JUDGMENT 1. - In this appeal, appellants have challenged the judgment dated April 30, 2003 of the learned Additional Sessions Judge (Fast Track), Dholpur whereby each of appellants Ramji and Peetam were convicted and sentenced as under : U/s 302/149 IPC : to suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer rigorous imprisonment for one month. U/s 148 IPC : to suffer rigorous imprisonment for one year. Both the sentences were ordered to run concurrently. 2. Briefly stated, the prosecution case is that complainant Mahaveer S/o Teekaram Gurjar R/o Kotra handed over a written report on 22.5.1981 at 11 PM to the Dy. Superintendent of Police Badi (District Dholpur) who had reached to the place of occurrence at village Kotra. In the report, it was stated that there had been exchange of hot words regarding installation of hand pump in the village by the Government in the day, so in the evening at about 6.30 PM, Jagdish S/o Peetam, Ramji, Hariya, Badna sons of Birkhe, Peetam S/o Hukma, Shiv Singh, Jagdish S/o Peetam, Bhagwan Singh, Rameshwar sons of Jagga, Girwar, Vijay Singh, Bhanwar Singh sons of Ram Singh, Diwan, Hakim sons of Ochha, Jadon S/o Rajaram, Nirbhya S/o Budha, Ramji S/o Manwe all Gurjar by caste, came armed with `lathis' and guns and attacked the house of Jagannath. Amongst them, Peetam, Hariya and Ramji were armed with guns. On hearing their noise, Mahaveer, Sobaran, Ramswaroop, Ram Bharosi, Amar Singh, Shankar Balbir, Narpat and Heera Singh also came there. In the attack, Ramji fired at Jagannath, and when he was tried to be saved, all the assailants attacked with guns and `lathis' and in the attack Jagannath, Heera Singh and Narpat died on the spot while Mst. Janka succumbed to the injuries later on and Sobaran Singh, Ramswaroop, Ram Bharosi, Amar Singh, Shankar, Smt. Baijanti, Mahaveer and Balbir also sustained gun shot injuries while the complainant himself and Balbir sustained lathi injuries. 3. The aforesaid report was forwarded to the police station where a case u/s 147, 148, 149, 307, 302 IPC was registered. The Dy. S.P. who had reached at the spot, proceeded with the investigation and prepared site inspection map, recovered six empty cartridge cases of 8 mm/.315 IN KF and prepared other necessary memos. The autopsy on the dead body of Heera Singh, Jagannath, Narpat and also of Mst. The Dy. S.P. who had reached at the spot, proceeded with the investigation and prepared site inspection map, recovered six empty cartridge cases of 8 mm/.315 IN KF and prepared other necessary memos. The autopsy on the dead body of Heera Singh, Jagannath, Narpat and also of Mst. Janka, who had succumbed to the injuries, were got conducted. After collecting necessary evidence, accused Bhagwan Singh, Badan Singh, Bhagwan Singh s/o Nahar Singh, Ramjilal, Deewan, Hakim, Jagdish, Jadon Singh, Ram Singh Siriya and Sonaram were challaned to the court in person. Challan against accused Bhanwar Singh, was filed as a juvenile while against accused Ramji, Hariya, Peetam, Rameshwar, Vijay Singh, incomplete challan was filed in their absence as they were absconding. Thereafter on being arrested, complete charge-sheet against accused Rameshwar was also filed. All the above accused who were put to trial were acquitted after the trial vide judgment dated 25.11.85 passed by Addl. Sessions Judge, Dholpur. Thereafter, accused Nirbhaya was also arrested and on being committed, he was also put to trial and he was also acquitted by Addl. Sessions Judge, Dholpur vide judgment dated 2.4.86. Thereafter, the present accused appellant Ramji @ Ramjilal was arrested and on being committed, he was put to trial and alongwith accused Peetam, while accused Hariya @ Hari Singh and Vijay Singh were reported to have expired. 4. Accused Ramji and Peetam were charge-sheeted for the offences u/s 148, 302, 302/149, 307, 307/149, 325/149, 323/149 IPC. They pleaded not guilty and hence the trial commenced. The prosecution examined as many as ten witnesses and then the statements of the accused were recorded u/s 313 Cr.PC. They expressed that they had committed no offence and were falsely implicated on account of enmity. However, no defence was led by them. After trial the learned trial court convicted the two accused as stated herein above. 5. During the appeal, accused Peetam has expired and hence his appeal stood abated. Thus, we proceed to decide the appeal of Ramji @ Ramji Lal only. 6. We have heard learned counsel for the appellant, learned Public Prosecutor for the State and with their assistance scanned the material on record. 7. 5. During the appeal, accused Peetam has expired and hence his appeal stood abated. Thus, we proceed to decide the appeal of Ramji @ Ramji Lal only. 6. We have heard learned counsel for the appellant, learned Public Prosecutor for the State and with their assistance scanned the material on record. 7. Death of Narpati, Jagannath, Heera Singh and Smt. Janka W/o Mihilal was undeniably homicidal in nature.As per post mortem i iport (Ex.P 9) of Narpati, the following ante mortem injuries were found on the body: Gun shot wound : (A) (in let). Lacerated wound 1/4" x 1/4" on left chest 2" below the nipple. (B) Internal injuries; Upon opening the body pleurae left side was found ruptured and full of blood. Left lung was found ruptured collapsed. (C) Pericardium was also found ruptured. (D) Heart - there was gun shot in let wound which was lacerated in nature 1/2" x 1/2" on the apron heart left ventricle of heart with hole on the septum and bullet was removed from the wall of the right Rt. ventricle. In the opinion of the doctor the cause of death was gun shot injury to the vital organs of the chest causing haemorrhage resulting into death. The injuries were ante-mortem in nature. The deceased must have died about 12 hours before the post-mortem. As per post-mortem report (Ex.P 10) of Jagannath, the following ante-mortem injuries were found on the body : Gun shot wounds : (a) In let : Lacerated wound 1/4" x 1/4" on the middle + Anterior - medial aspects left thigh. (b) Exit - Lacerated wound 8" x 3" on the upper ⅔ + postero - lateral aspect left thigh and causing laceration of the under lying and muscles and rupture of blood vessels and compound and commutated fracture of left femur bone. Inter nation (sic) examination : (a) Heart - Right and left chambers were found empty large vessels - Femoral vessels of left thigh were found ruptured. In the opinion of the doctor the cause of death was gun shot injuries to the left thigh and rupture of femoral vessels resulting into haemorrhage and death. As per post mortem report (Ex.P 11) of Heera Singh, the following ante-mortem injuries were found on the body : Injuries : (1) Abrasion 2 1/2" x 3/4" Transversally on lower ⅓rd and outer aspect left back. As per post mortem report (Ex.P 11) of Heera Singh, the following ante-mortem injuries were found on the body : Injuries : (1) Abrasion 2 1/2" x 3/4" Transversally on lower ⅓rd and outer aspect left back. Gun shot wounds : (a) In let : Lacerated wound 1/4" x 1/4" on the left Illiac fossa 2" above the lateral ⅓" left inguinal ligament. (b) Exit wound : Lacerated wound 1/2" x 1" on left back at lumbo sacral region.. Bones and Joints : Commuted fracture of lumbo sacral joint and portion of left side L. V and medial ⅓rd upper part of sacrum. Spinal cord : Missing at lumbo sacral region. Heart : Right and left chamber empty. Large intestines and descending column and signoid column ruptured at many places and faecal matter was coming out. Bladder : Ruptured. In the opinion of the doctor the cause of death was gun shot injuries to the vital organs of abdomen and spinal cord haemorrhage and death. All these injuries were sufficient to cause death in the ordinary course of nature and all were ante mortem. As per post-mortem report (Ex.P 12) of Smt. Janka W/o Mihilal, the following ante-mortem injuries were found on the body : Injuries : Gun shot wound. In let:- Lacerated wound 3/4" x 3/4" on the epigastric region at abdomen and 2 1/2" from Zypli sternum. Heart : right and left chambers empty. Abdomen : Peritoneum ruptured and abdomen cavity full of blood and one bullet was removed from the retro peritoneum space of right side lumbar region of abdomen and sealed. Large intestines:- Transverse colon ruptured and faecal matter coming out of it. Liver : was found ruptured. All these injuries were anti mortem in nature and were in the ordinary course of nature sufficient to cause death. In the opinion of doctor the cause of death was gun shot injuries to vital organs of abdomen causing haemorrhage and shock resulting in death. 8. We have also noticed the injuries sustained by injured Balbir, Ramswaroop, Mahaveer, Shanker, Smt. Baijanti, Sobaran Amar Singh and Ram Bharosi. Details of injuries are as under:- Injured Balbir vide injury report (Ex.P 14) received following injuries : (a) Bruise 1" x 1" on the upper post & lateral aspects. (L) shoulder. Simple Blunt. (b) Abrasion 2 1/2" x 1/4" on lateral ⅓rd and (L) supra clavicular region. Simple Blunt. Details of injuries are as under:- Injured Balbir vide injury report (Ex.P 14) received following injuries : (a) Bruise 1" x 1" on the upper post & lateral aspects. (L) shoulder. Simple Blunt. (b) Abrasion 2 1/2" x 1/4" on lateral ⅓rd and (L) supra clavicular region. Simple Blunt. (c) Bruise 3" x 1" vertically on middle & Antr. aspect (R) arm. Simple Blunt. (d) Bruise 1 1/2" x 1/4" vertically on the upper ⅓ Ant. aspect (R) shoulder. Simple blunt. (e) Swelling (R) middle, Ring & little finger. Adv. X-ray. All these injuries were simple and caused by blunt weapon. Duration about 18 hours. Injured Ramswaroop vide injury report (Ex.P 15) received following injuries : Gun shot injuries : A : In let:- Lacerated wound 4" x 3" x underlying muscles. Tendons & vessels lacerated on the proximal ⅓ and lateral aspect (L) foot below the lateral Malealus. B : Out Let:- Lacerated wound 6" x 3" on the mid ⅓ & medial aspect (L) toot and underline & muscles exposed and lacerated. Injured Mahaveer vide injury report (Ex.P 17) received following injuries (a) Lacerated wound 1" x 1/4" x bone deep obliquely on the scalp 3" from the (R) ear. (b) Lacerated wound 2" x 3/4" x bone deep on the scalp 3" from the medial end of (R) eye brow. (c) Contusion 6" x 1" vertically on medial aspect (L) scapular. (d) Contusion - 4" x 1 1/2" obliquely on middle of the left scapula. (e) Contusion 5" x 1" obliquely on upper ⅓ and medial aspect (R) Back. (f) Contusion 10" x 1 1/2" obliquely on the middle on the back. (g) Contusion 6" x 1 1/2" vertically on lower medial side (L) back. (h) Contusion 3" x 3/4" Transversely on lower ⅓ & post. aspect (R) leg. (i) Punctured wound : Over the middle of (R) costal margin caused by gun shot with radio opaque shadows present in abdomen x-ray. Injured Shankar vide injury report (Ex.P 23) received following injuries : (a) Abrasion ⅛" x ⅛" on the scalp of occipital region 3" from the (R) ear. (b) Punctured wounds scattered over the Antero lateral aspect lower ⅔ (R) chest. (c) Punctured wound on the lower ⅓ and outer aspect (R) back. (d) Punctured wound on lower ⅓ & medial aspect (R) forearm & hand. (e) Punctured wound on the Middle & Ant. (b) Punctured wounds scattered over the Antero lateral aspect lower ⅔ (R) chest. (c) Punctured wound on the lower ⅓ and outer aspect (R) back. (d) Punctured wound on lower ⅓ & medial aspect (R) forearm & hand. (e) Punctured wound on the Middle & Ant. Aspect (R) thigh. All injuries except (a) were by gun shot with radio opaque shadows present. Injured Smt. Baijanti vide injury report (Ex.P 26) received following injuries : (a) Multiple punctured wounds scattered over the lower ⅔ & posterio-medial aspect of (L) leg. (b) In let : Lacerated wound 1/4" x 1/4" on the upper 1/4 & antero-medial aspect (R) knee. (c) Out let:- Lacerated wound 1" x 3/4" on the lower ⅓ and Antero-medial aspect (R) thigh. All the injuries were by gun shot with radio opaque shadows in left leg. Injured Sobran vide injury report (Ex.P 29) received following injuries : (a) Swelling whole of the left forearm. (b) Lacerated wound 1 1/2" x 1/2" wound deep obliquely on upper ⅓rd and bentra medial aspect left forearm. (c) Abrasion 2" x 1/4" on the middle & dorso medial aspect (L) forearm. Gun shot wounds: A. In let:- Lacerated wound 1/4" x 1/4" on the upper ⅓ + Antero-medial aspect (L) thigh and 6" below the lateral ⅓ in left inguinal ligaments. B. Out let:- Lacerated wound 10" x 8" on the upper ⅔ & posterior aspect left thigh-c (with) under lying muscles lacerated and comp. Fracture of the underlying bone. Radio opaque shadows were present in ⅔rd femur. Injured Amar Singh vide injury report (Ex.P 32) received following injuries : (a) Lacerated wound ⅛" x ⅛" on the middle and antero medial aspect leg. (b) Lacerated wound 1/2" x 1/4" x muscle deep on the medial aspect (R) foot 2 1/2" below the (R) medial melealus. (c) Lacerated wound 1/2" x 1/4" x muscle deep on the middle and medial side of the (R) sole. All injuries were caused by gun shot with radio opaque shadows present. Injured Ram Bharosi vide injury report (Ex.P 13) received the following injuries : Lacerated wound 1" x 1/2" bone deep obliquely on the lower ⅓ and medial aspects left leg. 9. We have given our anxious consideration to the submissions advanced before us and carefully scrutinised the record. 10. Injured Ram Bharosi vide injury report (Ex.P 13) received the following injuries : Lacerated wound 1" x 1/2" bone deep obliquely on the lower ⅓ and medial aspects left leg. 9. We have given our anxious consideration to the submissions advanced before us and carefully scrutinised the record. 10. From the evidence adduced by the prosecution, it is revealed that the occurrence took place in the evening at 6.30 PM on 22.5.1981 and the written report was handed over at 11.00 PM to the police officer, CO, Badi who had reached at the place of occurrence village-Kotra who forwarded the same to the police station while he himself proceeded with the investigation. In the incident as many as four persons, namely Narpat S/o Mahaveer, Jagannath S/o Chiranjee, Heera Singh S/o Binder Gurjar and Smt. Janka W/o Mihilal, died due to gun shot injuries as deposed by Dr. Mohan Lal (PW 5) who conducted autopsy on the dead bodies on 23.5.1981. He even extracted bullets from the dead body of deceased Narpat and Smt. Janka. According to the deposition of Dr. Mohan Lal (PW 5), injured Ram Swaroop (PW 6), Mahaveer, Singh, Shankar, Smt. Baijanti W/o Roghan, Sobran Singh and Amar Singh were also found to have sustained gun shot injuries and radio opaque shadows were also found in the corresponding injuries of Mahaveer Singh, Smt. Baijanti, Sobran Singh, Arnar Singh (PW 7) and Shankar Singh. It is further revealed that the gun shot injuries sustained by the aforesaid injured were in the shape of multiple punctured wounds as well as in-let and out-let lacerated wounds. Apart from this, injured Ram Bharosi, Mahaveer, Amar Singh and Sobran were also found to have sustained injuries by blunt weapon. 11. The above sum-up of the injuries sustained by four deceased and eight injured corroborates the prosecution story of use of three fire arms including the one by the present appellant Ramji @ Ramji Lal who allegedly used 12-bore gun as per the testimony of eye witnesses Ram Bharosi (PW 3), Ram Swaroop (PW 6) and Amar Singh (PW 7) who were themselves injured and hence their presence is established and their testimony on the point of genesis of the prosecution case is found reliable. From their testimony, it is further established that this incident which occurred in the evening was sequel of an altercation that took place earlier in the day regarding place of installation of hand pump in the village by the State Government. It is further established that the accused appellants alongwith others, more than five in number, came armed and formed an unlawful assembly and assaulted the complainant party leaving behind four dead and eight injured in prosecution of common object. 12. The learned counsel for the appellants challenged the finding of conviction of the appellant for the offence u/s 302 read with 149 IPC on the ground that the six cartridge cases recovered at the place of occurrence, were found to be of 8 mm/.315 K.F. cartridge cases while the bullets extracted by doctor from the dead body of Narpat and Mst. Janka were also not found to be of regular pellets used in 12-bore cartridge and as such no corresponding gun shot injury from 12-bore gun could be attributed to the appellant. This aspect of the prosecution case has been examined by the learned trial court and the learned trial court was of the view that the appellant Ramji @ Ramji Lal was charge-sheeted for the offence u/s 302 IPC simplicitor for the murder of Narpat but in view of the fact that bullet found from his body could not be fired from 12-bore gun, no offence u/s 302 IPC simplicitor could be established against him but as per the evidence on record, the three accused armed with gun fired simultaneously and accused Hariya had `Pachfera' gun and empty cartridge cases of 8 mm/.315 K.F. recovered were found to have been fired from his gun and that deceased Heera Singh and Jagannath had bullet entry and exit wounds on their bodies corresponding to the fire arm used by him and as such the accused appellant could be held liable for the act of accused Hariya for causing their death in prosecution of common object with the help of section 149 IPC. We find that the above finding of the learned trial Judge does not suffer from any infirmity and the role played by accused Ramji @ Ramji Lal in the incident is further strengthened from the fact that the injured in this case with shot gun injuries were found with multiple punctured and lacerated wounds with radio opaque shadows indicating that the pellets discharged could be from 12-bore shot gun and thus, the ocular testimony of the injured eye witness stands corroborated on the point that accused Ramji @ Ramji Lal had used 12-bore gun as deposed by Ramswaroop (PW 6) and Amar Singh (PW 7) who themselves, sustained gun shot injury from the gun fired by Ramji @ Ramji Lal. 13. Therefore, we find no infirmity in the finding of the learned trial Judge on the point that the accused appellants had actively participated in the incident in prosecution of common object and were guilty for the offence under section 302 read with 149 IPC. 14. For these reasons, we dispose of the instant appeal in the following terms : (i) Since appellant Peetam has expired during pendency of appeal, his appeal stands abated. (ii) We find no merit in the appeal of appellant Ramji @ Ramji lal and it accordingly stands dismissed. Conviction and sentence of appellant Ramji @ Ramji Lal under sections 302/149 and 148 IPC are maintained. Appeal Dismissed - Appeal of P Abated because of his death. *******