JUDGMENT [Per : Hon'ble Prafulla C. Pant, J.] These three appeals, are directed against the judgment and order dated 20.03.1998, passed by learned Additional Sessions Judge, Roorkee, in Sessions Trial No. 45 of 1996 and Sessions Trial No. 44 of 1996. By the impugned judgment and order, the trial court has convicted appellants Pritam Singh, Pawan Singh, Charan Singh, Ved Pal Singh, Manga @ Mangey Ram and Naresh under Sections 148, 302 read with Section 149 and under Section 307 read with Section 149 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.), and each of the convicts has been sentenced to undergo rigorous imprisonment for a period of three years (under Section 148 of I.P.C.); rigorous imprisonment for a period of ten years and to pay fine of Rs. 5,000/-, in default of payment of which six months rigorous imprisonment (under Section 307 read with Section 149 of I.P.C.) and imprisonment for life and to pay fine of Rs. 10,000/-, in default of payment of which rigorous imprisonment for a period of one year (under Section 302 read with Section 149 of I.P.C.). 2. Heard learned counsel for the parties and perused the entire evidence on record. 3. The prosecution story in brief is that Jai Singh (P.W.3) and Bhanwar Singh purchased half bigha abadi land in Village Makdumpur from one Vijay Kumar, and after the sale deed was executed they occupied the land. On this, appellant Charan Singh instituted a civil suit against Jai Singh and Bhanwar Singh, but failed to get any interim order in his favour. On the day of incident i.e. 22.10.1995, P.W.3, Jai Singh, P.W.4, Biram Singh (injured), Isham Singh (deceased); P.W.5 Satish Kumar (injured) and P.W.6, Karan Singh (complainant) were raising constructions over the land purchased by Jai Singh and Bhanwar Singh. At about 04:00 P.M., accused/appellants namely Pritam Singh, Pawan Singh, armed with gun; accused/appellants Charan Singh and Ved Pal, armed with country made pistols; and accused/appellants Manga @ Mangey Ram and Naresh, armed with pistols, reached at the land in dispute and after hurling abuses at the aforesaid witnesses and the deceased, fired at them. Complainant Karan Singh and P.W.3 Jai Singh took shelter behind the wall under construction and could save them, but Isham Singh (deceased), P.W.4, Biram Singh and P.W.5 Satish Kumar received firearm injuries in the incident and got seriously injured. Complainant Karan Singh and P.W.3 Jai Singh took shelter behind the wall under construction and could save them, but Isham Singh (deceased), P.W.4, Biram Singh and P.W.5 Satish Kumar received firearm injuries in the incident and got seriously injured. P.W.2, Seth Pal also witnessed the incident. All the three injured were rushed to Roorkee hospital, and first information report (Ext. A-3) was lodged with police station Jhabreda, by Karan Singh at about 06:30 P.M., on the same day. A check report (Ext. A-4) of said first information report was prepared by P.W.7, Constable Jai Pal Singh, who made necessary entry in the general diary, extract of which is Ext. A-5. P.W.9, Sub Inspector A.S. Khan took up the investigation. He got the inquest report (Ext. A-12) prepared by Sub Inspector Data Ram on 23.10.1995, at 11:15 A.M., who further prepared sketch of the dead body (Ext. A-13), police form No. 13 (Ext. A-15), letter to the Chief Medical Officer requesting for postmortem examination, in form No. 33 (Ext. A-14). P.W.11 Constable Ram Bir along with Constable Chet Ram took the dead body for postmortem examination. P.W.8, Dr. B.K. Gairola conducted the postmortem examination on 23.10.1995, at 02:30 P.M., and prepared the autopsy report (Ext. A-10). The said Medical Officer took out the pellets from the dead body and prepared separate report (Ext. A-11). One empty cartridge which was found of .315 bore by Sub Inspector Data Ram from the place of incident, and memorandum Ext. A-17 was prepared. During the investigation, a country made pistol of .12 bore is said to have been recovered on 17.11.1995 from accused/appellant Naresh. A separate crime was registered in respect of said recovery (however, from the charge of offence punishable under Section 25 of the Arms Act, accused Naresh has been acquitted by the trial court). P.W.1, Dr. Ajay Aggarwal recorded incident on 22.10.1995, at about 06:40 P.M., when they were brought to the hospital regarding which the Medical Officer prepared injury reports Ext. A-1 and Ext. A-2. The Investigating Officer after completing the investigation submitted charge sheet (Ext. A-20) against all the six accused namely Pritam Singh, Pawan 'Singh, Charan Singh, Ved Pal Singh, Manga @ Mangey Ram and Naresh, relating to offences punishable under Section 147, 148, 149, 307 and 302 of I.P.C. 4. A-1 and Ext. A-2. The Investigating Officer after completing the investigation submitted charge sheet (Ext. A-20) against all the six accused namely Pritam Singh, Pawan 'Singh, Charan Singh, Ved Pal Singh, Manga @ Mangey Ram and Naresh, relating to offences punishable under Section 147, 148, 149, 307 and 302 of I.P.C. 4. The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of the Cr.P.C., committed the case to the court of Sessions, for trial. Learned trial court, after hearing the parties, framed charge against all the six accused namely Pritam Singh, Pawan Singh, Charan Singh, Ved Pal Singh, Manga @ Mangey Ram and Naresh, on 18.12.1996, relating to offences punishable under Section 148 of I.P.C.; under Section 302 read with Section 149 of I.P.C. and one punishable under Section 148 of I.P.C.; under Section 149 of I.P.C. All the accused (present appellants) pleaded not guilty and claimed to be tried. (As against accused Naresh charge of offence punishable under Section 25 of Arms Act was separately framed in respect of connected Sessions Trial No. 44 of 1996, which was also denied by said accused). On this, prosecution got examined P.W.1, Dr. Ajay Aggarwal (who examined the injuries on the person of injured namely Biram Singh and Satish Kumar); P.W.2, Seth Pal (eyewitness); P.W.3, Jai Singh (eyewitness); P.W.4 Biram Singh (injured/eyewitness); P.W.5, Satish Kumar (injured/eyewitness); P.W.6 Karan Singh (eyewitness and complainant); P.W.7, Constable Jaipal Singh (who prepared the check report (Ext. A-4) of the F.I.R. lodged at the police station Jhabreda and made necessary entry in the general diary, copy of extract of which is Ext. A-6); P.W.8, Dr. B.K. Gairola (who conducted the autopsy on dead body of deceased Isham Singh and prepared the report Ext.A-10); P.W.9, A.S. Khan (Investigating Officer); P.W.10, Sub Inspector Santosh Kumar (who investigated the crime relating to 25 Arms Act against accused Naresh); P.W.11, Constable Rambir Sharma (who took the dead body of the deceased in a sealed condition after the inquest report was prepared for the postmortem examination); P.W.12, Head Constable Dheeraj Pal Singh (witness who made entries in the general diary relating to information received from Saharanpur about the arrest of accused Pritam Singh); P.W.13, Jasbeer (witness of recovery of pistol from accused Naresh) and P.W.14, Sub Inspector Dalbir Singh (who obtained the sanction (Ext. A-24) from the District Magistrate to prosecute Naresh under Section 25 of Arms Act). The entire oral and documentary evidence were put to the accused under Section 313 of Cr.P.C. by the trial court, which they alleged to be false. However, no evidence in defence was adduced on behalf of the accused. The trial court, after hearing the parties, found that though the recovery of pistol of the accused Naresh was not proved and it is not proved that the recovered pistol was used in the crime, but as far as charge of offences punishable under Section 148 of I.P.C., under Section 302 read with Section 149 of I.P.C. and one under Section 307 read with Section 149 of I.P.C. are concerned, the same are found proved against all the six accused namely Pritam Singh, Pawan Singh, Charan Singh, Ved Pal Singh, Manga @ Mangey Ram and Naresh. They were accordingly convicted vide judgment and order dated 20th March 1996, passed in Sessions Trial No. 45 of 1996, and after hearing on quantum of sentence, the trial court sentenced each one of the accused to undergo rigorous imprisonment for a period of three years under Section 148 of I.P.C.; imprisonment for life and also to pay fine of Rs. 10,000/- under Section 302 read with Section 149 of I.P.C. and rigorous imprisonment for a period of ten years and to pay fine of Rs. 5,000/- under Section 307 read with Section 149 of I.P.C. In default of payment of fine in respect of offence punishable under Section 302 of I.P.C., the defaulter was directed to undergo rigorous imprisonment for further period of one year and on default of payment of fine in respect of offence punishable under Section 307 of I.P.C., the defaulter was directed to undergo rigorous imprisonment for a further period of six months. Aggrieved by said judgment and order dated 20th March 1996, passed by the trial court (Additional Sessions Judge, Roorkee), in Sessions Trial No. 45 of 1996, these appeals were preferred by the convicts before the Allahabad High Court, from where the same have been received by transfer to this Court under Section 35 of the U.P. Re-organization Act, 2000, for their disposal. 5. 5. According to the prosecution story all the six appellants armed with deadly weapons (firearms) fired at the Isham Singh (deceased) and injured Satish Kumar and Jai Singh, when they along with other eyewitnesses were raising a wall over the land purchased by Jai Singh and Bhanwar Singh. Before further discussion, it is therefore, pertinent to mention here the injuries received by the witnesses. According to P.W.1 Dr. Ajay Aggarwal, following injuries were found on the person of Satish Kumar, at 06.40 P.M., on 22.10.1995, in respect of which report Ext. A-1 was prepared by him :- i) Multiple gunshot wound in an area of 15cm x 8 cm on post aspect of lower part of left upper arm going upto left elbow (about 10 in number) varying in size from 2 mm x 2 mm to 2 mm x 5 mm; some rounded and some oval in shape, bleeding present. ii) About five gunshot wound in the left buttock varying in size from 0.2 cm x 0.2 cm to 2 cm x 0.3 cm in an area of 20 cm x 20 cm. iii) Multiple gunshot wound varying in size from 0.2 cm x 0.2 cm to 0.2 cm x 0.4 cm on whole of back (about 14 in number), bleeding present. In the opinion of the doctor all the injuries were caused by firearm and they were fresh. The same Medical Officer (P.W.1 Dr. Ajay Aggarwal) examined the injuries on the person of Biram Singh, at about 07:00 P.M. at the same Civil Hospital Roorkee, and prepared report Ext. A-2, which shows following injuries : i) Multiple gunshot wound over front of face and forehead varying in size from 2 mm x 2 mm to 2 mm x 3 mm with swelling right mandibular region 10 cm x 5 cm, bleeding present. ii) Gunshot wound about 05 in number over right side of neck varying in size from 2 mm x 2 mm to 2 mm x 3 mm in an area of 13 cm x 8 cm extending from just right to supra strand notch to right sub mandibular area. iii) Multiple gunshot wound varying in size 2 mm x 2 mm to 2 mm x 3 mm (about 05 in number) on anterior medial aspect of right upper arm in an area of about 18 cm x 10 cm. iii) Multiple gunshot wound varying in size 2 mm x 2 mm to 2 mm x 3 mm (about 05 in number) on anterior medial aspect of right upper arm in an area of about 18 cm x 10 cm. iv) Multiple gunshot wound varying in size 2 mm x 2 mm to 2 mm x 3 mm on right forearm on postaro medial aspect in an area of 2.5 cm x 15 cm. v) Gunshot wound 2 mm x 2 mm at base of right little finger on posterior aspect. vi) 2 gunshot wound 2 mm x 2 mm in an area of right lumber region (on front). vii) Lacerated wound 0.2 cm x ½ cm x muscle deep on right hypothander. viii) Abrasion 1 cm x 1 cm on the front of right ankle. In the opinion of the Medical officer injuries no. (i) to (vi) were caused by the firearm and were fresh. 6. Now, it is also relevant to mention here the ante mortem injuries found on the person of the deceased (Isham Singh) by Dr. B.K. Gairola (P.W.8), who prepared the autopsy report (Ext. A-10) after postmortem examination, at 02:30 P.M., on 23.10.1995. The same are being reproduced below : i) Two firearm wound of entry near to each other 0.7 cm x 0.5 cm average in size on the right side of neck (in front), 2 cm above inner end of right clavicle. ii) Four firearm wound of entry, in an area of 10 cm x 6 cm at the upper end of chest (in front) near the right shoulder of average size 0.5 cm x 0.5 cm. iii) Fourteen firearm wound of entry in an area of 9 cm x 6 cm of average size 0.5 cm x 0.5 cm in front and on the right side of the chest. iv) Firearm wound of entry 0.5 cm x 0.5 cm on right and upper side of abdomen 5 cm above umbilicus at 11 O'clock position. v) Four abrasions of average size ½ cm x ½ cm on the back of right wrist and in dorsum of right hand. vi) Abrasion ½ cm x ½ cm in front of upper part of chest, 4 cm above left nipple at 1 O'clock position. vii) Abrasion 0.5 cm x 0.5 cm on upper part of left shoulder. v) Four abrasions of average size ½ cm x ½ cm on the back of right wrist and in dorsum of right hand. vi) Abrasion ½ cm x ½ cm in front of upper part of chest, 4 cm above left nipple at 1 O'clock position. vii) Abrasion 0.5 cm x 0.5 cm on upper part of left shoulder. vii-a) Abrasion ½ cm x ½ cm in front of left arm 9 cm below left shoulder. viii) Firearm wound of entry 1 cm x ½ cm on the back of the left middle finger 1.5 cm from the base of nail. ix) Firearm wound of exit 1½ cm x 1 cm in front of left middle finger 2.5 cm from the distal end and corresponding to injury no. (viii). x) Abrasion 1 cm x 1 cm at the junction of left middle and ring fingers. xi) Abrasion ½ cm x 0.2 cm on the side of left ring finger at the top. xii) Abrasion 1 cm x ½ cm at the base of left little finger. On internal examination, the pleura was found lacerated, right lung was found lacerated; pellets were taken out from the internal parts of the body. In the opinion of the Medical Officer, who conducted the postmortem examination, the deceased had died due to shock and haemorrhage, as a result of ante mortem injuries. 7. The above medical evidence corroborates the statements of the injured eyewitnesses and the other eyewitnesses produced and got examined on behalf of the prosecution. Both P.W. 4 Biram Singh and P.W.5 Satish Kumar, the injured eyewitnesses, have stated on oath that on 22.10.1995, they along with other eyewitnesses and the deceased were engaged in raising a wall over the land purchased by Jai Singh and Bhanwar Singh, when at about 04:00 P.M., accused/appellants Pritam Singh, Pawan Singh, Charan Singh, Naresh, Ved Pal Singh and Manga @ Mangey Ram, armed with firearms came at the spot and indiscriminately fired at them. Both these witnesses have stated that they and Isham Singh received the firearm injuries. The witnesses further stated that Isham Singh died of the firearm injuries received by him in the incident. These two witnesses have further stated that the incident was seen by witnesses Seth Pal, Pratap Singh, Karan Singh and Jai Singh. Both these witnesses have stated that they and Isham Singh received the firearm injuries. The witnesses further stated that Isham Singh died of the firearm injuries received by him in the incident. These two witnesses have further stated that the incident was seen by witnesses Seth Pal, Pratap Singh, Karan Singh and Jai Singh. P.W.2, Seth Pal, who is an eyewitness, has corroborated the prosecution story as narrated by above mentioned injured eyewitnesses. 8. P.W.3 Jai Singh, narrating the prosecution story, has stated that he and his brother Bhanwar Singh purchased the land from one Vijay Kumar about 26-27 days before the date of incident. The accused challenging said sale instituted a suit in civil court, but they could not get any interim stay. The witness further states that on 22.10.1995, he along with Isham Singh (deceased), Biram Singh (injured), Satish Kumar (injured) and Karan Singh (complainant) were raising constructions over the land in suit, when at about 04:00 P.M., they were attacked by accused/appellants Pritam Singh, Pawan Singh, Charan Singh, Naresh, Ved Pal Singh and Manga @ Mangey Ram, who were armed with firearms. Statement of this witness gets corroboration, not only from the above mentioned injured witnesses, but also from the statements of P.W.2 Seth Pal and P.W.6, Karan Singh (complainant). P.W.6, Karan Singh, while narrating the prosecution story has stated that he and Jai Singh took shelter of the wall and could save their lives in the incident. This witness further states that he lodged the first information report (Ext. A-3), which he proved on record. The statement of all these witnesses of fact, are natural and trustworthy. 9. From the evidence adduced by aforementioned eyewitnesses and injured, which is corroborated from the medical evidence as well as the evidence collected by the Investigating Officer (except the recovery of pistol from Naresh as to which it was not found proved that the same was used in the crime), we are in agreement with the trial court that the prosecution has been successful in proving that the accused / appellants, after making unlawful assembly, armed with deadly weapons, in furtherance with common intention committed murder of Isham Singh and also committed attempt to murder of Biram Singh and Satish Kumar. P.W.9, A.S. Khan has stated after he started investigation of crime, he sent the Sub Inspector Data Ram to take the dead body of Isham Singh in his possession and to prepare the inquest report etc. The witness further stated that he went to the spot where the incident had taken place. The Investigating Officer further stated that he prepared the site plan and interrogated the witnesses. He recovered the empty cartridge from the place of incident. P.W.11, Constable Rambir Sharma has stated that Sub Inspector Data Ram prepared the inquest report of the dead body of Isham Singh along with other necessary papers. The witness further stated that the dead body was brought by him and Constable Chet Ram for postmortem examination to District Hospital, Haridwar. 10. On behalf of the defence it is argued that since, the litigation in respect of land in question was going on between the parties in civil court, therefore, even if it is found that the appellants have caused injuries to the injured and the deceased, the same has been done in private defence, as the appellants had a right of private defence in respect of the property which belonged to them. On examination of the record, we did not find any such defence plea taken before the trial court and nor any such suggestion given to any of the prosecution witnesses, nor anything relating to private defence is stated in the examination under Section 313 of Cr.P.C., by the accused. No doubt, under Section 97 of the I.P.C., every person has a right subject to restrictions contained in Section 99 to defend his body or body of another person or his property or the property of other person (against an act committed by someone which comes within the defence of theft, robbery, mischief or criminal trespass). And, Section 103 of I.P.C. provides that right of private defence of property extends to voluntarily causing death or any other harm to the wrongdoer but the same can be done against the act of robbery, house breaking by night, mischief by fire or theft, mischief or house trespass, where a reasonable apprehension has arisen of grievous hurt or death. There is nothing on the record to show that the accused/appellants were under apprehension of grievous hurt or death from injured or the deceased. There is nothing on the record to show that the accused/appellants were under apprehension of grievous hurt or death from injured or the deceased. In the circumstances, it is not a case of exercise of right of private by the accused/appellants. 11. Learned counsel for the appellants further argued that for exceeding the right of private defence the accused/appellants even if charge is found to have been proved they could only be convicted under Section 304 of I.P.C., as their act is covered under Exception II of Section 300 of I.P.C. Since, from the record it is not shown how the right of private defence has arisen to the accused/appellants, we are unable to accept the argument advanced on their behalf. 12. For the reasons as discussed above, after going through the evidence on record and hearing the parties, we do find any force in these appeals, and the same are liable to be dismissed. Accordingly, all the three appeals are dismissed. All the six accused/appellants are in jail. Let a copy of this judgment be sent to the Superintendent of Jail, concerned, where the accused/appellants are serving out the sentences, awarded against them.