JUDGMENT Hon'ble J.C.S. Rawat, J. - This is a criminal appeal against the judgment and order dated 7.1.1981 passed by the IInd Additional Sessions Judge, Nainital in S.T. No. 95 of 1980 State Versus Pratap Ram and others by which the appellants Pratap Ram and Pratap Singh were convicted and sentenced, to four years RI. u/s. 307 IPC, four year R.I. us 307/149 IPC, four years RI.u/s 436/149 IPC and 1/1/2 years u/s 148 IPC, appellant Birbal Ram Jeet Singh and Rudra Singh were convicted and sentenced to four years R.I. u/s. 307/149 IPC, four years R.I. u/s. 436/149 IPC and one year RI. u/s. 148 IPC The sentences of all the appellants were ordered to run concurrently. 2. The facts, in brief, are that there was a dispute regarding land between the appellants and the complainant Gurbachan Singh (P.W1). The appellants several times encircled the complainant. On 3/4.11.1979 at 12.30 O'clock the dog of the complainant started harking loudly. The complainant Gurbachan Singh (P.W.1) and his wife who were in their Jhala woke up the complainant went out of his house. He saw nine persons out of which five were the appellants and four were unknown persons. Then Birbal Ram told his son Pratap Ram to shoot Gurbachan Singh (P.W.1). Pratap Ram fired at Gurbachan Singh by single barrel gun, which hit Gurbachan Singh on his back. On the shouting of Gurbachan Singh his brother-in-law Dayal Singh (P.W3) came. Pratap Singh appellant fired at Dayal Singh (P.W.3) by single barrel gun, which hit on the foot of Dayal Singh. On their shouting Budh Singh (P.W.4), and Barral Singh came there and had seen the occurrence. Thereafter they were shouting and the appellants set fire their Jhala. Then Budh Singh and Anand Singh came there and witnessed the occurrence. A loss of Rs. 2000/- was caused to the complainant by setting fire to his Jhala. 3. Gurbachan Singh (P.W1) lodged report (Ex. Ka1) written by Sri Liladhar Bhatt a deed writer of Sitarganj at P.S. Sitarganj on 4.11.1979 at 6:45. On the has is of aforesaid written report FIR (Ex. ka6) was prepared by Head Moharrir Revadhar Sharma (P.W5) and G.D. entry (Ex. Ka7) was made. The investigation was entrusted to S.I. Vikram Singh (P.W.6). The Investigating officer visited the place of occurrence and prepared site plan (Ex. Ka.8). The Investigating Officer prepared recovery memo (Ex. On the has is of aforesaid written report FIR (Ex. ka6) was prepared by Head Moharrir Revadhar Sharma (P.W5) and G.D. entry (Ex. Ka7) was made. The investigation was entrusted to S.I. Vikram Singh (P.W.6). The Investigating officer visited the place of occurrence and prepared site plan (Ex. Ka.8). The Investigating Officer prepared recovery memo (Ex. Ka4) for samples of ash and also prepared recovery memo (Ex. Ka5) for taking into possession the empty cartridges. 4. Dayal Singh (PW3) was examined by Dr. L.D. Khatani, Medical Officer, P.H.C. Khatima on 4.11.1979 at 3.20 p.m. and prepared injury report Ex. Ka-2. The following injuries were found on his person :- 1. Multiple lacerated wounds circular in shape about size of 0.3 cm x 0.3 cm on the front of lower part of right thigh and upper half of the right leg. They are about eight in number. Colour is dark brown Clotted blood present. 2. Lacerated wound of the size about 0.3 cm circular in shape on the middle of front of right leg. Colour is dark brown. Shots pallets palpable. 3. Lacerated wound size of about 0.3 cm x 0.3 cm on the inner side of left thigh about 9 cm above the knee joint. Colour is brownish black. Pellet is palpable. 4. Lacerated wound size about 0.3 cm x 0.3 cm circular in shape. Blackish in colour front of upper part of left leg about 3 cm. below the joint. 5. Lacerated wound circular in shape 2 in the number size of about 0.3 cm x 0.3 cm blackish in colour on lower part of the inner side of the left leg 10 cm above the ankle joint. They are about 1 cm apart from each other. 5. All the injuries were opined to have been caused by some firearm weapon and all the injuries were kept under observation. In the X-ray P.W.8 Dr. Amrcndra Singh found 4 pellets in the right thigh, 4 pellets in the leg, one pellet in the left thigh and one pellet in the left leg in X - ray. 6. Dr. L.D. Khatri (P.W.2). found the following injuries on the person of Gurbachan Singh- 1. Multiple lacerated wound size of about 0.3 cm x 0.3 cm each about circular in shape and about 13 in number on the back of the . whole of left thigh and left leg scattered in fashion. 2. 6. Dr. L.D. Khatri (P.W.2). found the following injuries on the person of Gurbachan Singh- 1. Multiple lacerated wound size of about 0.3 cm x 0.3 cm each about circular in shape and about 13 in number on the back of the . whole of left thigh and left leg scattered in fashion. 2. Multiple lacerated wounds size of about 0.3 cm x 0.3 cm each about circular in shape and 12 in number on the back of the right thigh and leg scattered in fashion blackish in colour. 3. Multiple circular lacerated wounds size about 0.3 cm x. 0.3 cm about 8 in number scattered on the back of abdomen left side of the abdomen and chest. 7. All the injuries were opined to have been caused by firearm P.W.8 Dr. Amrendra Singh on X-ray found that 6 chharras in the left thigh, 2 chharras in the left leg and 8 chharras in the right thigh and 6 pellets in the abdomen were seen in the X'ray. No pellet was found in the chest. P.W.2 proved the injuries' reports Ex. Ka-2 and A Ka 3 whereas P.W8 proved the X'ray plates Ex. II to XXI and reports Ex. Ka-10 and Ka. 11. 8. After completing the investigation, the investigating officer submitted charge sheet Ex. Ka 9. The appellants Birbal Ram, Jeet Singh and Rudra Singh were charged u/s. 148, 307/149 and 436/149 of the Indian Penal Code and appellant Pratap Ram was charged U/s. 148, 307, 307/149 and 436/149 of the Indian Penal Code. The appellant Pratap Singh was charged U/s. 148, 307/149, 307 and 436/149 I.P.C. The appellants denied the charge and claimed to be tried. 9. The prosecution in support of its case examined P.W 1 Gurbachan Singh complainant, P.W3 Dayal Singh and P.W4 Budh Singh eyewitnesses. P.W2 Dr. N.D. Khatri proved Ex. ka 2. injury report of Dayal Singh and Ex. Ka 3 injury report of Gurbachan Singh, P.W5 head Moharir Rewadhar Sharma proved F.I.R. Ex. ka 6, G.d. entry Ex. ka 7 S.I. Vikram Singh. P.W. 6 proved site plan Ex. Ka 8, Recovery Memos Ex. ka 4 & ka 5 and also chargesheet Ex. Ka. 9. P.W. 7 Satish Arora proved photographs of the place of occurrence. Dr. Amrendra Singh proved X'ray report Ex. Ka 10 and Ex. Ka 11. ka 6, G.d. entry Ex. ka 7 S.I. Vikram Singh. P.W. 6 proved site plan Ex. Ka 8, Recovery Memos Ex. ka 4 & ka 5 and also chargesheet Ex. Ka. 9. P.W. 7 Satish Arora proved photographs of the place of occurrence. Dr. Amrendra Singh proved X'ray report Ex. Ka 10 and Ex. Ka 11. The appellants in their statements under section 313 Cr.P.C. denied the prosecution case and submitted that they were falsely implicated due to land dispute. The appellants filed certain documents Ex. Kha1 to kha 13. 10. On consideration of the entire evidence on record the learned trial' court convicted and sentenced the appellants as above. 11. It is not disputed that the injured Dayal Singh (PW3) and Gur Bachan Singh (PW1) sustained injuries on their person. The defence has suggested the witnesses that the injuries were or might have been caused by some one else and might have been caused not in the village Nalai but in the village of Shakti farm which is few kilometers away from village Nalai. This suggestion also shows that the defence also has not disputed the injuries on the person of the injured. The prosecution has further adduced the evidence of PW2 Dr. L.D. Khatri who has opined that he found the fire arm injuries on the person of Dayal Singh (PW3) and Gur Bachan Singh (PW1). 12. Now, I have to consider whether the appellant was responsible for the injuries sustained by the injured Dayal Singh and Gurbachan Singh. Gurbachan Singh (PW1), Dayal Singh (PW3) and Budh Singh (PW4) are eye witnesses of the occurrence who have stated that they saw nine persons out of which five were the appellants and four were unknown persons. Then Birbal Ram told his son Pratap Ram to shoot Gurbachan Singh. Pratap Ram fired at Gurbachan Singh by single barrel gun, which hit Gurbachan Singh on his back. Pratap Singh appellant fired at Dayal Singh by single barrel gun, which hit on Dayal Singh. The appellant also set fire their Jhala. I have gone through the evidence of all the eye-witnesses. The evidence of eye-witnesses is reliable and trustworthy on the point that Pratap Ram and Pratap Singh fired upon the injured on the extortion of Birbal Ram. There is nothing in the cross-examination to impeach their testimony with regard to the above fact. The appellant also set fire their Jhala. I have gone through the evidence of all the eye-witnesses. The evidence of eye-witnesses is reliable and trustworthy on the point that Pratap Ram and Pratap Singh fired upon the injured on the extortion of Birbal Ram. There is nothing in the cross-examination to impeach their testimony with regard to the above fact. Thus, the evidence with regard to author of the injuries is completely believable and trust worthy. 13. The evidence of eyewitnesses further stands corroborated by prompt FIR. The incident was reported by PWI Gurbachan Singh on 4.11.1979 at about 6.45 a.m. The distance of the village is about 9 miles from the police station. In these circumstances the FIR was prompt. 14. The learned defence counsel has submitted that the injured Dayal Singh sustained injuries on the front of lower right thigh and upper half of right leg, middle of front of right leg, upper part of left leg and on the ankle joint of the left leg. Gurbachan Singh sustained injuries on the back of the left thigh, back of right thigh, back of abdomen and left side of abdomen chest. The learned counsel for the defence further submitted that it is in the FIR that Pratap Ram fired on Gurbachan Singh and he sustained injuries on his back when he was running to escape. The defence further submitted that it is alleged in the FIR that on hearing the cry of Gurbachan Singh, Dayal Singh came outside, from his house. Thereupon Birbal Ram again called Pratap Singh to shoot Dayal Singh and he sustained gun shot injury on the back of his leg while he was also running to save himself. The learned counsel for the defence submitted that there is a conflict in between the medical evidence and the prosecution story. The perusal of the evidence clearly reveal chat Dayal Singh has stated in his evidence that on the calling of Birbal Ram, Pratap Singh shot at him and he sustained gunshot injuries while he was trying to take a turn. The perusal of the oral evidence clearly reveals that there is no conflict with medical report. The injuries indicated in the medical report Ex Ka 2 and Ex Ka 3 are consistent with the medical report. It is not necessary that the FIR should contain the minor details. The perusal of the oral evidence clearly reveals that there is no conflict with medical report. The injuries indicated in the medical report Ex Ka 2 and Ex Ka 3 are consistent with the medical report. It is not necessary that the FIR should contain the minor details. The purpose of lodging of the report is to set the criminal law in motion. Thus, there is no inconsistency in between the evidence of the prosecution witnesses and the medical evidence. I have gone through the entire evidence which reveals that the injuries found on the person of injured were possible to be caused by the gun shot by the appellants. According to the doctor the injuries found on the person of Dayal Singh could be the result of one shot. Likewise the injuries on the person of Gurbachan Singh arc also the result of one shot. PW8 Dr. Amrendra Singh was produced in evidence by the prosecution to prove the x-ray-plate and x-ray report and he had stated that the injuries on the person of the victims were possible by fire arm. The defence submitted that PW1 and PW3 in their evidence have stated that the x-ray was taken on 7.11.79 at Pillibhit. The Medical evidence reveals that the x-ray was taken on 6.11.1979 of hath the injured. As such it was submitted that the evidence of the prosecution is unreliable. Further the x-ray plate and the medical evidence reveal that it was taken on 6.11.1979. It was also submitted that there are contradictions in the prosecution evidence that as to when the injured was discharged. The contention is not tenable. The witnesses are Riasikh by caste and they arc rustic and illiterate villagers. Sometimes a witness is not able to understand the question put to him by a skilful cross-examiner and at times under the stress of cross-examination, certain answers are snatched from him. When a rustic or illiterate witness faces an astute lawyer, there is bound to be imbalance and therefore, minor discrepancies have to be ignored. Thus the minor discrepancies did not affect the prosecution version at all. The medical evidence further corroborates the ocular testimony of the prosecution. 15. The above inference is lent credence to the fact that the injury was caused at the place of occurrence. The Investigating Officer PW6 proved the memo Ex. Thus the minor discrepancies did not affect the prosecution version at all. The medical evidence further corroborates the ocular testimony of the prosecution. 15. The above inference is lent credence to the fact that the injury was caused at the place of occurrence. The Investigating Officer PW6 proved the memo Ex. Ka5 regarding taking into possession of the pellets from the place of occurrence. The Investigating Officer further took into possession the Tiklies and other pellets found at the place of occurrence, which further corroborates the prosecution story. 16. It is further established by the prosecution evidence that it was a moon lit night and this fact has been deposed by all the three eye-witnesses. Moreover, the persons were known to "each other. It may also be mentioned that in the open area adjoining to the Jhala of the injured in the cloudiness starry night there would be no difficulty in identifying the assailants because of existence of some moonlight were known to each other by which the identification was possible. 17. It was further contended on behalf or the defence that the injured had no land in village Nalai and had left the village Nalai and now they are residing in Shakti farm and further contended that there was no Jhala of the injured in village Nalai as has been alleged by the injured. In support of this contention the dc1'ence has riled certain documents Ex. Kha 1 to Ex. Kha3. The FIRs were lodged by the appellant against the injured party U/s 379,147, 148,442/427 IPC respectively after the incident on 10.11.1979 and 28.3.1980. The appellants have further riled copy of Ex. Kha 4 objection of Gurbachan Singh dated 29.9.1978 filed by injured in the court or Addl. District Magistrate against cancellation of Patta. The defence further filed Ex. Kha 5 Khatauni for 1388 F of village Nalai. Ex. Kha 6 khasra of village Nalai of khata no. 61/2. Ex. Kha 7 khatauni or aforesaid village of 1383 F, to 1388 F. Ex. Kha 8 khatauni or plot no. 52. Ex. Kha 9 khasra of village Nalai for 1386 F. A perusal of FIRs Ex Kha 2 to Ex Kha 4 reveals that the appellant had been shown the residence of village Nalai where the present occurrence took place. If he was not the resident of village Naiai then his address should not have been given of village Nalai. 52. Ex. Kha 9 khasra of village Nalai for 1386 F. A perusal of FIRs Ex Kha 2 to Ex Kha 4 reveals that the appellant had been shown the residence of village Nalai where the present occurrence took place. If he was not the resident of village Naiai then his address should not have been given of village Nalai. Ex. Kha 10 is a copy of police report given in a case under section 107/116 Cr.P.C. in which it has been specifically mentioned that Gurbachan Singh has fixed his Jhala in the plot of land of Dayal Singh in village Nalai one month ago. The defence has also filed the copy of affidavit of Gurbachan Singh filed in the revenue court in which it has been indicated that he had disposed of his land to the appellants or some other persons hut these recitals in the affidavit had not been put to the witnesses during cross-examination to explain as to how these recitals exist in these documents. Without putting these recitals no reliance can be placed on these recitals and without putting these recitals to the witnesses in cross-examination these documents have no evidentiary value and they cannot be treated as an admission because the genuineness of the documents have not been proved. It is the prosecution case that the injured Gurbachan Singh has installed his Jhala in the plot or Dayal Singh who is the brother-in law of Gurbachan Singh. Dayal Singh had his land at the place of occurrence. Apart from this, the defence has put suggestion to the witnesses that the family of Gurbachan Singh was in the village Nalai in the night of occurrence. It was further suggested to Gurbachan Singh by the appellants that he raised his Jhala only four days prior to the date of incident. It was further suggested to Gurbachan Singh that in the evening of 3.8.1979 the sons of Gurbachan Singh were present in the village when the occurrence took place and they told Amjad Khan peon and Raja Ram of the agriculture department that Gurbachan Singh was not in the village. I am conscious that the suggestions are not the admissions of the accused but at the same time it is relevant for appreciation of the evidence. 18. In view of the aforesaid discussion I am of the view that on the calling of Balbir. I am conscious that the suggestions are not the admissions of the accused but at the same time it is relevant for appreciation of the evidence. 18. In view of the aforesaid discussion I am of the view that on the calling of Balbir. Pratap Singh and Pratap Ram are the authors of the injuries on the person of Gurbachan Singh and Dayal Singh. 19. Now, I have to consider whether the conviction of all or any of the appellants for the offences can be based by invoking section 149 IPC. The anatomy and ingredients of section 149 IPC have been laid bare and its functional parameters in the series of pronouncements of the Apex Court. The vicarious liability of the members of unlawful assembly arises when the offence is committed by another member or members of an unlawful assembly if the commission of such offence is common object of such. assembly or if the members of unlawful assembly knew that the offence of the nature committed was likely to be committed through common object may be something different. 20. I have gone through the findings of the learned Sessions Judge. The findings of the learned Session:; Judge, in my considered view are not sustainable having regard to the [act that the witnesses are closely related persons and there is a history of enmity between the injured and the appellants Jeet Singh and Rudra Singh. The evidence of eye witnesses, Gurbachan Singh (PW1), Dayal Singh (PW3) and Budh Singh (PW4) should have been scrutinized with a great caution and circumspection and there were every possibility of exaggeration and embellishment. Viewed in this background and by going through the evidence on record a reasonable doubt arises on the veracity of the prosecution version that each of the appellants Jeet Singh and Rudra Singh armed with Lathis and Dandas want to the scene of occurrence with a view to injure the victim. The first information report Ex. Ka 1 reveals that the appellant Rudra Singh and Jeet Singh were present at the spot alongwith the other accused. It is indicated in the FIR that they had any Lathi or Danda in their hands and they have not caused any injury to the victims. The first information report Ex. Ka 1 reveals that the appellant Rudra Singh and Jeet Singh were present at the spot alongwith the other accused. It is indicated in the FIR that they had any Lathi or Danda in their hands and they have not caused any injury to the victims. It is also stated in the evidence that both the appellants Rudra Singh and Jeet Singh had Lathis and Dandas in their hands and they did not cause any injury to the injured persons. It is also in the evidence that the witnesses in the statements U/s. 161 Cr.P.C. have not stated that the appellants Jeet Singh and Rudra Singh were having Lathis and Dandas in their hands. The said omission was put to the prosecution witnesses. Thus this is after thought theory to implead the appellants Rudra Singh and Jeet Singh. After causing the injuries to the injured the appellants ran away from the place of occurrence. Though such account was given with an apparent precision by the prosecution witnesses, their evidence does not inspire confidence and it only reflects an anxiety on their part to implicate as many accused as possible. The prosecution evidence with regard to appellants Rudra Singh and Jeet Singh is highly improbable and unnatural. Both the appellants Rudra Singh and Jeet Singh who are alleged to have reached at' the place of occurrence alongwith other persons but they did not inflict any injury on the person of the injured. If they had an intention to commit the offence definitely they should have inflicted the injuries on the person of the injured. The leisurely observation was highly improbable and would not be consistent with the admitted course of conduct. It clearly appears from the prosecution evidence that the anxiety to implead as many as persons as possible is quite apparent. No injuries other than inflicted by fire arm were found on the victims. May be, overt acts need not be there. But the fact remains that nothing was said about the conduct and utterance of any of the appellants Jeet Singh and Rudra Singh with regard to cause injuries other than Birbal, Pratap Ram and Pratap Singh. No injuries other than inflicted by fire arm were found on the victims. May be, overt acts need not be there. But the fact remains that nothing was said about the conduct and utterance of any of the appellants Jeet Singh and Rudra Singh with regard to cause injuries other than Birbal, Pratap Ram and Pratap Singh. On a cumulating consideration of all these factors a serious doubt arises as to the correctness of the prosecution case that each of the appellant (excluding, Birbal, Pratap Singh and Pratap Ram) in prosecution of common object to injure the victims. On a careful examination of the evidence of PW1, PW3 and PW4 it is revealed that the witnesses were prone to exaggerate or distort the fact in view of enmity and close relationship. 21. In the light of the above discussion it is not safe to convict the appellants Jeet Singh and Rudra Singh by taking recourse of section 149 IPC. However, the presence and active participation of Birbal, Pratap Singh and Pratap Ram cannot be doubted. It is further established from the prosecution evidence that Birbal can be said to have shared the common intention with the main appellant Pratap Ram and Pratap Singh who opened fire on the injured persons. Birbal played an active role in extorting to open fire on the injured persons. He can be said to have shared common intention with the main appellants Pratap Ram and Pratap Singh. Therefore, Pratap Ram, Pratap Singh and Birbal are liable to be convicted under section 307 IPC and 307 IPC read with section 34 IPC. The absence of a charge under section 34 IPC cannot be said to have caused any prejudice to the appellants as to giving rise to a constructive criminal liability were well known to the~ from the beginning and the case which they have to meet out under section 34 IPC is substantively the same as the prosecution put forward. Hon'ble Supreme Court in the case of Bhoor Singh and another v. State of Punjab, AIR 1974 Supreme Court 1256 has observed as under :- "The first is that the appellants were Charged in respect of offences under Section 148 and 302 read with Section 149, Penal Code, but they have been convicted under section 302 read with section 34, Penal Code though there was no specific charge under Section 34, Penal Code against them. This irregularity amounts to an illegality and vitiates the trial. Reliance has been placed on the decision of this Court in Nanak Chand E Punjab State, (1955) 1 SCR 1201 = (AIR 1955 SC 274 = 1955Cri L.J 721). All the circumstances showing concrete and participation in the joint criminal action by all the three appellants were fully put to them in their examination under section 342 Cr.P.C. (now 313 Cr.P.C.). The appellants were fully aware of the matter with which they were charged. No question of prejudice arises." 22. Since the charge under section 149 IPC on the evidence on record and facts could not be said to have been proved the charge under section 147 IPC or under section 148 IPC against the appellants cannot be sustained and the conviction under section 148 IPC is liable to be set aside against the appellants. 23. The appellants have also been convicted under section 436 IPC read with section 149 IPC. The presence of appellants Jeet Singh and Rudra Singh at the place of occurrence has been found doubtful as stated above. The evidence of Gurbachan Singh (PW1), Dayal Singh (PW3) and Budh Singh (PW4) is cogent and credible against the appellants Birbal, Pratap Ram and Pratap Singh. The above prosecution witnesses have stated in their evidence that the appellants at the time of leaving the place of occurrence, set fire to the Jhala of the injured Gurbachan Singh. The evidence of the prosecution with regard to the above three appellants is reliable and trustworthy. It further stands corroborated by the evidence of the Investigating Office who collected the ashes of the said Jhala. Thus, the appellants Pratap Ram, Pratap Singh and Birbal arc also liable to he convicted under section 436 IPC. 24. In view of the above discussion. I am of the view that the appeal succeeds partly. The appellants Pratap Singh, Pratap Ram and Birbal Ram arc liable to be convicted under section 307 and 307/34 IPC and 436/34 IPC. The appellants Rudra Singh and Jeet Singh deserve acquittal of the charges levelled against them under sections 148,307/149 IPC, and 436/149 IPC. All the appellants deserve acquittal under section 148 IPC. The appeal must be abated against the appellants Pratap Singh and Birbal Ram who died during the pendency of the appeal. 25. The appeal is partly allowed. The conviction of the appellants Pratap Ram. All the appellants deserve acquittal under section 148 IPC. The appeal must be abated against the appellants Pratap Singh and Birbal Ram who died during the pendency of the appeal. 25. The appeal is partly allowed. The conviction of the appellants Pratap Ram. Pratap Singh and Birbal Ram under section 307/34 IPC and 436/34 IPC is maintained. All the appellants arc acquitted of the charges levelled against them under section 148 IPC. The appellants Rudra Singh and Jeet Singh arc acquitted of the charges levelled against them under sections 148, 307/149 IPC. and 436/149 IPC. 126. The appeal is abated against the appellants Pratap Singh and Birbal Ram who died during the pendency of the appeal. 27. The appellant Pratap Ram is on hail. The trial court shall issue the process for his immediate arrest and he shall be sent to Jail to serve out the sentences awarded by the trial court U/s. 307/34 and 436/34. All the sentences under each count shall run concurrently. 28. Let a copy of this judgment' alongwith the record of the case be immediately sent to the court concerned for needful compliance under intimation to this court within two months positively.