find any meaningful criticism, it is sought to be urged that even after an electorate had been shot at, it was quite unusual that one of the polling party rushed to the place of occurrence and on this score too we find that within 5-10 minutes of the incident, the Police Officer who had been deputed to Bandhuganj Police Station rushed to the place of occurrence along with the Zonal Magistrate. Contentions are raised that since the polling booths were located in a school at a distance of 200-225 yards from the house of Rambali Singh, visibility of the appellants from such a distance was a remote possibility, and in quick succession it is also urged that even though the appellants were suggested to have abused the electorates, no complaint was ever registered with the polling party and we find that these are the matters of petty details which do not befog the real issue and also broad feature of the prosecution case. Since the appellants suffered conviction also under section 149 IPC, on this score also, lot of arguments were sought to be pressed into service on behalf of the appellants and it is stated that taking the prosecution version to be true and also the narrations made by the witnesses, the appellants exhorted only for assaulting and in view of paucity of any overtact attributed to appellants, except appellant Ram Bachan Singh, there was no evidence to draw a conclusion that their object was to commit murder and they too had been actuated with such common intention. It is stated that even if narrations made by witnesses about exhortation and forbading made by appellants is to be given literal meaning, object of the appellants was only to prevent electorate to Mustafapur from casting vote. P.W. 3 states that though other persons too had joined the appellants with arms, he could not see even arms held by them. This is not in dispute that except firing by Ram Bachan Singh, no attribution was ever assigned to other appellants either for stepping forward or committing any overtact and if P.W. 2 is considered to be true, it was Ram Bachan Singh alone who crossed the road, came 5-7 yards forward and fired shots, pursuant to which Ram Pravesh Yadav sustained gun shot injury and dropped dead in the field of Rajkeshwar Singh and on these premises it is urged that even if it is found that the assemblage of the appellants was unlawful, there was no good and credible evidence to draw a conclusion that Ram Bachan Singh had fired shots in furtherence of common intention. The polling was going peacefuly and the persons who had to cast vote had been in the queue. No one even came to the polling booth to disturb the polling process and no one prevented them from casting vote. The polling was going peacefuly and the persons who had to cast vote had been in the queue. No one even came to the polling booth to disturb the polling process and no one prevented them from casting vote. There had been only bald exhortation by appellants, and that apart exhortation made by the appellants did not necessarily mean execution of killing of the deceased, and on these premises, we too find that mere fact that other appellants (except Ram Bachan Singh) came together was not sufficient to indicate that they had come having shared common intention to commit murder of Ram Pravesh Yadav and they as such, would not be liable for vicarious liability to be fastened to them by legal fiction of application of Section 149 IPC. It was an isolated and individual act of Ram Bachan Singh for which other appellants may not have any knowledge. There was no evidence about their premeditation, and on these premises, finding of guilt recorded against them under section 302/34 IPC is set aside and they are acquitted of the charges levelled against them. However, in view of evidence that they were noticed near the dalan of Rambali Singh holding arms, they are found to be member of unlawful assembly. Since other appellants except appellant Dilkeshwar Singh were holding sharp edged weapons, they are found guilty under section 148 IPC and as for Dilkeshwar Singh, who was holding hard and blunt substance, he is found guilty under section 147 IPC. Cr. Appeal No. 588 of 1987 succeeds in part and the appellants are acquitted of the charge under section 302/149 IPC. 13. In the result, while we uphold the findings recorded by the Court below against appellant Ram Bachan Singh in Cr. Appeal No. 106 of 1989 and dismiss the appeal, set aside conviction and sentence recorded under section 302/149 IPC against the appellants in Cr. Appeal No. 588 of 1987. We, however, uphold the findings of the trial court recorded against these appellants under section 148 IPC, for which they are sentenced to the period already undergone by them, as they have suffered the ordeal of protracted prosecution for about 24 years. Appeal No. 588 of 1987. We, however, uphold the findings of the trial court recorded against these appellants under section 148 IPC, for which they are sentenced to the period already undergone by them, as they have suffered the ordeal of protracted prosecution for about 24 years. Since appellant Ram Bachan Singh is on bail, his bail bonds are cancelled and it is directed that the trial court shall take all coercive steps to consign him to custody to serve out the sentences awarded to him by the trial court. P.K.Sinha, J. 14 I agree.