JUDGMENT 1. - The appellants eight in number were indicted before learned Special Judge, SC/ST (Prevention of Atrocities) and Sessions Judge Karauli in Sessions Case No. 31/1999 for having committed murder of Babu. Learned Special Judge vide judgment dated 9.5.2001 convicted and sentenced the appellants as under:- U/s. 302/149 IPC To suffer imprisonment for life and fine of Rs. 1,000/-, in default to further suffer Six Months Imprisonment. U/s. 148 IPC To suffer One Year Rigorous Imprisonment and fine of Rs. 200/-, in default to further suffer Two Months Imprisonment. U/s. 323 IPC To suffer Three Months Simple Imprisonment. U/s. 324/149 IPC To suffer One Year Rigorous Imprisonment and fine of Rs. 200/-, in default to further suffer Two Months Imprisonment. U/s. 3 SC/ST (PA) Act To suffer Two Years Rigorous Imprisonment and fine of Rs. 500/-, in default to further suffer Three Months Imprisonment. All sentences were ordered to run concurrently. 2. Put briefly the prosecution case is that Kalu Ram ASI, Incharge O.P. Town Karauli recorded the parcha bayan of Raju Lal (PW-26) on 20.1.1995. In the said Parcha Bayan Raju Lal stated that he along with his brother Babu (now deceased) had gone to village Raghuvanshi for casting their votes at around 9.00 a.m. Finding riot took place in the village they rushed towards Dogar (small hill) and climbed on it. Suddenly somebody fired the gun and he saw his brother lying down. Babu was removed to Karauli Hospital where he was declared dead. He did not know as to who opened the fire but the bullet hit at stomach of Babu. The said parcha bayan was handed over by Kalu Ram to SHO Police Station Kungaon, where the case u/s. 302 IPC was registered and investigation commenced. On completion of the investigation the charge-sheet was filed only against Kalicharan and Mukesh. In due course the case came up for trial before the learned Special Judge SC/ST (PA) Act and Sessions Judge (Karauli. Charges u/ss. 148, 323, 324, 307/149, 302 & 302/149 IPC and Section 3 SC/ST (PA) Act were framed. Kalicharan and Mukesh denied the charges and claimed to be tried. After recording evidence of some of the prosecution witnesses, the trial Judge took cognizance u/s. 319 Cr.P.C. against Girraj Prasad, Chand Mal, Naval Kishore, Munna and Dinesh @ Kullahad. Aforesaid charges were framed against those accused persons. They also denied the charges and claimed trial. Kalicharan and Mukesh denied the charges and claimed to be tried. After recording evidence of some of the prosecution witnesses, the trial Judge took cognizance u/s. 319 Cr.P.C. against Girraj Prasad, Chand Mal, Naval Kishore, Munna and Dinesh @ Kullahad. Aforesaid charges were framed against those accused persons. They also denied the charges and claimed trial. The prosecution in support of its case examined as many as 30 witnesses. In their explanation u/s. 313 Cr.P.C., the appellants claimed innocence. No evidence in defence was examined. Learned Trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. 3. In order to prove the death of Babu as homicidal, the prosecution examined Dr. Nand Lal Sharma (PW-1), who conducted autopsy on the dead body of the deceased. As per post-mortem report (Ex.P/4) the deceased sustained following injuries : 1. Fire armed wound of Entrance oval in shape 3 cm x 3 cm x skin, muscle and Peritoneum and vestal deep intestines deep on left side of Abdomen (front). 3 cm lateral to umbilical region with clean cut invented margin with callus of abrasion around the wound with bleeding severe. - no blocking, no tattooing, through and - through upward in direction. 2. Fire armed wound of exit 4 cm x 4 cm x skin, muscle and vestal deep on body (liver deep) Right lumber region with everled region (Posteriorly). With bleeding severely. Dr. Nand Lal Sharma opined that all the injuries were ante-mortem in nature, caused by fire arm weapon and injury No. 1 was sufficient to cause death in ordinary course of life. 4. Mr. A.K. Gupta, learned counsel for the appellants, canvassed that the prosecution has failed to establish as to who opened fire and committed murder of Babu. It was not explained that while the deceased was climbing the hill how the bullet hit the abdomen? Statement of Dr. Nand Lal Sharma (PW-1) was read over wherein he stated that if a person climbs on the hill and fire is opened from the back side the injury on abdomen cannot be sustained. According to learned counsel the prosecution witnesses are got up witnesses and they have deposed against the appellant because of political enmity. Their testimony has been shattered in the cross-examination and no reliance can be placed on them. Our attention has been drawn to the various infirmities in the prosecution case. 5. According to learned counsel the prosecution witnesses are got up witnesses and they have deposed against the appellant because of political enmity. Their testimony has been shattered in the cross-examination and no reliance can be placed on them. Our attention has been drawn to the various infirmities in the prosecution case. 5. Per contra, Mr. B.M. Sharma, learned Public Prosecutor supported the impugned judgment and contended that the deceased and other persons belonging to Scheduled Tribe were suppressed in the instant case by intimidation. Babu Lal became victim of political differences. It is further urged that there is ample evidence on record to prove the guilt of appellants and the learned trial Judge has rightly convicted and sentenced them. 6. When we turn on to the evidence on record for proper appreciation of the submissions advanced before us, we find that eye-witnesses of the alleged occurrence are Nathuwa (PW-3), Girraj (PW-4), Kadu Ram (PW-5), Jinsi (PW-6), Ram Gilas (PW-9), Mangi Lal (PW-11), Munim (PW-18), Tulsi Ram (PW-19), Ram Singh (PW-21) and Raju Lal (PW-26). All of them categorically deposed that on the election day the appellants prevented them from casting their votes. The appellant-Kalicharan was armed with 12 bore gun whereas Girraj had Pachfera (five rounds) gun. Kalicharan was the first person who opened fire but nobody was injured. While Babu was running and climbing on the hill Girraj opened fire, the bullet of which hit Babu on the abdomen. Babu died instantly. Thereafter Ram Gilesh was given beating by the appellants with stick, hockey and pharsa. Jinshi also sustained injuires. It also appears from the evidence of Jinshi (PW-6) that while he and Babu were climbing on the hill both of them suddenly turned back and at that point of time the bullet shot by Girraj hit the abdomen of Babu and he died at the spot. Ram Gilash and Jinshi sustained injuries in the course of the incident. As per injury report (Ex.P/15), Ram Gilash sustained following injuires : 1. Bruise bluish 10 cm x 8 cm on Rt. arm 2. Incised wound 4.5 cm x 1 cm x 3 on Rt. leg mid ⅔ part. 3. Swelling bluish 5 cm x 5 cm on Rt. leg 3 cm below injury No. 2 4. Bruise bluish 10 cm x 8 cm on Lt. side of chest 5. Swelling bluish 4 x 4 cm on Lt. ankle 6. arm 2. Incised wound 4.5 cm x 1 cm x 3 on Rt. leg mid ⅔ part. 3. Swelling bluish 5 cm x 5 cm on Rt. leg 3 cm below injury No. 2 4. Bruise bluish 10 cm x 8 cm on Lt. side of chest 5. Swelling bluish 4 x 4 cm on Lt. ankle 6. C/o pain in back. 7. Jinshi as per injury report (Ex.P/2) sustained Oval fire armed wound of Enlice 2 cm x 2 cm x skin, muscle and upto bone deep on right leg upper ⅓ part with bleeding with colour of forision, no blackening, no tattooing no starding. 8. It also appears from record that the cloths of deceased-Babu contained in sealed packet (D) were sent for examination to Forensic Science Laboratory Rajasthan Jaipur. The result of examination was communicated by the FSL vide report Ex.P/14, which reads as under : "(1) Holes present on the front and back portion of the exhibits (S/1 to S/3) from packet `D' appear to have been caused by lead shot as lead metal was detected on the periphery of these holes. The possibility of these holes being caused by lead projectile fired from shot gun or muzzle loading gun is not ruled out. (2) The position of the entrance and exit holes present on the exhibits (s/1 to s/3) from packet `D' and also the entrance and exit injuries mentioned in the post-mortem report of the victim. Shri Baboo Meena, indicate that the track of the projectile from entrance to exit hole is in the upward direction, such type of injuries could also be possible when the shot is fired from the place area (near school building) on a person standing on the top of the hill (as indicated in the map of the spot). However, the same shot could not hit the second person on the leg portion (as indicated in the injury report of Shri Jinsy Meena) if both were standing as the same level. (3) Due to lack of evidence it has not been possible to indicate the range of firing as the product of cobustion due to powder charge was found absent on and around the holes." 9. Having considered the submissions advanced and analysed the evidence in detail we find that the prosecution has not succeeded in proving the existence of common object amongst the accused persons. Having considered the submissions advanced and analysed the evidence in detail we find that the prosecution has not succeeded in proving the existence of common object amongst the accused persons. Even facts regarding forming of unlawful assembly have not been established. The prosecution evidence probabilities that the occurrence was sudden. The intention of appellants-Kalicharan and Girraj in using fire arms appears to create some disturbance at the polling station in order to divert attention of the crowd collects, so that the booth capturing would be facilitated. However, the appellants-Kalicharan and Girraj could be attributed the knowledge that the natural and proper consequences of their acts was likely to cause death of some of the persons. In so far as allegations against Mukesh, Chand Mal, Naval Kishore, Munna, Rajesh and Dinesh @ Kullahad are concerned when we look at the evidence we find that they were not the members of unlawful assembly. Ram Gilash (PW-9), who had sustained injuries, deposed that after casting his vote when he was sitting inside the school, quarrel started. Finding him in the school Rajesh inflicted axe-blow on his foot, Munna gave blow with hockey on his ribs, whereas Mukesh, Naval and Chand Mal gave lathi-blows on his back, hip and knee. Kullahad inflicted axe-blow from the blunt side on his waist. In his cross-examination Rain Gilas stated that his statement was recorded after four days of the incident, till then he did not narrate the incident to anybody. Ram Gilash was confronted with his police statement Ex.D/4 wherein he had only named Ramesh, Munna, Mukesh, Chand Mal and Kullahad. In his police statement he deposed that he did not know as to whether somebody opened fire or not. As already noticed Ram Gilash as per injury report (Ex.P/15) had sustained one incised wound on Rt. leg, two bruises on Rt. arm and left side of chest and swelling over right leg and left ankle. Except the injury attributed to Rajesh no other injury received by him has been corroborated by the injury report. Thus ocular version of Ram Gilash that he had received injuries from blunt weapon on his back, waist, hip and knee does not inspire confidence. arm and left side of chest and swelling over right leg and left ankle. Except the injury attributed to Rajesh no other injury received by him has been corroborated by the injury report. Thus ocular version of Ram Gilash that he had received injuries from blunt weapon on his back, waist, hip and knee does not inspire confidence. Looking to the facts that the statement of Ram Gilash was recorded after four days and he kept mum during all these days and his ocular version has not been corroborated by medical report, possibility of over implication of the accused can not be ruled out. The prosecution has also not succeeded in establishing that the offence was committed because the victims belonged to Scheduled Tribe and charge u/s. 3 SC/ST (Prevention of Atrocities) Act, is not established against the appellants beyond reasonable doubt. 10. So far as the evidence collected against appellants-Kalicharan and Girraj we find that they both had used fire arms and shared common intention to create disturbance at the polling station so that the booth capturing would be facilitated. In our opinion appellant-Girraj is guilty of committing culpable homicide not amounting to murder punishable u/s. 304 Part II IPC, whereas appellant-Kalicharan is guilty of offence u/s. 304 Part II r/w 34 IPC. Their Lordships of the Supreme Court in a similar situation observed in Ruli Ram & Ann v. State of Harayna, (2002) 7 SCC 691 (para 22) as under : "22. Coming back to the factual position as noted by the Courts below the conclusions rendered by the trial Judge appear to be sound. He had noted several factors to conclude that the intention was not to commit murder, but to create some disturbance at the polling station in order to divert attention of the crowed collected, so that the booth-capturing would be facilitated. No injuries were caused to the deceased before they were thrown in the pond, and there was no attempt to even strangulate them. However, the accused-appellants could be attributed the knowledge that the natural and proper consequences of their acts was likely to cause death. The High Court did not indicate any basis to hold that the case was covered by Section 302 IPC. There was only a casual observation that the murders were committed intentionally because relatives of the deceased did not agree to vote in favour of the accused-appellant's candidate. The High Court did not indicate any basis to hold that the case was covered by Section 302 IPC. There was only a casual observation that the murders were committed intentionally because relatives of the deceased did not agree to vote in favour of the accused-appellant's candidate. There is absolutely no discussion to fortify the conclusion. The inevitable result is that the proper provision to be applied in Section 304 Part II IPC." In regard to proportion between crime and punishment their Lordships indicated in para 25 as under : 25. Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilised societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now a single grave infraction is thought to call for uniformly drastic measures. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact quite apart from those considerations that make punishment unjustifiable when it is out of pro- portion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences. Therefore, the sentence of 10 years' rigorous imprisonment awarded by the trial Court is quite appropriate. The accused-appellants shall suffer rigorous imprisonment for 10 years in respect of their conviction u/s. 304 Part II IPC." 11. We are of the view that in a democracy the choice to vote for a candidate cannot be suppressed by intimidation. The trend of capturing power at any cost has to be curbed and in a case linked with political matters, stringent punishment is desirable without exception. We find no merit in the submission of learned counsel for the appellants. Although the investigation was conducted in the matter at different level which appears to be unfair but on examining the testimony of the witnesses from the point of view of trustworthiness we find element of truth in it. As per the statement of Jinshi (PW-6) Babu received the injury on abdomen while climbing at the hill he turned back. This testimony of Jinshi inspires confidence and it cannot be discarded. 12. As per the statement of Jinshi (PW-6) Babu received the injury on abdomen while climbing at the hill he turned back. This testimony of Jinshi inspires confidence and it cannot be discarded. 12. As a result of above discussions, we dispose of the appeal in the following terms : (1) The appeal of appellants-Mukesh, Chand Mal, Naval Kishore, Munna and Dinesh @ Kullahad stands allowed and they stand acquitted of the charges u/ss. 302/149, 148, 323 & 324/149 IPC and Section 3 SC/ST (Prevention of Atrocities) Act. They are in jail. They shall be re' eased forthwith if not required in any other case. (2) The appeal of appellant-Rajesh is partly allowed. He stands acquitted of the charges u/ss. 302/149, 148 & 323 IPC and Section 3 SC/ST (Prevention of Atrocities) Act. We however find him guilty u/s. 324 IPC and sentence him to suffer One Year Rigorous Imprisonment and fine of Rs. 200/-, in default to further suffer Two Months imprisonment. The appellant-Rajesh has already suffered imprisonment of more than two years, we therefore, direct that the appellant-Rajesh be released forthwith if not required in any other case. (3) The appeal of appellants-Kalicharan and Girraj stands partly allowed. Their conviction u/ss. 302/149, 148, 323 & 324/149 IPC and Section 3 SC/ST (Prevention of Atrocities) Act is set aside. Instead we convict appellants-Girraj u/s. 304 Part II IPC and Kalicharan u/s. 304 Part II r/w 34 IPC and looking to the seriousness of crime sentence each of them to suffer Rigorous Imprisonment for Ten years. (4) The impugned judgment of the learned trial Judge modified as indicated herein above. Appeal disposed. *******