Judgment P.K.Sinha, J. 1. Both the appeals aforesaid emanate from the same Judgment, hence have been taken up together and wouk be disposed of by this Judgment. 2. Altogether 17 accused had faced trial but the appellants,aforesaid,alone were convicted, others having been acquitted. Appellants Ram Bachan Yadav and Jaleshwar Yadav were convicted under Section 302 of the Indian Penal Code ("the Code" in short ) and under Section 27 of the Arms Act and sentenced to imprisonment for life and for one year, respectively, whereas appellant Jaleshwar Yadav was further convicted under Sections 307 and 323 of the Code for which the sentences were rigorous imprisonment for seven years and rigorous imprisonment for three months, respectively. Appellant Shripat Yadav was sentenced to undergo imprisonment for life under Section 302 read with Section 34 of the Code and further sentenced to undergo rigorous imprisonments for seven years and one year, respectively, under Section 307 of the code and under Section 27 of the Arms Act. 3. Briefly stated the case of the prosecution,as coming out for the FIR, dictated by Baban Yadav (PW 5) at about 10.15 p.m. on 1.7.1995, was that when at about 7.30. p.m. he with his brother Ram Nath Yadav was coming to home and reached near the thatched palani of appellant Jaleshwar Yadav situated near the house of his brother Ram Nath Yadav. Jaleshwar Yadav suddenly assaulted the informant on head with lathi, causing injury whereafter on hulla, Jaleshwar Yadav further assaulted., felling him down. When the family members of informant came to save, Jaleshwar Yadav brought from his house licenced double barrel gun and fired at informants brother Banarsi Yadav in his abdomen, killing him. Meanwhile appellant Ram Bachan Yadav also fired from his double barrel gun which hit his neighbour Brij Bihari Yadav who was standing near his palani who also died. Jaleshwar Yadav then fired at informants brother Ram Nath Yadav, injuring him in the right hand. Appellant Shripat Yadav, with his country made pistol fired at Ram Raj Yadav injuring his right hand. Thereafter other accused, allegedly belonging to the party of the aforesaid appellants, came there, variously armed, but when Jaleshwar Yadav asked to make good their escape, all fled away. On hulla, co-villagers came including Nehru Yadav, PW 1. The reason of assault was previous enmity relating to land. 4. Thereafter other accused, allegedly belonging to the party of the aforesaid appellants, came there, variously armed, but when Jaleshwar Yadav asked to make good their escape, all fled away. On hulla, co-villagers came including Nehru Yadav, PW 1. The reason of assault was previous enmity relating to land. 4. The defence of the appellants was denial of their complicity in the alleged occurrence claiming that as a matter of fact informant side had assaulted the appellants. Out of 12 witnesses examined by the prosecution, PWs 8, 9 and 10 are witnesses to the seizures made by the police. Whereas PW 12 is a formal witness. PW 11 Yamuna Singh is the Investigating Police Officer whereas Dr. Ambika Prasad Mandal, PW 6 had conducted the postmortem upon the deceased. PW 7, Dr. Triveni Lal, had Examined the injuries of PW 2 Ram Raj Yadav. PW 4 Ram Nath Yadav and of the informant, PW 5. Besides the aforesaid injured witnesses, PW 1 Nehru Yadav who was also named in the FIR and PW 3, Hanuman Yadav, have supported the prosecution case as eye witnesses. 5. In his evidence PW 1, Nehru Yadav, has said that on 1.7.1995, at about 7.00 p.m. while he was at his house he came out hearing sound of Baban Yadav, the informant, and found injury on his head. He saw appellant Jaleshwar Yadav hit on the head of Baban Yadav with lathi, who fell down. Radha Yadav and Shringar Yadav asked hem to bring firearms. He has also named other accused. According to him Jaleshwar Yadav murdered Banwari Yadav by firing from his double barrel gun and Ram Bachan Yadav, appellant, fired from his double barrel gun which hit deceased Brij Bihari Yadav in the chest, killing him. Kailash Yadav fired from his country made pistol which hit Ram Nath Yadav on his right hand and appellant Shripat Yadav fired from similar weapon upon Ram Raj Yadav, injuring his right arm. Vajay Yadav fired from his country made pistol at Raj Nath, which missed him and hit the calf of she-buffalo. Firing of Ramdeo also hit the calf. He is also a witness to the inquest report of the deceased This witness has stated that all witnesses were related to each other. He was cross- examined at length about the topography of the place of occurrence. Firing of Ramdeo also hit the calf. He is also a witness to the inquest report of the deceased This witness has stated that all witnesses were related to each other. He was cross- examined at length about the topography of the place of occurrence. From this it will appear that houses of deceased Banwari and appellant Jaleshwar Yadav were nearby. From cross-examination it also is clear that Ram Nath had suffered injury near the house of Jaleshwar Yadav. The house of this witness was also near the house of Jaleshwar Yadav, appellant. Many contradictions, mostly omissions were taken from him. When PW 11 the Investigating Officer was confronted with such omissions, he admitted, mostly on minor points that such statements were not given but he said that PW 1 had told him that Ram Bachan Yadav had fired hitting Brij Bihari Yadav. He also admitted that this witness had told that Jaleshwar Yadav had fired again which hit Ram Nath and that he also said that appellant Shripat Yadav had fired from his country made pistol which hit Ram Raj Yadav. PW 10, however, admitted that this witness had named only appellants, apart from Tarkeshwar Yadav. 6. This witness also admitted that appellant Jaleshwar Yadav had filed a case on that very day against them but denied that he had seen injuries upon Jaleshwar Yadav and Radha Kishun Yadav. 7. PW 2 is Ram Raj Yadav, one of the injured who similarly supported the prosecution case stating that when he reached on hearing the voice of the informant, he found his head injured and Jaleshwar Yadav having assaulted the informant on his knee with lathi, went to his house and called others and came back with his licenced gun. This witness said that Shringar Yadav and Radha Kishun Yadav ordered for assault at which Jaleshwar Yadav fired at Banwari Yadav and Ram Bachan Yadav fired at Brij Bihari Yadav who both died. The witness also said that appellant Shripat Yadav had fired from his country made pistol hitting his arm. He also said about two other accused assaulting others. In cross- examination he said that he was also sent to the Government hospital. He said that his house was about 100 steps away from the place of occurrence. He denied having seen any injury upon Jaleshwar Yadav and showed ignorance about the counter case. He also said about two other accused assaulting others. In cross- examination he said that he was also sent to the Government hospital. He said that his house was about 100 steps away from the place of occurrence. He denied having seen any injury upon Jaleshwar Yadav and showed ignorance about the counter case. This witness was full brother of the deceased Banwari Yadav. Contradictions, mostly omissions were taken from this witness also. Investigating Officer admitted that this witness had told about weapons at the hands of three appellants. Therefore, it will appear that this witness by and large has supported the prosecution case. 8. PW 3, Hanuman Yadav, has similarly supported the prosecution case, first having seen bleeding from the head of informant and, thereafter,Jaleshwar Yadav calling others also after which he brought back from his house his licenced gun and about other accused including the appellants coming there. He supported that Jaleshwar Yadav and Ram Bachan Yadav had double barrel guns whereas Shripat Yadav had a country made pistol. He supported that Jaleshwar Yadav had killed Banwari and Ram Bachan Yadav killed Brij Eihari Yadav. This witness said that Shripat Yadav had fired from his country made pistol injuring right hand of Ram Raj Yadav. He also said about assault by other accused. He further said that in course of treatment the right hand of Ram Nath was amputated. 9. At the cross-examination this witness has also given satisfactory replies about the place of occurrence. According to him the blood had also fallen down, at the place of occurrence. In cross-examination this witness denied that he has seen any injury upon Jaleshwar Yadav and Radha Kishun Yadav but admitted that Jaleshwar had also lodged a counter case in which he also was an accused. About contradictions and omissions asked of this witness, PW 11 was queried who said that this witness had not said that shot fired by Jaleshwar Yadav had hit in the abdomen of Banwari Yadav and shot fired by Ram Bachan had hit the chest of the deceased. But it appears that no contradiction was taken as to whether he had said about these two appellants firing upon their victims, simpliciter. This witness was asked questions only about particular organs of the body of the victims having been hit. 10. But it appears that no contradiction was taken as to whether he had said about these two appellants firing upon their victims, simpliciter. This witness was asked questions only about particular organs of the body of the victims having been hit. 10. PW 4, brother of the informant appears to have been tendered but in the cross-examination he admitted about filing of the counter case. Informant in his evidence has fully supported the allegations made out in the FIR as to who had assaulted whom particularly about the role played by the three appellants. He also said about filing of the FIR, whereafter two other injured were sent to the hospital, as well about preparation of his injury report by the Police Officer whereafter he said that he was sent to nearby hospital from where he was sent to the hospital at Buxar. He also has given the reason for occurrence saying that he had purchased land from brother of Jaleshwar Yadav which was not liked by Jaleshwar Yadav, further stating that accused persons had blocked his way which he got opened under orders of the Collector. This witness also has given satisfactory replies about the place of occurrence. Informant has admitted about the filing of the counter case by Jaleshwar Yadav but denied having seen any injury either upon Jaleshwar Yadav or upon Radha Kishun Yadav. 11. From the evidence of these eye witnesses, I find that they creditably have supported the prosecution case about the role played by the three appellants in the occurrence. Now to the medical evidence available on record. 12. PW 6 had performed autopsy upon the deceased Banwari Yadav on 2.7.1995 and recorded following findings : "(i) Cloth stained with blood, ganji perforated, eye and mouth closed, Rigor mortis present in all limbs." "(ii) Badly lacerated wound in abdomen umblicus to pelvic bone of size 10" x 8" x abdominal cavity deep, from which loop of intestine was coming out." A careful examination also revealed corresponding injuries, and three pellets were recovered from the body. In his opinion the injury was caused by a weapon like gun resulted in death. 13. This witness also had performed autopsy upon the dead body of Brij Bihari Yadav and his findings were as follows : "Eye and mouth closed; Rigor mortis present in all limbs. In his opinion the injury was caused by a weapon like gun resulted in death. 13. This witness also had performed autopsy upon the dead body of Brij Bihari Yadav and his findings were as follows : "Eye and mouth closed; Rigor mortis present in all limbs. Three pellet injuries over right and one pellet injury over left side of chest. Three pellet injuries over apigastric (region)." 14. On further examination the doctor also found the heart ruptured. Two pellets were recovered from chest cavity which he sealed. In his opinion injuries were caused by firearm such as gun which resulted in death. The post-mortem reports are Exhibits 3 and 3/1. 15. PW 7, the doctor, had examined Ram Nath Yadav on 1.7.1995, at 10.40 p.m. found following injuries :. "Extensive lacerated wound including skin, face, muscle and bone associated with profuse bleeding over the upper part of the right arm, caused within six hours." 16. The doctor found the injury to be serious and referred him to the hospital at Buxar. He also examined witness Ram Raj Yadav on the same day and found lacerated wound over right arm, associated with profuse bleeding, caused within six hours. He also was referred to Buxar. On 2.7.1995 he examined the informant at 5.30 a.m. and found he following injuries over his person: "(i) lacerated wound 3" x 1/2" over the posterior aspect of left parietal region on the head. "(ii) Bruise 4" x 3. 1/2" associated with restricted movement of the right ankle joint. 17. According to the evidence, the injuries were caused by Jaleshwar Yadav. For injury No. 2 the injured was also referred to hospital, but on the basis of X-ray report the doctor found both the injuries to be simple. 18. PW 8 was a witness of seizure whereas in presence of PW 9 live cartridges were recovered from the house of Jaleshwar Yadav and was also a witness of the seizure of the double barrel gun recovered from the same house. PW 10 was a witness of recovery of the gun from the house of Jaleshwar Yadav and seizure of double barrel gun with cartridges from the house of Ram Bachan Yadav. PW 11 in his evidence has supported the place of occurrence and also deposed about seizures made by him. He also sent the calf of the she-buffalo to the veterinary doctor for examination. PW 11 in his evidence has supported the place of occurrence and also deposed about seizures made by him. He also sent the calf of the she-buffalo to the veterinary doctor for examination. He said that the report of examination of the guns was not received from the Surgeant Major. 19. On a careful consideration of entire evidence on record, I find the same to be good and sufficient to bring home the allegation made by the prosecution against the three appellants. 20. The main flank of the arguments of the learned counsel for the appellants was that evidently appellant Jaleshwar Yadav had received injury on the same day and had filed a first information report, Exhibit-B, relating to Itarhi P.S. Case No. 66 of 1995 under Section 147,148,447, and 323 of the Code. It was admitted that the police after investigation had submitted final report in that case whereafter protest petition at exhibit- 3,had been filed. Ext. A would show that after enquiry on protest petition the accused were summoned by order dated 3.3.1995. 21. Shri Rana Pratap Singh, learned counsel appearing for the appellants argued that even if the prosecution case is held to be true, the claim of the appellants for right of private defence cannot be ignored. In view of this argument a question would arise as to whether the appellants had a right of private defence. However, it will appear that as per Exhibit-B, no allegation of any offence punishable under Section 324 of the code was made out but the accused were summoned for that also. In the complaint also the allegation about assault upon appellant Jaleshwar Yadav was by lathi. As informant in the police case he claimed that after assault by hard and blunt weapon he fell down and became unconscious and did not know what happened thereafter. In this regard state- merit of appellant Jaleshwar Yadav under Section 311 of the Code of Criminal Procedure may be seen. Jaleshwar Yadav said that Ram Nath Yadav and Baban Yadav had assaulted him with lathi, as a result of which he became unconscious. Therefore, the averments in the police case as well in the protest petition which was treated as complaint and in his statement under Section 311 of the Code of Criminal Procedure this witness admits that after receiving assault he became unconscious. Therefore, the averments in the police case as well in the protest petition which was treated as complaint and in his statement under Section 311 of the Code of Criminal Procedure this witness admits that after receiving assault he became unconscious. This assertion, therefore, denies the claim that having been assaulted he had retaliated with the right of private defence injuring the informant and others. In that view of the matter the plea of right of private defence does not appear to be available to the appellants. No other evidence has been brought on record that the right of private defence was exercised by an other accused, including other appellants. 22. In the last learned counsel for the appellants argued that the appellant Shripat Yadav could not have been convicted under Section 302 read with Section 34 of the Penal Code. Learned counsel also submitted that in the circumstances of the case Shripat Yadav cannot even be convicted under Section 307 of the Code, keeping in view the injury caused by him at a non-vital part of the body. 23. Obviously this appellant is not said to have indulged into any overt act in so far as the two murders are concerned, for which the evidence is clear as to who had killed the deceased. He is only said to have fired upon Ram Raj Yadav which hit his arm. It will also appear that Jaleshwar Yadav was at the place of occurrence from before but other accused including other appellants came there on his calls, variously armed. Therefore, it does not appear that there was any common intention of all to cause murder of anyone. Common intention to commit a crime may emerge even at the spur of moment at the spot also, but there is no evidence to suggest that Shripat Yadav or any other accused on their arrival at the place of occurrence had said or done anything to show that they had shared common intention, with the two assailants, to commit the murder of two persons. PW 7 had found one lacerated wound on the right arm of the injured said to have been fired upon by Shripat Yadav which was bleeding profusely but he reserved his opinion. No medical evidence has been brought on record as to what opinion this witness formed subsequently. 24. PW 7 had found one lacerated wound on the right arm of the injured said to have been fired upon by Shripat Yadav which was bleeding profusely but he reserved his opinion. No medical evidence has been brought on record as to what opinion this witness formed subsequently. 24. Therefore, though not finding that appellant Shripat Yadav had common intention to kill any of the two deceased, I hold that he had fired upon PW 2 causing him extensive lacerated wound on the right arm which was bleeding profusely. It is apparent that he had fired at Ram Raj Yadav and if the shot had diverted only a few inches that could have proved to be fatal. Therefore, I find that though Shripat Yadav could not have been convicted under Section 302 read with Section 34 of the Indian Penal Code and deserved acquittal on that count, but that he was rightly convicted under Section 307 of the Indian Penal Code and under Section 27 of the Arms Act, However, in the circumstances of the case, also keeping in view the actual injury to a non-vital part of the body, in my view, a sentence of four years of rigorous imprisonment under Section 307 of the Penal Code would serve the ends of justice. 25. In the circumstances Cr. Appeal No. 550 of 1999, is dismissed. 26. In so far as Cr. Appeal No. 451 of 1999, is concerned, so far appellant Jaleshwar Yadav is concerned, his appeal is dismissed, but the appeal on behalf of Shripat Yadav, is allowed in part. Shripat Yadav is acquitted of the charge under Section 302 read with Section 34 of the Indian Penal Code but his conviction is confirmed for other offences. While confirming his conviction under Section 307 of the Penal Code his sentence is reduced to 4 years of rigorous imprisonment but his conviction and sentence under Section 27 of the Arms Act are upheld. Both sentences would run concurrently. Bail bonds of appellant Shripat Yadav are hereby cancelled, who be taken into custody for undergoing the remaining period of sentence in custody if he has remained in custody for a period lesser than the period of sentence. P.K.Sinha, J. 27 I agree.