JUDGMENT 1. - Accused-appellants- Boota Singh, Baldev Singh, Asgar Ali and Abdul Gaffar alias Fari (died during trial) stood tried on the charge under section 302 Indian Penal Code, who in furtherance of the common intention to kill Mahaveer, assembled at the house of accused-Boota Singh armed with fire arms and killed him by causing gun shot injuries. Learned Additional Sessions Judge No. 2, Sriganganagar Camp Suratgarh, convicted and sentenced the appellants in the manner noticed below:- "Accused-Boota Singh and Baldev Singh : (i) Under Sec. 302/34 Indian Penal Code : Life imprisonment and a fine of Rs. 500/- and in default to undergo one month's R.I; (ii) under section 307/34 Indian Penal Code : 7 years' R.I. and a fine of Rs. 500/- and in default to undergo one month's R.I.; (iii) under section 27 Arms Act : 3 years' R.I. Accused Asgar Ali: (i) under section 302/34 Indian Penal Code : Life imprisonment and a fine of Rs. 500/- and in default to undergo one month's R.I; (ii) under section 307 Indian Penal Code : 7 years' R.I. and a fine of Rs. 500/- and in default to undergo one month's R.I.; (iii) under section 27 Arms Act : 3 years' R.I. (iv) under section 3/25 Arms Act : 1 year's R.I. and a fine of Rs. 200/- and in default to undergo 15 days' R.I." 2. During trial, the factual scenario emerged as follows:- In village 3-SHPD in front of the house of appellants-Boota Singh and Baldev Singh, one Mohanlal used to run private school on a rented plot of PW-2 Dr. Tek Chand. The appellants a had an eye on the said plot. This led to the unfortunate incident in which Mahaveer died on 25.12.1997. The incident which took place on 25.12.1997 is narrated as follows:- In the morning of 25.12.1997, appellants-Boota Singh and Baldev Singh alongwith Asgar Ali and Abdul Gaffar alias Fari forcibly took possession on the plot of PW-2 Dr. Tek Chand. The school children and teachers were turned out of the school. Over the issue of plot, a village Panchayat was convened in the afternoon, which was at- tended among others by PW-1 Mani Ram, his deceased brother Mahaveer, another brother PW-4 Krishna Lal son of PW-2 Raja Ram as well as appellants-Boota Singh and Baldev Singh. Tek Chand. The school children and teachers were turned out of the school. Over the issue of plot, a village Panchayat was convened in the afternoon, which was at- tended among others by PW-1 Mani Ram, his deceased brother Mahaveer, another brother PW-4 Krishna Lal son of PW-2 Raja Ram as well as appellants-Boota Singh and Baldev Singh. Hot discussions ensured in the meeting on the question of forcible dispossession by appellants-Boota Singh and Baldev Singh. The appellants did not like the role played by PW-1 Mani Ram and his family members in the panchayat meeting and they left the meeting out of anguish. The meeting ended at about 4.00 or 4.30 p.m. After the meeting was over, Boota Singh and Baldev Singh returned to their home where accused-Asgar Ali and Abdul Gaffar alias Fari were already sitting in the 'Chobara'. Accused-Boota Singh and Baldev Singh climbed on the terrace armed with pistols. Accused-Asgar Ali and Fari were armed with 12 bore single barrel guns. When Mani Ram, deceased- Mahaveer, Krishna Lal and Raja Ram came out of the meeting, all the four accused persons challenged them. It was exclaimed that persons who had attended the meeting should not be allowed to go alive and that they should be killed. PW-1 Mani Ram was being followed by PW-2 Raja Ram and deceased-Mahaveer in the street. While they were passing through the street, all the accused persons opened fire. PW-2 Raja Ram sustained pellet injuries, Mahaveer sustained gun shot injuries and PW-1 Mani Ram also sustained pellet injuries. Mahaveer having sustained fire arm injuries,rushed to the house of Beekar Singh, where he succumbed to the injuries. PW-1, Mani Ram alongwith his son PW-2 Raja Ram went to 1-FDM on a tractor and arranged a jeep. Mahaveer was taken to the hospital at Suratgarh, where he was declared dead. PW-1 Mani Ram and PW-2 Raja Ram were admitted in the hospital for treatment. 3. The information of the incident was given by the hospital authorities to the police on telephone. At about 7.00 p.m., PW-8 Virendra Jakhar, SHO, P.S., Suratgarh arrived at the hospital and recorded the statement of PW-1 Mani Ram. On the basis of parcha bayan Ex.P/1, regular FIR Ex.P/24 was registered. The police prepared the sit plan Ex.P/6 and the inquest report Ex.P/4. The wads and empty cartridges were seized from the spot vide Ex.P/7. At about 7.00 p.m., PW-8 Virendra Jakhar, SHO, P.S., Suratgarh arrived at the hospital and recorded the statement of PW-1 Mani Ram. On the basis of parcha bayan Ex.P/1, regular FIR Ex.P/24 was registered. The police prepared the sit plan Ex.P/6 and the inquest report Ex.P/4. The wads and empty cartridges were seized from the spot vide Ex.P/7. The blood stained clothes of deceased-Mahaveer were seized and sealed vide Ex.P/8. The dead body of Mahaveer was sent for autopsy. PW-7 Dr. Ratanlal Agarwal conducted the autopsy of deceased-Mahaveer and noticed the following injuries vide Ex.P/23: "1. Lacerated wound with size 0.3 x 0.3 cm on left chest 6 cm below breast; 2. Lacerated wound 0.3 x 0.3 cm on left axillary line (Ant) parallel to left breast; 3. Lacerated wound 0.4 x 0.4 cm on let neck 3 cm above collar bone. Note : 1. All the lacerated wounds were having inverted margins with clotted blood also present (Firearm injuries) 2. Injury No. 1 to 3 are ante-mortem in nature. 3. There is subcutaneous collection of blood underneath wound No. 1 to 3 lacerating left carotid artery and left lung also on the corresponding sites." In the opinion of the doctor, the cause of death was shock due to excessive haemorrhage caused by firearm injuries to left lung and carotid vessel left side. The doctor also examined the injuries of PW-1 Mani Ram and prepared the injury report Ex.P/14 as follows : "Lacerated wound (4 in number) with clotted blood measuring 0.3 x 0.3 cm each in size scattered in an area extending from right side of epigastrium to left side of epigastrium." In the opinion of the doctor, the injuries were caused by firearm which were simple in nature. He also examined the injuries of PW- 2 Raja Ram and prepared the injury report vide Ex.P/18 as follows : "1. Lacerated wound 0.3 x 0.3 cm each on left mid chest; 2. Lacerated wound 0.3 x 0.3 cm on upper part of the abdomen; 3. Lacerated wound 0.3 x 0.3 cm on inner aspect of left elbow; 4. Lacerated wound 0.3 x 0.3cm on Rt. Mid forearm inner aspect." The doctor opined that the injuries were caused by firearm. They were simple in nature. 4. Appellants-Boota Singh, Baldev Singh and Asgar All were arrested on 2.1.1998 vide Ex.P/25, 26 and 27 respectively. Lacerated wound 0.3 x 0.3 cm on inner aspect of left elbow; 4. Lacerated wound 0.3 x 0.3cm on Rt. Mid forearm inner aspect." The doctor opined that the injuries were caused by firearm. They were simple in nature. 4. Appellants-Boota Singh, Baldev Singh and Asgar All were arrested on 2.1.1998 vide Ex.P/25, 26 and 27 respectively. In pursuance of the information given by accused-Asgar Ali vide Ex.P/28, a 12 bore single barrel gun was recovered vide Ex./29. The gun and the incriminating articles were sent to the Forensic Science Laboratory. The FSL Reports have been placed on record as Ex.P/30 and 31 respectively. After usual investigation, police laid charge-sheet against the appellants and fourth accused-Abdul Gaffar alias Fari for the offence under sections 302, 302/34, 307, 307/34 Indian Penal Code and 3/25 of the Arms Act. Fourth accused- Abdul Gaffar alias Fari died during trial. 5. All the appellants denied the charges levelled against them and claimed trial. The prosecution in order to prove its case examined four eye-witnesses out of total eight witnesses and produced certain documents. Learned trial Court relying on the testimony of eye-witnesses viz; PW-1 Mani Ram, PW-2 Raja Ram, PW-3 Dr. Tek Chand and PW-4 Krishna Lal corroborated by the medical and other circumstantial evidence found the prosecution case proved beyond reason- able doubt. The learned Judge convicted and sentenced the appellants in the manner already noticed. 6. Mr. Mahesh Boda learned counsel for the appellants assailing the judgment of the learned trial Court has made a serious endeavour to dig out holes on the edify of the prosecution case. Learned counsel has pointed out that doubtful and suspected nature of the evidence relied upon by the prosecution suffers from serious infirmities and lack of legal credibilities to merit acceptance. It is vehemently argued that the medical evidence falsifies the prosecution case. He has invited out attention to the statement of PW-8 Virendra Jakhar investigating officer and the site plan Ex.P/6 and has pointed out that the gun shot is alleged to have been fired by the appellants from the height of 16 ft. The distance between the point the gun is alleged to have been fired and the place where it hit deceased Mahaveer is 40 ft. He has referred to the statement of PW-7 Dr. Ratanlal Agrawal, wherein it is admitted that the injuries sustained by deceased-Mahaveer were circular. The distance between the point the gun is alleged to have been fired and the place where it hit deceased Mahaveer is 40 ft. He has referred to the statement of PW-7 Dr. Ratanlal Agrawal, wherein it is admitted that the injuries sustained by deceased-Mahaveer were circular. He has further stated that Mani Ram and Raja Ram also sustained circular injuries. He further admitted that such injuries can be sustained only in a case when the gun shot is fired from little distance and height. It is further submitted that the empty cartridges were found on the ground which shows that the gun shot must have been fired from the ground instead of terrace of the house of appellants. It is further submitted that there was no motive for the appellants to kill Mahaveer. Learned counsel has pointed out that not a drop of blood has been found in the street where the deceased and injured persons alleged to have sustained fire arm injuries. On the other hand, learned Public Prosecutor has supported the judgment of the learned trial Court. 7. We have carefully scrutinised and evaluated the prosecution evidence and considered the rival contentions. PW-1 Mani Ram deposed that there is a plot of PW-3 Dr. Tek Chand in village Chak 3 SHPD. The said plot was given on rent to Mohanlal for running a school. On the date of incident, appellants forcibly took possession of the plot turning out the school children and teachers. On the same day, a panchayat was convened. The meeting ended at about 4.00 p.m. While PW-2 Raja Ram and deceased-Mahaveer were returning after having attended the meeting at 4.00 p.m., the accused persons exhorted to kill .he persons who attended the meeting. While Raja Ram and Mahaveer were ii. the street, appellants opened fire. The gun shot injuries were sustained by FW-1 Mani Ram, PW-2 Raja Ram and deceased-Mahaveer. He took shelter in the house of Prithvi Raj. Raja Ram and Mahaveer rushed to the house of Beekar Singh. Mahaveer succumbed to the injuries in the house of Beekar Singh. He alongwith Raja Ram went to village 1-FDM in a tractor and arranged a jeep. Mahaveer was immediately taken to the hospital at Suratgarh, where he was declared dead. He took shelter in the house of Prithvi Raj. Raja Ram and Mahaveer rushed to the house of Beekar Singh. Mahaveer succumbed to the injuries in the house of Beekar Singh. He alongwith Raja Ram went to village 1-FDM in a tractor and arranged a jeep. Mahaveer was immediately taken to the hospital at Suratgarh, where he was declared dead. The police arrived at the hospital and recorded his statement at about 7.00 p.m. He has further stated that his clothes were seized by the police on 29.12.1997. There is a lengthy cross-examination but nothing substantial could be brought in to shake his version. PW-2 Raja Ram is another injured eye-witness whose statement is almost in the line of that of PW-1 Mani Ram. Nothing has been elicited in the cross-examination to discredit the testimony of this witness. 8. PW-3 Tek Chand has stated that one Mohanlal used to run a private school on his plot. On 25.12.1997, accused-Baldev Singh and Boota Singh alongwith Agar Ali and Fari arrived at the school. They threw away the school articles and turned out the children and teachers. Thereafter, a panchayat was convened, which was attended by Mani Ram, Mahaveer, Raja Ram, Krishna etc. Appellants-Baldev Singh and Boota Singh lost their temper and left the meeting. Accused-Fari and Asgar Ali were already standing in the 'Chobara' of the house of Baldev Singh and Boota Singh. They assembled there. After the meeting was called off, all the participants were moving out. Accused persons exhorted that the persons who attended the meeting, should not be spared and allowed to go alive. All the four accused persons who were armed with pistol and guns opened fire. Mahaveer, Raja Ram and Mani Ram sustained firearm injuries. He further stated that Mahaveer took shelter in the house of Beekar Singh, where he succumbed to the injuries. In the cross-examination, he denied the suggestion that the plot was sold to appellants-Baldev Singh and Boota Singh by Rajendra Singh on 11.11.1997. He also stated that in the panchayat, when the accused-Baldev Singh and Boota Singh were questioned as to why they forcibly took the possession of the plot, they stated that they would not permit to run the school in front of their house. Nothing has been elicited to discredit the testimony of this witness. 9. PW-4 Krishna Lal is the brother of deceased-Mahaveer and PW-1 Mani Ram. Nothing has been elicited to discredit the testimony of this witness. 9. PW-4 Krishna Lal is the brother of deceased-Mahaveer and PW-1 Mani Ram. His statement is almost in the line of PW-1 Mani Ram and PW-2 Raja Ram. It is stated that it was the gun shot fire, which hit Mahaveer. He admitted in the cross-examination that there was hot discussion in the meeting with appellants-Baldev Singh and Boota Singh. 10. PW-5 Gopi Ram and PW-6 Sohanlal are formal police witnesses. PW-8 Virendra Jakhar is the investigating officer. He has given details of investigation. He has stated that accused-Asgar was arrested vide Ex.P/27. While accused-Asgar Ali was in custody, he made a disclosure statement vide Ex.P/28 leading to recovery of 12 bore single barrel gun vide Ex.P/29. As per the FSL reports Ex.P/30 and 31, the gun was in serviceable condition. 11. Dealing with the criticism levelled by the learned counsel as to the inconsistency in the ocular and medical evidence, we are of the view that the contention deserves to be rejected. It is well established that a medical expert's opinion is always not final and binding, particularly when the testimony of eye-witnesses is otherwise trustworthy and finds corroboration from other circumstantial evidence. 12. On careful consideration of the statements of all the four eye-witnesses, we find that there is neither inconsistency nor any improbability, which may discredit the testimony of these witnesses. They are the most natural witnesses. Appellants were unhappy with the persons, who had participated in the panchayat meeting after they had forcibly taken possession of the plot belonging to Tek Chand. They fired the gunshots on the persons, who were returning from the meeting. Out of four, two persons are injured eye-witnesses. Their presence is established from the fact that they had also sustained firearm injuries. All the four eye-witnesses have successfully withstood the test of cross-examination and thus their testimony has been rightly accepted by the learned trial Court. The eye-witnesses have supported the prosecution case in all material particulars. It finds corroboration from the medical evidence and other circumstantial evidence including the recovery of gun from accused-Asgar Ali. Thus, we have no hesitation in holding that all the appellants opened fire indiscriminately from their house, which hit PW-1 Mani Ram, PW-2 Raja Ram and deceased- Mahaveer. 13. The eye-witnesses have supported the prosecution case in all material particulars. It finds corroboration from the medical evidence and other circumstantial evidence including the recovery of gun from accused-Asgar Ali. Thus, we have no hesitation in holding that all the appellants opened fire indiscriminately from their house, which hit PW-1 Mani Ram, PW-2 Raja Ram and deceased- Mahaveer. 13. Accused-Asgar Ali has been rightly convicted for the offence under section 307 Indian Penal Code, as he fired the gun at PW-1 Mani Ram. 14. Coming to the question of conviction of appellants for the offence under section 302 Indian Penal Code with the aid of Section 34 Indian Penal Code, it is well settled that to invoke the aid of Section 34 Indian Penal Code, it must be shown that the criminal act complained against was done by any one of the accused persons in furtherance of the common intention. If it is shown, any one of the accused persons may be made liable for the crime in the same manner, as if the act were done by him alone. Reference be made to a decision of the judicial committee reported in AIR 1945 PC 118 . It is held therein that to convict an accused of an offence, applying Section 34, it is necessary to establish that the criminal act was done in concert pursuant to a prearranged plan. The said principle has been reiterated by the Apex Court in AIR 1955 SC 216 . The Apex Court in State of U.P. v. Iftikhar Khan reported in AIR 1973 SC 863 : 1973 Cr. L.R. (SC) 196 , has observed as follows : "It is not necessary to attract Section 34, that any overt act must be done by the particular accused. The section will be attracted if it is established that the criminal act has been done by anyone of the accused persons in furtherance of the common intention." 15. In the instant case, the appellants, as evident from the statements of PW-1 Mani Ram, PW-2 Raja Ram, PW-3 Tek Chand and PW-4 Krishna Lal, assembled at the house of Boota Singh and opened fire hitting PW-1 Mani Ram, PW-2 Raja Ram and deceased-Mahaveer in furtherance of their common intention to kill persons, who attended panchayat to oppose their act. In the instant case, the appellants, as evident from the statements of PW-1 Mani Ram, PW-2 Raja Ram, PW-3 Tek Chand and PW-4 Krishna Lal, assembled at the house of Boota Singh and opened fire hitting PW-1 Mani Ram, PW-2 Raja Ram and deceased-Mahaveer in furtherance of their common intention to kill persons, who attended panchayat to oppose their act. Thus, the appellants have been rightly convicted for the offence under section 302 with the aid of Section 34 Indian Penal Code. 16. In view of the aforesaid, we find no merit in the appeal and the same stands dismissed. The appellants are in jail. They will serve outs the remaining part of the sentence.Appeal allowed. *******