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Uttarakhand High Court · body

2007 DIGILAW 165 (UTT)

Munshi Ram and others v. State of U. P.

2007-04-09

DHARAM VEER

body2007
Judgment This criminal appeal, U/S 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), has been preferred by the appellants against their conviction and sentence recorded by the then II Addl. Sessions Judge, Nainital, vide judgment and order dated 22-12-1986, in Sessions Trial No. 221 of 1984, whereby the learned Sessions .Judge convicted all the accused/appellants U/S 307 read with Section 149 I.PC. and each of them were sentenced to undergo five years R.l. and a fine of Rs. 2000/- each and in default of payment of fine, to undergo three months S.1. Accused I appellants Hira Ram, Lal Chand, Barit Kumar, Jeet Kumar and Badhwa Ram were further convicted U/S 147 I.P.C. and each of them were sentenced to undergo one year's RI. The accused I appellants Munshi Ram S/o Chamba Ram, Deshraj and Munshi Ram S/o Gahna Ram were further convicted U/S 148 I.P.C. and each of them were sentenced to undergo two years RI. However, all the sentences were to run concurrently. 2. Briefly stated, the prosecution story, is as follows :- On 10-12-1983, at about 9A.M. Lachhman Ram S/o Jiwan Ram, residents of village Rajpura, P.S. Gadarpur, went to his plots numbering 37/1,37/2,49/1, and 49/2 to plough it by a tractor. There on the spot Munshi Ram S/o Chamba Ram Rio village Kuwankhera armed with Gandasa and rifle, appeared. This Munsi Ram was followed by Heera Ram S/o Jiwan Ram, Deshraj S/o Heera Ram, Lal Chand S/o Heera Ram, Barit Kumar S/o Heera Ram, all resident of village Kuwankhera and Munshi Ram S/o Gahna Ram, Badhawa Ram S/o Munshi Ram, and Jeet Kumar S/o Munshi Ram, all resident of village Rajpur, armed with Lathi, spear and axes. All the aforesaid persons started beating Lachhman Ram. Munshi Ram S/o Chamba Ram inflicted injury at his hand by Gandasa and Deshraj inflicted injury at his back by Gandasa. Meanwhile Ghanda Ram who is son of Lachhman Ram, who was driving tractor in the vicinity, appeared on the scene at the rescue of Lachhman Ram. Then all the accused persons started beating him also. Munshi Ram S/o Chamba Ram caused injury on the left hand of Ghanda Ram, Deshraj inflicted injury on the head and Munshi Ram S/o Gahna Ram inflicted injury on his back with Kassi and Barit Kumar caused injury on the right foot by lathi. Then all the accused persons started beating him also. Munshi Ram S/o Chamba Ram caused injury on the left hand of Ghanda Ram, Deshraj inflicted injury on the head and Munshi Ram S/o Gahna Ram inflicted injury on his back with Kassi and Barit Kumar caused injury on the right foot by lathi. On sustaining injuries, Ghanda Ram fainted and fell on the ground. In the meantime Chamba Ram son of Lachhman Ram also arrived at the spot. Accused persons tried to beat him also, but any-how he could run away to shelter himself. Thereafter Munshi Ram son of Chamba Ram tried to kill Laxman Ram by his rifle but he could not do so because of intervention of witnesses. 3. The written report of the occurrence, Ext. Ka. 7, was lodged by Lachhman Ram on 10-12-83 at 10-30 AM. at Police Station Gadarpur. On the basis of written F.I.R., chick FI.R, Ext. Ka.11 was drawn at the police station by Head Moharir Sultan Singh. A case U/Ss 147, 148, 324, 323/149 I.PC. was registered against the accused persons in the G.D. at report No. 15 dated 10-12-93, copy of which is Ext. Ka.12. 4. The injured Jhanda Ram was medically examined by Dr. H.V.M. Pant (P.W.1) as shown in the injury report, at 10.05 AM. on 10-12-83 in the P.H.C. Gadarpur, but he has stated in the court that he has examined Jhanda Ram at 11.05 A.M. on 10-12-1983 and found the following injuries on his person :1- Lacerated wound 8.5cm x 2cm x scalp deep over occipital region transverse in direction, 25 cm above and backward from the bridge of the nose. Fresh blood oozing out from the wound. The injury was kept under observation. 2- Incised wound 3cm x 0.5cm x 1cm over posterior aspect of the left forearm, transverse in direction, 2cm below left elbow joint. Fresh blood was oozing out from the wound. 3- Incised wound 3.5cm x 0.5cm x 0.5cm over back right side, 4cm downwards and medially from the tip of right shoulder. Transverse in direction. Injury No.1 was head injury, hence it was kept under observation. Injury Nos. 2 and 3 were caused by sharp edged weapon and the duration of all the injuries was fresh. The Medical Officer prepared injury repot Ext. Ka.1. In the opinion of the doctor, the injuries might have been caused on 10-12-83 at about 9AM. Transverse in direction. Injury No.1 was head injury, hence it was kept under observation. Injury Nos. 2 and 3 were caused by sharp edged weapon and the duration of all the injuries was fresh. The Medical Officer prepared injury repot Ext. Ka.1. In the opinion of the doctor, the injuries might have been caused on 10-12-83 at about 9AM. by sharp edged weapon like Gandasa and Barcha. However, injury No.1 could have been caused by blunt side of Gandasa. On the same day the Dr. H.V.M. Pant also examined Lachhman Ram at 11.55 AM. and found the following injuries on his person: 1- Lacerated wound 6cm x 4cm x skin deep over the back of left forearm middle 1/3rd. 2- Abrasion 3cm x 1 cm over anterior aspect of right forearm, 1 cm proximal to right wrist transverse in direction. 3- Incised wound 4cm x .5cm x 1 cm over right scapular region. Transverse in direction, 12 cm backward and medial from the tip of right shoulder. Fresh blood coming from the wound. In the opinion of the doctor the patient was complaining pain all over body. All the injuries were simple in nature. Injury NO.3 had been caused by sharp edged weapon like Gandasa or Kassi Lathi. The duration of the injuries was fresh and could have been inflicted on 10-12-1983 at about 9 AM. The doctor prepared injury report Ext. Ka.2. Dr. H.V.M. Pant, also prepared supplementary report, Ext. Ka.3 of the injuries of Jhanda Ram on the basis of the x-ray report of Dr. O.S. Sharma, Superintendent, Jawahar Lal Nehru, Civil Hospital, Rudrapur and in his opinion injury No.1 caused to Jhanda Ram was sufficient to cause death in the ordinary course of nature. Dr. O.S. Sharma, PW.2, was posted as Superintendent, Jawahar Lal Nehru, Civil Hospital, Rudrapur at the time of incident. Under his supervision x-rays of injured Jhanda Ram were taken and x-ray plates Exts. 1 to 4 were taken in the hospital. This witness has prepared x-ray report, Ext. Ka.4. 5. S.I. Ram Lal Sagar, P.W.8 investigated the case. He recorded statements of some of the witnesses and arrested the accused persons. He visited the place of occurrence on 11-12-1983 and prepared site-plan, Ext. Ka.13. Thereafter the investigation was handed over to S.I. B.S. Negi. 6. This witness has prepared x-ray report, Ext. Ka.4. 5. S.I. Ram Lal Sagar, P.W.8 investigated the case. He recorded statements of some of the witnesses and arrested the accused persons. He visited the place of occurrence on 11-12-1983 and prepared site-plan, Ext. Ka.13. Thereafter the investigation was handed over to S.I. B.S. Negi. 6. Cross-case of the incident was also filed by Deshraj S/o Heera Ram against Jhanda Ram, Lachhman Ram, am Prakash, Ganga Ram, Lekhraj and Chamba Ram which was registered at crime No. 213-A, UISs 147, 323 I.P.C. Investigation of cross case was started by P.W.8, S.I. Ram Lal Sagar. He visited the place of occurrence and prepared siteplan, certified copy of which has been filed as Ext. Ka.14. Certified copy of Khatauni, Ext.Ka.15 has been filed by the complainant Lachhman Ram which shows that plot Nos. 37/1 Min., 37/2 Min., 49/1 Min. and 49/2 Min. are entered in his name. 7. S.l. B.S. Negi, on receiving the investigation of the case; submitted charge sheet, Ext. Ka.9 against the accused persons of the present case. He also submitted charge sheet in cross case, the certified copy of which is Ext. Ka.10. 8. The Chief Judicial Magistrate, Nainital vide his order dated 19-11-1984, committed the case to the court of Sessions. 9. The" Addl. Sessions Judge, Nainital, framed charges U/Ss 147, 307/149 I.P.C. against accused Hira Ram, Lal Chand, Barit Kumar, Jeet Kumar and Badhawa Ram and also framed charges U/Ss 148,307/149 I.P.C. against accused Munshi Ram S/o Chamba Ram. The accused persons denied the charges and claimed to be tried. 10. The prosecution in support of its case, produced 8 witnesses. Of these, P.W.1, Dr. H.V.M. Pant had medically examined the injured persons Jhanda Ram and his father Lachhman Ram. Under the supervision of P.W.2, Dr. O.S. Sharma, x-rays of injured Jhanda Ram were taken and he had prepared x-ray report. P.W.3, Shyam Chand is the eyewitness of the occurrence. P.W.4, Jhanda Ram is the injured eyewitness. P.W.5, Lachham Ram is also injured eyewitness. P.W.6, S.I. Bag Singh Negi had submitted charge sheet in the case after completing the investigation. P.W.7, Constable Babu Lal has given his statement in the form of affidavit. This witness had brought the injured Jhanda Ram and Lachhman Ram to P.H.C.Gadarpur for their medical examination. P.W.8 is the first I.O. This witness has proved the chick F.I.R. Ext. P.W.6, S.I. Bag Singh Negi had submitted charge sheet in the case after completing the investigation. P.W.7, Constable Babu Lal has given his statement in the form of affidavit. This witness had brought the injured Jhanda Ram and Lachhman Ram to P.H.C.Gadarpur for their medical examination. P.W.8 is the first I.O. This witness has proved the chick F.I.R. Ext. Ka.11, copy of G.D. of registration of case, Ext. Ka.12 and site plan, Ext.Ka.13. This witness has also investigated the cross case and proved certified copy of site plan, t Ext.Ka.14 prepared in the cross case. 11. The accused persons in their statements U/S 313 Cr.P.C. have denied the allegations and alleged that they have been falsely implicated due to enmity. 12. Accused persons also produced D.W.1, Beni Ram S/o Narayan Das, who was posted as Jiledar. This witness has been produced to prove that complainant Lachham Ram had no physical possession on the land of Khasra plot Nos. 37/1,37/2,49/1 and 49/2. 13. The defence also filed documentary evidence. Ext. Kha.1 is the certified copy of report of Jiledar dated 19-11-84. Ext. Kha.2 is the copy of Khasra Khautani. Ext. Kha.3 is the copy of question answer. EX.Kha.4 is the copy of Khasra of village Kunwakhera 1375 Fasli. Ext. Kha.5 is the 'copy of Khasra 1378 Fasli. Ext. Kha.6 is the report of Deputy Revenue Officer, Irrigation Division Haldwani, Nainital. Ext. Kha.7 is the report of Jiledar. Ext.Kha.8 is the copy of Khasra Khautani of village Kunwakhera showing name of Lachhman Ram on various plots. Ext. Kha.9 is the copy of gazette notification and receipts Ext. Kha. 10 to 17 are receipts of malguzari of the disputed land. 14. The learned Sessions Judge, on appreciation of material on record and after having heard the learned counsel for the parties, held the accused/appellants guilty of the charges levelled against them. All the accused I appellants were sentenced to undergo five years RI. and a fine of Rs. Kha. 10 to 17 are receipts of malguzari of the disputed land. 14. The learned Sessions Judge, on appreciation of material on record and after having heard the learned counsel for the parties, held the accused/appellants guilty of the charges levelled against them. All the accused I appellants were sentenced to undergo five years RI. and a fine of Rs. 2000/- each and in default of payment of fine, to undergo three months S.I. U/S 307/149 I.P.C. Accused / appellants Hira Ram, Lal Chand, Barit Kumar, Jeet Kumar and Badhwa Ram were further convicted U/S 147 I.P.C. and each of them were sentenced to undergo one year's R.I. The accused I appellants Munshi Ram S/o Chamba Ram, Deshraj and Munshi Ram S/o Gahna Ram were further convicted U/S 148 I.P.C. and each of them were sentenced to undergo two years RI. However, all the sentences were to run concurrently. 15. Feeling aggrieved, the appellants have come up in appeal before this Court. 16. I have heard the learned counsel for the parties and perused the record. 17. Accused Hira Ram and Lal Chand and complainant Lachhman Ram are real brothers. There was dispute between these persons with regard to their ancestral land. All the three brothers have 1/3rd share in the property of their father. According to the prosecution case complainant Lachhman Ram was in physical possession of 1/3rd share of plot Nos. 37/1,37/2. Perusal of copy of Khautani Ext. Ka. 15 shows that'1/3rd share in Khasra plot No. 371 1,37/2, is entered in the name of Lachhman Ram S/o Jiwan Ram. The case of the prosecution is that occurrence took place in Khasra plot Nos. 37/1 and 37/2. On the day of the occurrence complainant Lachhman Ram was ploughing his aforesaid plots by a tractor and the accused persons formed an unlawful assembly with intent to kill him and his son Jhanda Ram came there armed with Lathi, Gandasa, rifle and assaulted them. To prove the incident, prosecution has produced three eyewitnesses, viz. P.W.3, Shyam Chand, PW.4 Jhanda Ram injured and P.W. 5 Lachhman Ram injured eyewitness. 18. P.W.3, Shyam Chand has stated in his statement on oath that on 10-12-1983 at about 9 A.M. he was ploughing his field. He heard noise from the direction of Lachhman Ram's field. He initially saw accused Munshi Ram S/o Chamba Ram in Lachhman Ram's field. P.W.3, Shyam Chand, PW.4 Jhanda Ram injured and P.W. 5 Lachhman Ram injured eyewitness. 18. P.W.3, Shyam Chand has stated in his statement on oath that on 10-12-1983 at about 9 A.M. he was ploughing his field. He heard noise from the direction of Lachhman Ram's field. He initially saw accused Munshi Ram S/o Chamba Ram in Lachhman Ram's field. Accused Munshi Ram S/o Chamba Ram was holding a Gandasa in his hand and he had a rifle hanging on his shoulder. Then he saw that all other accused arrived there. All, except accused Hira Ram, were armed with weapons. Accused Deshraj had a Gandasa; accused Munshi Ram S/o Gahna Ram had a Kassi; accused Badhawa Ram had an axe and other three accused Jeet Kumar, Barit Kumar and Lal Chand had Lathis in their hands. Accused Munshi Ram S/o Chamba Ram hit Lachhman Ram on the hand with Gandasa; accused Deshraj hit him on the shoulder with Gandasa; Jhanda Ram who was ploughing a nearby field, came to the rescue of his father Lachhman Ram. Accused Desh Raj hit Jhand Ram with Gandasa on his head. Accused Munshi Ram S/o Chamba Ram hit Jhanda Ram on the hand with Gandasa. Accused Munshi Ram Sio Gahna Ram hit Jhanda Ram with a Kassi at his back and accused Barit Kumar wielded Lathi. Meanwhile Chamba Ram another son of Lachhman Ram came there. The accused persons advanced towards Chamba Ram with common object of assaulting him but he ran away from the spot. He further alleged that he and Om Prakash and Sanjha Ram appeared on the scene and hence the accused ran away. This witness has been cross-examined at length but nothing material has come out from it which may show that the witness was in any manner annoyed towards the accused persons and was interested to give evidence in favour of complainant Lachhman Ram. This witness was ploughing his nearby field and his presence at the spot is very natural. In my opinion this witness is a natural and trustworthy. 19. P.W.4, Jhanda Ram is the injured eyewitness. He has deposed that his father has two other brothers, Hira Ram and Chandi Ram. This witness was ploughing his nearby field and his presence at the spot is very natural. In my opinion this witness is a natural and trustworthy. 19. P.W.4, Jhanda Ram is the injured eyewitness. He has deposed that his father has two other brothers, Hira Ram and Chandi Ram. In village Kunwarkhera Lachhman Ram had got 1/3rd share of land which originally belonged to Jiwan Ram, father of Lachhman Ram; 1/3rd of land of Jiwan Ram belonged to Hira Ram and the remaining 1/3rd share belonged to Chandi Ram. All the three brothers are separately in occupation of this land of Jiwan Ram. The Khautani relating to this land of Jiwan Ram is marked Ext. Ka. 5. Accused Munshi Ram S/o Chamba Ram is husband of Jhanda Ram's wife's sister. Accused Hira Ram is Jhanda Ram's real uncle. The accused Deshraj, Barit Kumar and Lal Chand are accused Hira Ram's sons and thus, cousins of Jhanda Ram. Accused Munshi Ram son of Gahna Ram is Jhanda Ram's real maternal uncle and accused Badhawa Ram and Jeet Kumar are Munshi Ram's sons and thus, cousins of Jhanda Ram from maternal side. According to this witness on 10-12-1983 at about 9 A.M. he was ploughing the southern portion of the field and his father the northern portion of the field in village Kuwarkhera. Accused Munshi Ram S/o Chamba Ram came to the field where Lachhman Ram was ploughing the field. He was armed with a Gandasa and rifle. Munshi Ram S/o Chamba Ram was followed by rest of the accused persons. Accused Munshi Ram S/o Gahna Ram had a Kassi, accused Deshraj had a Gandasa, accused Barit Kumar had a lathi and rest of the accused had axe, lathi and spears in their hands. The accused Munshi Ram S/o Chamba Ram hit Lachhman Ram with Gandasa on his left forearm and then accused Deshraj hit Lachhman Ram with a Gandasa on his back. There was hue and cry. The witness rushed to rescue his father Lachhman Ram. The accused left Lachhman Ram and advanced towards this witness with the common object of assaulting him. The accused Munshi Ram S/o Chamba Ram hit Lachhman Ram with Gandasa on his left forearm and then accused Deshraj hit Lachhman Ram with a Gandasa on his back. There was hue and cry. The witness rushed to rescue his father Lachhman Ram. The accused left Lachhman Ram and advanced towards this witness with the common object of assaulting him. The accused Munshi Ram S/o Chamba Ram hit Jhanda Ram with a Gandasa on his left forearm; accused Deshraj hit him on the head with a Gandasa; accused Munshi Ram S/o Gahna Ram 'hit Jhanda Ram with a Kassi on his back on the right side and accused Barit Kumar wielded Lathi on him at his right leg and he received injuries. This witness on receiving injuries fell down. He could not say whether he received injury of Gandasa on the head from the sharp edged side or blunt side. Meanwhile, during marpit his brother Chamba Ram also came there. The accused rushed at Chamba Ram as well, but he ran away. The accused Munshi Ram S/o Chamba Ram threatened to shoot with the rifle, but did not use it due to the timely intervention of the witnesses Shyam Chand, Om Prakash and Sanjha Ram. This witness further alleged that he was medically examined for his injuries in the hospital for 20-22 days. In the cross-examination this witness has deposed that his father is ploughing the plot Nos. 37/1 and 37/2 from the year 1976. He has further alleged that at the spot oral partition of land has been done. This witness has denied the suggestion of lodging false case against the accused persons. To me, this witness seems to be a trustworthy and reliable witness. 20. The another injured eyewitness is P.W.5 Lachhman Ram. He has deposed that in village Kuwarjkhera, his father has agricultural land, and he is in possession of 1/3rd part of the holding of his father. On 10-12-1983 at about 9 A.M. he was ploughing a portion of the field, which had come to his share from his father and on which he was in possession. His son Jhanda Ram was ploughing other portion of the said field. Accused Munshi Ram S/o Chamba Ram came to him at the field armed with a Gandasa and rifle. Then remaining accused appeared on the scene. His son Jhanda Ram was ploughing other portion of the said field. Accused Munshi Ram S/o Chamba Ram came to him at the field armed with a Gandasa and rifle. Then remaining accused appeared on the scene. Accused Deshraj had a Gandasa; accused Munshi Ram S/o Gahna Ram had a Kassi and other accused were armed with axe, Gandasa and Lathis. Accused Munshi Ram S/o Chamba Ram hit him with a Gandasa. Accused Desh Raj hit on him with Gandasa on his back. His son Jhanda Ram came to his rescue. The accused left him and rushed at Jhanda Ram to assault him. Accused Munshi Ram S/o Chamba Ram hit Jhanda Ram with a Gandasa on his left forearm; accused Deshraj hit Jhanda Ram on the head with a Gandasa; accused Munshi Ram S/o Gahna Ram hit Jhanda Ram with Kassi on his back and accused Barit Kumar wielded Lathi at him at his leg. This witness further deposed that accused Munshi Ram S/o Chamba Ram threatened to shoot with rifle, but did not do so. Meanwhile, during the marpit, Lachhman Ram's another son Chamba Ram also came at the spot, but he ran away when accused rushed towards him and on hearing the noise of scuffle, witnesses appeared on the scene and intervened. This witness is also the complainant of the case. He has lodged the written report, Ext. Ka.7 at police station Gadarpur. This witness has been cross-examined at length but nothing material has come out from his cross-examination which may discredit his testimony. 21. From analysis of the evidence of above three eye witnesses, it is clearly established that the accused persons armed with different weapons formed an unlawful assembly and came at the field of Lachhman Ram where he along with his son Jhanda Ram was ploughing the field and the accused persons in furtherance of their common object to commit the murder of the injured persons assaulted them with deadly weapons. 22. Learned counsel first of all submitted that according to the F.I.R. the occurrence is alleged to have taken place over plot Nos. 37/1, 37/2, 49/1 and 49/2, but in his statement the injured Jhanda Ram, P.W.4, has stated that the occurrence took place in plot Nos. 37/1 and 37/2 alone. He pointed out that the place where the prosecution alleges the marpit to have taken place does not belong to the complainant. 37/1, 37/2, 49/1 and 49/2, but in his statement the injured Jhanda Ram, P.W.4, has stated that the occurrence took place in plot Nos. 37/1 and 37/2 alone. He pointed out that the place where the prosecution alleges the marpit to have taken place does not belong to the complainant. From the papers filed by the accused, the disputed land belongs to Hira Ram alone and he is in exclusive possession over the land in dispute. 23. The above submission of the learned counsel has no substance. In support of this possession over the land in dispute Lachhman Ram has filed copy of Jot Chakbandi Aakar Patra-II which is marked Ext. Ka.5 where P.W.5 Lachhman Ram is shown in possession of 1/3rd share of the plot Nos. 37/1 and 37/2 of village Kuwarkhera in the 1383 fasli. The another document filed by the complainant is extract of Khautani for the period 1392 F to 1397F which is marked as Ext. Ka.15. The above document shows that continuous possession of Lachhman Ram has been shown on 1/3rrJ part of plot Nos. 37/1 and 37/2 since 1383 F. Even if for the sake of argument it is held that Lachhman Ram was not in exclusive possession in any part of plot Nos. 37/1 and 37/2 then he is a co-sharer over these plots with his other brothers Hira Ram and Chandi Ram and it is well settled law that possession of one co-sharer is possession of all provided ouster of co-sharer is alleged and proved. Thus, the complainant Lachhman Ram being a co-sharer of 1/3rd share in plot Nos. 37/1 and 37/2, the other co-sharers have got no right to use violence or force and inflict injuries on him. 24. No doubt, in the written report, Ext. Ka.7 the complainant has made a general mention that on the day of occurrence he had gone to plough his plot Nos. 37/1,37/2,49/1 and 49/2 but he has not mentioned specific plot number where the occurrence took place. P.W.4, Jhanda Ram disclosed the place of occurrence plot Nos. 37/1 and 37/2. This statement of this witness finds support from the site plan, Ext. Ka.13 which was prepared by the I.O. the next day of the occurrence i.e. 11-12-83. In the site plan place of occurrence has been denoted with letter, 'A’ which is in plot Nos. 37/1 and 37/2. 37/1 and 37/2. This statement of this witness finds support from the site plan, Ext. Ka.13 which was prepared by the I.O. the next day of the occurrence i.e. 11-12-83. In the site plan place of occurrence has been denoted with letter, 'A’ which is in plot Nos. 37/1 and 37/2. Thus the place of occurrence stands proved and there is no doubt about it. 25. Learned counsel for the appellant next argued that according to prosecution witness Jhanda Ram as well as perusal of the F.I.R. shows that Sanjha Ram and Om Prakash had reached at the spot and they had intervened the marpit but they have not been examined by the prosecution and their non-examination creates doubt in the prosecution story. 26. From the complainant side explanation has come to the effect that these two witnesses were arrayed as accused along with the injured witnesses of the present case and they were won over by the accused persons hence they were unwilling witnesses and did not come forward to support the prosecution case. The above explanation is a bonafide one. Therefore no adverse inference against the prosecution is to be drawn. In my opinion the submission raised by the learned counsel in this regard is not tenable. 27. The learned counsel also argued that there are contradictions in the statement of Lachhman Ram. He has not assigned any role to accused Badhawa Ram, Hira Ram, Lal Chand and Jeet Kumar, and therefore, there are material contradictions on the point of Marpit in the statement of Lachhman Ram and other eye witnesses. It was also pointed out that Jhanda Ram has failed to support the version of F.I.R. and the medical evidence. 28. Perusal of statement of Lachhman Ram, P.W.5, shows that he has assigned the specific role of the accused persons. He has deposed that accused Munshi Ram S/o Chamba Ram was armed with Gandasa and rifle came to him. Thereafter other accused persons, Deshraj armed with Gandasa; Munshi Ram S/o Gahna having Kassi and remaining accused persons were armed with Gandasa, axe and Lathis. He further deposed that Munshi Ram S/o Chamba Ram assaulted him with Gandasa; Desh Raj hit on him with Gandasa on his back and when his son Jhanda Ram came to his rescue the accused persons left him and advanced towards his son and started assaulting him. He further deposed that Munshi Ram S/o Chamba Ram assaulted him with Gandasa; Desh Raj hit on him with Gandasa on his back and when his son Jhanda Ram came to his rescue the accused persons left him and advanced towards his son and started assaulting him. He has specifically assigned the role of the accused persons by alleging that Munshi Ram S/o Chamba Ram assaulted Jhanda Ram on his hand by Gandasa; accused Desh Raj assaulted him with Gandasa on his head; accused Barit Kumar assaulted with Lathi on his leg; accused Munshi Ram S/o Gahna Ram assaulted Jhanda Ram by Kassi on his back. The statement of this witness has been fully supported by the evidence of P.W.4, Jhanda Ram. With regard to participation of accused/appellants Badhawa Ram, Hira Ram, Lal Chand and Jeet Kumar it has come in the evidence of the prosecution witnesses as well as in the F.I.R. that these four accused persons along with other accused persons were the member of unlawful assembly and in prosecution of their common object they being armed with Lathis, axe etc. had come at the place of occurrence and pounced upon the injured witnesses with intention to kill them. Therefore, participation of all the accused/ appellants has been fully established by the prosecution. 29. So far as the medical evidence in the case is concerned, PW.1, Dr. H.V.M. Pant had medically examined the injured witnesses Jhanda Ram and Lachhman Ram. According to the medical evidence injury No.1 received by Jhanda Ram was on the head and was kept under observation. The injuries No.2 and 3 were caused by sharp edged weapon. In the opinion of the doctor injury No.1 of Jhanda Ram could have been caused by blunt side of Gandasa, which in the ordinary course of nature was sufficient to cause his death. The Medical Officer found three injuries on the body of Lachhman Ram and in his opinion injury No.3 had been caused by sharp edged weapon like a Gandasa. Rest two injuries are possible to be caused by Lathi. He also opined that the injuries to the injured Jhanda Ram and Lachhman Ram might have been inflicted on 10-12-1983 at about 9 A.M. Thus the medical evidence fully supports' the prosecution version. 30. Rest two injuries are possible to be caused by Lathi. He also opined that the injuries to the injured Jhanda Ram and Lachhman Ram might have been inflicted on 10-12-1983 at about 9 A.M. Thus the medical evidence fully supports' the prosecution version. 30. It will not be out of place to mention here that the defence has examined one Beni Ram (D.W.1) Jiledar, Irrigation Department, Sharda Canal Division, Hardoi. This witness has stated that he remained posted as Jiledar at Rudrapur in Irrigation Department from the year 1981 to June, 1985. Village Kuwarkhera fell under his circle. He has brought with him the original Khasras of Irrigation Department and the record in which there is a note of Irrigation authority on the application dated 29-8-1984 of Lachhman Ram. This witness has further stated that on receiving the application of Lachhman Ram he made local inspection and did not find the possession of Lachhman Ram on the field denoted in the application. The witness submitted his report to the Assistant Engineer, Irrigation Department, II Sub Division, Rudrapur. The true copy of the report has been proved as Ext. Kha. 1. The evidence of this witness is not of any help to the accused/appellants As I have already stated above in the body of this judgment that the complainant Lachhman Ram had 1/3rd share in Khasra plot Nos. 37/1 and 37/2 and he had every right to cultivate his share and the accused / appellants had not right to use violence and force and to give murderous assaults on him and his son injured Jhanda Ram. Further Ext. Ka.5 and Ext. Ka.15 clearly establish the ownership as well as possession of Lachhman Ram on 1/3rd share of the land of Khasra plot Nos. 37/1 and 37/2. 31. Now coming to the motive part of the case, it is admitted to the parties that there was dispute between Lachhman Ram on one side and the accused persons on the other side in relation to holding of Jiwan Ram. It is also admitted to the parties that proceedings U/S 145 Cr.P.C. is pending in the court of law among themselves. Thus the accused/ appellants had motive to commit the crime. 32. Another aspect of the case is that the accused /appellants Desh Raj have also lodged F.I.R. against the injured and the other witnesses and the matter was investigated. It is also admitted to the parties that proceedings U/S 145 Cr.P.C. is pending in the court of law among themselves. Thus the accused/ appellants had motive to commit the crime. 32. Another aspect of the case is that the accused /appellants Desh Raj have also lodged F.I.R. against the injured and the other witnesses and the matter was investigated. According to the complainant side the case was pending in the court. However the result of the case has not been brought on record by either party. Anyhow, the evidence adduced in the present case is fully reliable and clearly establishes the offence punishable U/Ss 147, 148 and 307/149 I.P.C. 33. Learned counsel for the appellants lastly contended that the incident in question was occurred on 10-12-1983 and the appellant No.3-Jeet Kumar and appellant No.6- Lal Chand were minor at the time of commission of crime, as such the trial is vitiated. Lower court record shows that this plea was never raised on behalf of the appellants Jeet Kumar and Lal Chand that they were minor at the time of commission of crime, before trial court. Even in the grounds of appeal, it is nowhere mentioned that the appellants No.3 and 6 were minor at the time of commission of crime and trial by Sessions Judge is vitiated. I have perused the statements recorded under Section 313 of Cr.P.C. In the said statements, the age of Jeet Kumar is 16 years and the age of Lal Chand is 14 years at the time of recording of statement under Section 313 Cr.P.C. i.e. on 02-08-1985. For deciding the age of the appellants at the time of commission of crime, the date of occurrence has to be seen which is 10-12-1983. The statement under Section 313 of Cr.P.C. was recorded on 2-8-1985. On that day, the appellant NO.3-Jeet Kumar was 16 years of age. The age of the appellant No.3-Jeet Kumar should be seen on the date of occurrence which is 10-12-1983, hence the Jeet Kumar was about 14 1/4 years of age at the time of commission of crime and less than 16 years of age. In the same way, the age of Respondent No.6- Lal Chand should be seen. The age of the appellant No.3-Jeet Kumar should be seen on the date of occurrence which is 10-12-1983, hence the Jeet Kumar was about 14 1/4 years of age at the time of commission of crime and less than 16 years of age. In the same way, the age of Respondent No.6- Lal Chand should be seen. The respondent no.6 was 14 years of age at the time of recording of statement under Section 313 Cr.P.C. on 02-08-1985, and hence he was about 12 1/4 years of age at the time of incident i.e. 10-12-1983 and he too was less than 16 years of age. Hence, both the appellants No.3 and 6 namely Jeet Kumar and Lal Chand comes under the definition of child under the U.P. Children Act, 1951 which read as under :- 2(4) "child" means a person under the age of sixteen years. 34. Keeping in view the principle of law laid down by Hon'ble Apex Court in Bhoop Ram Vs. State of U.P reported in 1989 Supreme Court Cases (Crl) 486, as well as in the case of Pradeep Kumar Vs. State of U.P (1993) All. L.J. 1362, while maintaining the conviction of the appellants No. 3- Jeet Kumar and No.6- Lal Chand, the conviction is to be sustained however, the sentence awarded to them deserves to be set aside. In Shoop Ram's case (Supra), the Hon'ble Apex Court has held as under:- "7. On a consideration of the matter, we are of the opinion that the appellant could not have completed 16 years of age on 3-10-1975 when the occurrence took place and as such he ought to have been treated as a "child" within the meaning of Section 2(4) of the U.P. Children Act, 1951 and dealt with under Section 29 of the Act. We are persuaded to take this view because of three factors. The first is that the appellant has produced a school certificate which carries the date 24-6-1960 against the column 'date of birth'. There is no material before us to hold that the school certificate does not relate to the appellants or that the entries therein are not correct in their particulars. The first is that the appellant has produced a school certificate which carries the date 24-6-1960 against the column 'date of birth'. There is no material before us to hold that the school certificate does not relate to the appellants or that the entries therein are not correct in their particulars. The Sessions Judge has failed to notice this aspect of the matter and appears to have been carried away by the opinion of the Chief Medical Officer that the appellant appeared to be about 30 years of age as on 30-4-1987. Even in the absence of any material to throw doubts about the entries in the school certificate, the Sessions Judge has brushed it aside merely on the surmise that it is not unusual for parents to understate the age of their children by one or two years at the time of their admission in schools for securing benefits to the children' in their future years. The second factor is that the Sessions Judge has failed to bear in mind that even the trial Judge had thought it fit to award the lesser sentence of imprisonment for life to the appellant instead of capital punishment when he delivered judgment on 12-9-1977 on the ground the appellant was a boy of 17 years of age. The observation of the trial Judge would lend credence to the appellant's case that he was less than 10 (sic 16) years of age on 3-10-1975 when the offences were committed. The third factor is that though the doctor has certified that the appellant appeared to be 30 years of age as on 30-4-1987, his opinion is based only on an estimate and the possibility of an error of estimate creeping into the opinion cannot be ruled out. As regards the opinion of the Sessions Judge, it is mainly based upon the report of the Chief Medical Officer and not on any independent material. On account of all these factors, we are of the view that the appellant would not have completed 16 years of age on the date the offences were committed. It therefore follows that the appellant should have been dealt with under the U.P. Children Act instead of being sentenced to imprisonment when he was convicted by the Sessions Judge under various counts. 8. It therefore follows that the appellant should have been dealt with under the U.P. Children Act instead of being sentenced to imprisonment when he was convicted by the Sessions Judge under various counts. 8. Since the appellant is now aged more that 28 years of age, there is no question of the appellant now being sent to an approved school under the U.P. Children Act for being detained there. In a somewhat similar situation, this Court held in Jayendra Vs. State of U.P. that where an accused had been wrongly sentenced to imprisonment instead of being treated as a "child" under Section 2(4) of the U.P. Children Act and sent to an approved school and the accused had crossed the maximum age of detention in an approved school viz. 18 years, the course to be followed is to sustain the conviction but however quash the sentence imposed on the accused and direct his release forthwith. Accordingly, in that case also, we sustain the conviction of the appellant under all the charges framed against him but however quash the sentence awarded to him and direct his release forthwith. The appeal is therefore partly allowed insofar as the sentence imposed upon the appellant are quashed. " 35. From the above discussion, I come to the definite conclusion that the prosecution has been able to prove its case against the accused/appellants. 36. The appeal of the Jeet Kumar and Lal Chand is allowed partly. Their conviction under Section U/s 307 read with Section 149 I.PC. is maintained. But being child under the age of 16 years at the time of commission of crime, their sentences are set aside following the Hon'ble Apex Court judgment in Bhoop Ram's case (Supra). They are on bail and they need not surrender. The appeal of rest of the appellants namely Munshi Ram S/o Sri Gahna Ram, Badhwa Ram, Heera Ram, Barit Kumar, Desh Raj and Munshi Ram S/o Sri Chamba Ram is hereby dismissed. Their conviction awarded to them by the trial court sentencing each of them to undergo five years R.I. and a fine of Rs. The appeal of rest of the appellants namely Munshi Ram S/o Sri Gahna Ram, Badhwa Ram, Heera Ram, Barit Kumar, Desh Raj and Munshi Ram S/o Sri Chamba Ram is hereby dismissed. Their conviction awarded to them by the trial court sentencing each of them to undergo five years R.I. and a fine of Rs. 2000/- each and in default of payment of fine, to undergo three months S.I.; further convicting appellants Hira Ram, Lal Chand, Barit Kumar and Badhwa Ram U/S 147 I.P.C. and sentencing each of them to undergo one year's RI.; except Lal Chand (sentence of the Lal Chand is set aside being a child) further convicting the accused/appellants Munshi Ram S/o Chamba Ram, Desraj and Munshi Ram S/o Gahna Ram U/S 148 I.P.C. and sentencing each of them to undergo two years RI., is hereby affirmed. However, all the sentences shall run concurrently as held by the trial court. 37. The accused/appellants namely Munshi Ram S/o Gahna Ram, Badhawa Ram, Heera Ram, Barit Kumar, Deshraj and Munshi Ram S/o Chamba Ram are on bail. Their bail bonds are hereby cancelled and sureties are discharged. They shall be taken into custody forthwith so as to serve out the sentences awarded against them. 38. Let the record be immediately sent back to the trial court concerned for compliance.