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2014 DIGILAW 32 (ALL)

Sarnam Singh v. State of U. P.

2014-01-06

RAMESH SINHA

body2014
Ramesh Sinha,J. The aforesaid two criminal appeals have been preferred against the judgment and order dated 4.12.1981 passed by 4th Addl. Sessions Judge, Agra in Sessions Trial No.465 of 1978, hence the same are being decided by a common judgment by which the appellant Sarnam Singh has been convicted under Section 307 IPC read with Section 149 IPC for 10 years R.I and under Section 148 IPC to undergo two years R.I. and to pay fine of Rs.1,000/- and further convicting the appellant under Section 323 IPC readwith Section 149 IPC for a period of six months and to pay fine of Rs.500/- and further convicting the appellant under Section 452 IPC and sentencing him to undergo one year R.I. All the sentences shall run concurrently. The appellant Bhoop Singh, Badan Singh, Ram Kishore, Ramesh Chand, Phool Singh, Gopal Chand and Jeet Singh were also convicted and sentenced to undergo five years R.I. and under Section 307 IPC read with Section 149 IPC and to pay fine of Rs.5,000/- each and under Section 147 IPC one year R.I and under Section 323/149 IPC, six months R.I. And fine of Rs.5,000/- each and under Section 452 IPC for one year R.I. All the sentences shall run concurrently. 2. Heard Sri K.S. Chahar, learned counsel for the appellant Sarnam Singh, Sri R.B. Sahai and Sri Ajay Srivastava, learned counsel for the appellants Phool Singh, Gopal Chand, Jeet Singh and Sri Nikhil Chaturvedi, learned AGA for the State and perused the record. 3. As per office report dated 11.4.2013, it has has been stated that the C.J.M. vide letter dated 23.3.2013 has reported that the appellants Bhoop Singh, Badan Singh, Ram Kishore and Ramesh Chand are reported to have died during the pendency of the appeal and hence in view of the said report of C.J.M. their appeals stands abated. 4. The interse relation of the accused and the complainant side as it transpires from the record is that the accused Jeet Singh and Phool Singh are real brothers. Accused Ram Kishore is the cousin brother of accused Jeet Singh. Accused Gopi Chand and Ramesh are the sons of Chiranji and are real brothers. Accused Badan Singh is the uncle of accused Ramesh and Gopi Chand. Accused Sarnam Singh is the nephew of accused Bhoop Singh. They are all Jats by caste and are residents of village Bhilawti, P.S. Achhnera, district Agra. 5. Accused Gopi Chand and Ramesh are the sons of Chiranji and are real brothers. Accused Badan Singh is the uncle of accused Ramesh and Gopi Chand. Accused Sarnam Singh is the nephew of accused Bhoop Singh. They are all Jats by caste and are residents of village Bhilawti, P.S. Achhnera, district Agra. 5. The complainant Mev Singh, P.W.3 and Brijendra Singh, P.W.1 are real brothers. They are the sons of Samunder Singh injured and are grand-sons of injured Daroli Singh. The injured Smt. Vidya Devi is the aunt of the complainant. Injured Pitam Singh is the younger brother of the complainant injured Man Singh is the cousin brother of the complainant and Smt. Kalawati injured is the mother of the complainant. They are also Jat by caste and are residents of the same village Bhilawati. 6. The prosecution claimed that the accused persons bore enmity with the complainant and his family members, inasmuch as that accused Ram Kishore had filed a case regarding the demolition of water channel against the father and the grand father of the complainant. The family members of the complainant fought a case regarding the boundary dispute of the plot against accused Bhoop Singh. The accused persons constituted rival group in the village against the complainant and his family members. 7. It was alleged that on 9.4.1977 at 6 p.m. The complainant, his brother Brijendra Singh, P.W.1, father Samunder Singh, brother Pitam Singh and cousin brother Man Singh were all taking their meals in the verandah of the house of the complainant situated in village Bhilawati. The complainant's grand-father Daroli Singh was sitting and chit-chating with his sons and grand-sons. The complainant's mother Smt. Kelawati and aunt Smt. Vidya Devi were serving meals to the complainant, his father and brothers. It was alleged that accused Sarnam Singh armed with a gun and accused Bhoop Singh, Badan Singh, Gopi Singh Ramesh, Jeet Singh, Phool Singh and Ram Kishore armed with lathis came into the house of the complainant and abused the complainant and his family members. The complainant and his family members asked the accused persons to refrain from abusing them. Thereupon accused Bhoop Singh Badan Singh, Gopi Chand, Ramesh, Jeet Singh, Phool Singh and Ram Kishore wielded lathis and caused injuries to Mev Singh, P.W.3 and Smt. Kalawati, when these accused persons started wielding lathis, the complainant and his family members ran hither and tither. The complainant and his family members asked the accused persons to refrain from abusing them. Thereupon accused Bhoop Singh Badan Singh, Gopi Chand, Ramesh, Jeet Singh, Phool Singh and Ram Kishore wielded lathis and caused injuries to Mev Singh, P.W.3 and Smt. Kalawati, when these accused persons started wielding lathis, the complainant and his family members ran hither and tither. Thereupon accused Sarnam Singh opened fire by means of his gun and caused injuries to Smt. Vidya Devi, Pitam Singh, Man Singh, Daroli Singh, Samunder Singh and Brijendra Singh. When all these persons sustained gun shot injuries, the complainant Mev Singh went from behind the hut from where the accused Sarnam Singh was firing and assaulted accused Sarnam Singh was firing and assaulted accused Sarnam Singh by means of lathi with a view to save the life of his family members. This occurrence was witnessed by Manik Chand, P.W.2, Ratan Lal, Lajja Ram, Lachhi and Mawasi who are all neighbours of the complainant. The accused persons thereafter went away. 8. The written report Ex.Ka.1 about the occurrence of the case was lodge by Mev Singh, P.W.3, at P.S. Achhnera on 9.4.1977 at about 11 P.M., P.S. Achhnera lies at a distance of about 5 miles from the scene of the occurrence. 9. S.I. On Prakash, P.W.7 who was then working as sub-inspector of police at P.S. Achhnera immediately took up the investigation of the case in his own hand. He recorded the statement of the clerk constable Chandra Pal Singh who prepared the chick report and the G.D. report and recorded the statement of the complainant Mev Singh. He arrested accused Sarnam Singh who had come to the police station to lodge a report about his own version of the incident. S.I. Om Prakash thereafter reached the scene of the occurrence. There he found the injured of this case namely Daroli Singh, Samunder Singh, Vidya Devi, Brijendra Singh, Man Singh, Pitam Singh and Smt. Kalawati. He sent all these injured persons in the Govt. Jeep for medical examination to Achhnera dispensary. S.I. Om Prakash carried out a detailed inspection of the scene of the occurrence on the next day in the morning. He recovered two ticklies, one cartridge and one bullet in the court-yard of the complainant and prepared the recovery memo-Ex. Ka. 11 about the same. Jeep for medical examination to Achhnera dispensary. S.I. Om Prakash carried out a detailed inspection of the scene of the occurrence on the next day in the morning. He recovered two ticklies, one cartridge and one bullet in the court-yard of the complainant and prepared the recovery memo-Ex. Ka. 11 about the same. S.I. Om Prakash conducted a search of the house of the accused Sarnam Singh but nothing incriminating was found by him there. He accordingly prepared the recovery memo Ex.Ka.12. He recorded the statements of Brijendra Singh, Samunder Singh, Smt. Vidya Devi, Smt. Kalawati, Sobaran Singh, Balbir Singh, Man Singh and Daroli Singh on 15.4.77. S.I. Om Prakash took blood stained clothes of the injured in his possession and prepared the recovery memo Ex.Ka.13 about the same. He prepared the site-plan Ex.Ka.14 regarding the scene of the occurrence on 17.4.1977 at the instance of Daroli Singh. S.I. Om Prakash recovered blood stained and simple earth from the kotha of the complainant on 17.4.1977 and prepared the recovery memo Ex.Ka.15 about the same. He also took a thali bearing gun shot marks into his possession from the house of the complainant and prepared the recovery memo Ex.K.a16 about the same. S.I. Om Prakash seized the gun of accused Sarnam Singh from the shop of M/s Chunni Lal & Sons, Arms Dealer at Agra, on 21.4.1977 and prepared the recovery memo Ex.Ka.17 about the same. He was thereafter transferred to Control Room, Agra and subsequent investigation into the matte was conducted by S.I. Milap Singh Yadav, P.W.8. 10. S.I. Milap Singh Yadav recorded the statement of P.W.2 Manik Chand on 23.7.1977 and submitted the charge sheet Ex.Ka.18 against the accused persons on 14.8.1977. 11. Dr. N.B. Saxena P.W.4, the then Medical Officer of the District Hospital, Agra had medically examined Smt. Kalawati, Samunder Singh, Daroli Singh, Man Singh and Pitam Singh on 10.4.1977 between 8.30 to 9.30 a.m. and found thte following injuries on their person:- Injuries of Kalawati (Ex.Ka.2) 1. Traumatic swelling in an area of 8" x around the right hand forearm lower half. Kept under observation advised X-Ray. 2. Contusion 3-1/2" x 1" on the top of right shoulder with swelling in an area of 5" x 3 ". It was kept under observation and X-Ray was advised. Both the injuries were caused by blunt weapon. Duration was about half day. Injuries of Samunder Singh (Ex.Ka.3) 1. Kept under observation advised X-Ray. 2. Contusion 3-1/2" x 1" on the top of right shoulder with swelling in an area of 5" x 3 ". It was kept under observation and X-Ray was advised. Both the injuries were caused by blunt weapon. Duration was about half day. Injuries of Samunder Singh (Ex.Ka.3) 1. Gun shot wound 1/10 x 1/10" depth uncertain on the back of the left ear part with traumatic swelling in an area of 2-1/2" x 1-1/2" on the left ear extending upto the angle of the left mandible margins inverted. 2. Three gun shot wound of entry in an area of 9" x 3-1/2" on the back and upper part of the chest. Two wounds on the left scapular region and one of the right scapular region. Each measuring 1/10" x 1/10"x skin deep. Margins ecchymosed. Blackening and tatooing not present. Injuries were caused by fire-arm and X-Ray was advised. Duration was half day old. Injuries of Daroli Singh (Ex.Ka.4) 1. Gun shot wound of entry 1/10" x 1/10" depth uncertain on the front and upper part of the nose. Margins inverted and ecchymosed. Blackening and tatooing not present. 2. Gun shot wound of entry 1/10" x 1/10" x depth uncertain on the inner aspect and front of the right arm upper part. Margins were inverted and ecchymosed. Scorching and tatooing was not present. Both the injuries were kept under observation and x-ray was advised. They were caused by fire-arm and duration was half day. Injuries of Man Singh (Ex.Ka.5) 1. Gun shot wound of entry 1/10" x 1/10" x skin deep on the forehead in mid line 1" above the bridge of nose. 2. Three gun shot wounds of entry in an area of 2" x ½ " on the front and left side of the neck, each measuring 1/10" x 1/10" x depth uncertain. 3. Gun shot wound of entry 1/10" x 1/10" x skin deep on the front of the chest in mid line. 4. Gun shot wound of entry 1/10" x 1/10 x skin deep on the front of the abdomen 1" below the umblicus. 5. Gun shot wound of entry 1/10" x 1/10" x muscle deep on the outer aspect and middle part of the left forearm. All the injuries were caused by fire-arm and duration was about half day. Injuries of Pitam Singh (Ex.Ka.6) 1. 5. Gun shot wound of entry 1/10" x 1/10" x muscle deep on the outer aspect and middle part of the left forearm. All the injuries were caused by fire-arm and duration was about half day. Injuries of Pitam Singh (Ex.Ka.6) 1. Gun shot wound of entry 1/10" x 1/10" x skin deep on the left side of the skull 3" above the left ear. 2. Gun shot wound of entry 1/10" x 1/10" x skin deep on the outer end of the left eye brow. 3. Three gun shot wounds of entry in an area of 1½" x 1" on the back and left side of the neck, each measuring 1/10" x 1/10" x depth uncertain. 4. Four gun shot wounds of entry in an area of 5½ x 2" on the back of the left shoulder and arm, each measuring 1/10" x 1/10" x skin deep. 5. Gun shot wound of entry 1/10" x 1/10" x skin deep on the back and outer aspect of the left side chest lower part. 6. Gun shot wound of entry 1/10" x 1/10" x depth uncertain on the front of the right side abdomen, 1" away from the umblicus. 7. Three gun shot wounds of entry in an area of 3" x 1" on the back of left hand and two in the back and base of the left index finger, each measuring 1/10" x 1/10" x skin deep. Injuries nos. 3 and 6 were kept under observation. Advised x-ray. They were caused by fire-arm and duration was half day. Dr. U.C. Vaish P.W.5 the then Medical Officer of the District Hospital, Agra, had medically examined Smt. Vidya Devi and Brijendra Singh on 10.4.1977 at 7.10 a.m. and found the following injuries on their person:- Injuries of Smt. Vidya Devi (Ex. Ka.7) 1. Lacerated wound 1/2" x ¼" on the right side of front of abdomen with blackening of skin around the round of about 2/10" diameter, 3½" below and lateral to umblicus. 2. Lacerated wound 1/2" x 2/10" on the right side of front of abdomen with blackening around the wound about 1/10" diameter 2½" lateral to injury no.1. 3. Lacerated wound 1/2" x 1/2" on the upper and front of right thigh, muscle deep, 5-1/4 " below and medial to right anterior superior iliac spine. 4. 2. Lacerated wound 1/2" x 2/10" on the right side of front of abdomen with blackening around the wound about 1/10" diameter 2½" lateral to injury no.1. 3. Lacerated wound 1/2" x 1/2" on the upper and front of right thigh, muscle deep, 5-1/4 " below and medial to right anterior superior iliac spine. 4. Lacerated wound ¼" x 1/10" x muscle deep on the upper and medical part of right thigh, 4" supero-medial to injury no.3. 5. Lacerated wound ½ " x 2/10" x muscle deep on the medical aspect and middle of right fore-arm. 6. Lacerated wound 1/4" x 3/10" x muscle deep on the lateral aspect of middle of right fore-arm. Injuries no.1 and 2 were kept under observation. Rest were simple in nature. They were caused by pellets and duration was about half old. Injuries of Brijendra Singh (Ex.Ka.8) 1. Gun shot wound of entry on left side of forehead 1/10" x 1/10", 1½" above and medial to lateral end of left eye-brow. 2. Gun shot wound of entry on left side of forehead 1/10" x 1/10", 1½" below the lateral end of left eye-brow. 3. Gun shot wound of entry on left side of forehead 1/10" x 1/10", 1" below injury no.2. 4. Gun shot wound of entry on on lower part of left side of chin 1/10" x 1/10", 2" and medial to left angle of mouth. 5. Gun shot wound of entry upper part of neck on right side 1/10" x 1/10" 1 3/4" below and right to injury no.4. 6. Gun shot wound of entry on front of right side chest 1/10" x 1/10", 4" above and lateral to right nipple. 7. Gun shot wound of entry on front of right side chest 1/10" x 1/10", 1 3/4" below and medial to injury no.6. 8. Gun shot wound of entry on front of right side chest 1/10" x 1/10", 2½" below and medial to injury no.7. 9. Gun shot wound of entry on front of right side chest 1/10" x 1/10", 1½" above and medial to injury no.8. 10. Gun shot wound of entry on front of right side chest 1/10" x 1/10", 2½" below and medial to nipple. 11. Gun shot wound of entry on right side abdomen 3/10" x 1/10", 3 ½" lateral to umblicus. 12. 10. Gun shot wound of entry on front of right side chest 1/10" x 1/10", 2½" below and medial to nipple. 11. Gun shot wound of entry on right side abdomen 3/10" x 1/10", 3 ½" lateral to umblicus. 12. Gun shot wound of entry on front of middle phalunx of index finger of right hand with swelling of right index finger. Injury no.12 was kept under observation. Rest of the injuries were simple and were caused by fire-arm. Duration was about half day old. Dr. S.K. Srivastava P.W.6 who was working as Medical Officer of P.H.C. Achhnera had examined Mev Singh on 10.4.1977 at 9 a.m. and found the following injuries on h is person:- Injuries of Mev Singh (Ex. Ka.9) 1. Swelling over the left thumb. 2. Lacerated wound 1 cm. X ¼ cm. on left index finger, 1 cm. Below the tip of finger. Injury no.2 was caused by blunt weapon. The injuries were simple and duration was within 20 hours. 12. The accused persons were committed to stand trial before the court of sessions by Sri K.K. Yadav the then Judicial Magistrate, Agra vide his order dated 24.5.1978. 13. Charges under Section 148/307/149, 323/149 and 452 IPC were framed against accused Sarnam Singh. Accused Bhoop Singh, Badan Singh, Ram Kishore, Ramesh Chand, Phool Singh, Gopi Chand and Jeet Singh were charged u/s 147/307/149/323/149 and 452 IPC. The accused persons pleaded not guilty and claimed to be tried. 14. Accused Sarnam Singh pleaded that on the date of the occurrence at about 6 p.m. in the evening, injured Samunder Singh grazed his cattle into the field of the accused. Accused Sarnam Singh pleaded that while he was taking out the cattle for lodging into the cattle pound and was passing from near the house of the complainant, the complainant's father Samunder Singh and his brother surrounded him and assaulted him by means of lathis. Accused Sarnam Singh pleaded that while he was taking out the cattle for lodging into the cattle-pound and was passing from near the house of the complainant, the complainant's father Samunder Singh and his brother surrounded him and assaulted him by means of lathis. Accused Sarnam Singh stated that he became unconscious. Accused Sarnam Singh pleaded that while he was taking out the cattle for lodging into the cattle-pound and was passing from near the house of the complainant, the complainant's father Samunder Singh and his brother surrounded him and assaulted him by means of lathis. Accused Sarnam Singh stated that he became unconscious. He stated to have gone to Police Station Achhnera to lodge a report about the assault made upon him by the complainant's father and brothers, he was arrested by the police there. Accused Sarnam Singh pleaded that the complainant has fabricated the present case as false with a view to escape from liability of causing hurt to him. 15. Accused Bhoop Singh admitted that accused Sarnam Singh was the son of his brother-in-law. He pleaded that the complainant Mev Singh, his brothers Brijendra Singh, Man Singh, Pitam Singh, Rajendra Singh and Balbir Singh, father Samunder Singh, uncle Sobaran Singh and grand-father Daroli Singh assaulted Sarnam Singh by means of lathis. Accused Bhoop Singh stated that he asked the complainant and his family members to refrain from assaulting Sarnam Singh but when these persons made advances towards him, he felt that they would kill him as also Sarnam Singh. He thereafter brought his gun and fired by means of the same for saving the life of Sarnam Singh and himself. 16. Accused Badan Singh, Ram Kishore, Ramesh, Phool Singh, Gopi Chand and Jeet Singh have all denied their participation in the occurrence in question and pleaded that they have been falsely implicated in this case due to enmity. 17. The accused persons did not adduce any oral evidence in their defence. They filed the following papers: (1) Ex. Kha.1 is the certified copy of the injury report of Sarnam Singh filed in the cross case, S.T. No.786/79 State Vs. Samunder Singh and others u/s 307 IPC. This injury report reveals that accused Sarnam Singh was medically examined by the Medical Officer Incharge, P.H.C. Achhnera on 10.4.77 at 9.45 a.m. and the following injuries were found on his person:- 1. Lacerated wound 4 cm. X ½ cm., 11 cm. from right eye brow towards right side of head. 2. Lacerated wound 3 ½ cm. X ½ cm., 2 ½ cm, 2 ½ cm. from injury no.1 on the left side of scalp. 3. Lacerated wound 5 ½ cm. X ½ cm., 1 cm. From injury no.2 towards left scalp. 4. Lacerated wound 4 cm. X ½ cm., 11 cm. from right eye brow towards right side of head. 2. Lacerated wound 3 ½ cm. X ½ cm., 2 ½ cm, 2 ½ cm. from injury no.1 on the left side of scalp. 3. Lacerated wound 5 ½ cm. X ½ cm., 1 cm. From injury no.2 towards left scalp. 4. Lacerated wound 2 cm. X ½ cm., 9 cm., from right. 5. Lacerated wound 1 ½ cm. X ½ cm. Near the injury no.4. 6. Red contusion 9 cm. X 2 ½ cm. Over right shoulder back. 7. Red contusion 5 cm. X 2 ½ Cm., below the injury no.6 on right shoulder. 8. Red contusion 16 cm. X 2 ½ cm., 6 cm. Below the left scapular region on left side of the back. 9. Red contusion 6 cm. X 1 cm. With swelling below the left elbow joint. 10. Traumatic swelling over the left palm. 11. Traumatic swelling over right palm. 12. Lacerated wound 2 cm. X 3 cm. Over right little finger. 2. Ex. Kha. 2 is the certified copy of the X-Ray report in respect of the injuries of Sarnam Singh which shows that on x-ray examination fracture of sheft of 4th metacarpal on left wrist joint was found. 3. Ex. Kha. 3 is the original sale-deed executed by accused Bhoop Singh in favour of Sarnam Singh. It shows that accused Bhoop Singh had sold away his plot no.77 measuring 8 bighas, 19 biswas of village Bhilawti to Sarnam Singh for Rs.26000/- on 29.6.1976. 4. Ex.Kha.4 is extract from khatauni showing the name of Sarnam Singh as occupant of plat no.368 of village Bhilawti which shows that sugarcane crop was raised in 1385 Fasli. 5. Ex. Kha.5 is the copy of the judgment of the court of VII Addl. Munsif/Magistrate Agra in Crl. Case No.2/75 u/s 427/352 IPC Jeet Singh Vs. Ram Singh and others. Accused Seek to prove by this judgment that accused Jeet Singh and Bhoop Singh belonged to the rival group. They, therefore, could not have joined haned hands in the occurrence of this case. 6. Ex. Kha.6 is the copy of the judgment of the consolidation court in Revision no.1489 u/s 48 of Consolidation of Holdings Act. 7. Ex. Accused Seek to prove by this judgment that accused Jeet Singh and Bhoop Singh belonged to the rival group. They, therefore, could not have joined haned hands in the occurrence of this case. 6. Ex. Kha.6 is the copy of the judgment of the consolidation court in Revision no.1489 u/s 48 of Consolidation of Holdings Act. 7. Ex. Kha.7 is the copy of the police report dated 13.6.73 whereby Samunder Singh, his brother Sobaran Singh and sons Brijendra Singh, Balbir Singh and Mahavir were challaned u/s 107/117 Cr.P.C. This report shows that the S.I. found the complainant's father, uncle and brothers abusing Jeet Singh, Ram Kishore and Phool Singh who were creating apprehension of breach of peace. 8. Ex. Kha.8 is the copy of the FIR lodged by Jeet Singh against Mahavir Singh, brother of the complainant. 9. Ex. Kha.9 is the voters list. Accused persons seek to prove by means of this voter list that the complainant and his uncle were living in separate houses at the time of the occurrence. 18. The prosecution in support of its case has examined 8 witnesses and filed 20 documents and 5 material exhibits. The witnesses examined are as follows:- 19. P.W.3 Mev Singh is the complainant and the injured eye-witness of the occurrence who has unfolded the prosecution story as narrated above. 20. P.W.1 Brijendra Singh is the brother of the complainant who has fully supported the case of the prosecution as stated above. 21. P.W.2. Manik Chand is the neighbour of the complainant and is an independent witness of the occurrence who has fully supported the case of the prosecution. 22. P.W.4. Dr. N.B. Saxena, P.W.5 Dr. U.C. Vaish and P.W.6 Dr. S.K. Srivastava are the Medical Officers who had examined the injured and found injuries on their person as noted above. 23. P.W.7 S.I. Om Prakash Sharma and P.W.8 S.I. Milap Singh Yadav are the Investigating Officers of the case. 24. The documents filed in the case consists of the FIR injury reports, chick report, recovery memos, G.D. Report, site-plan and charge sheet. They are Exs. Ka. 1 to ka. 20. 25. Blood stained shirt, Baniyan, Dhoti, Patti-coat and Thali were filed as material Exts. I to V. 26. 24. The documents filed in the case consists of the FIR injury reports, chick report, recovery memos, G.D. Report, site-plan and charge sheet. They are Exs. Ka. 1 to ka. 20. 25. Blood stained shirt, Baniyan, Dhoti, Patti-coat and Thali were filed as material Exts. I to V. 26. The prosecution relied upon the direct evidence of three witnesses of fact namely, Brijendra Singh P.W.1, Mev Singh P.W.3 and Manik Chand P.W.2, P.W.1 Brijendra Singh and P.W.3 Mev Singh are real brother. They are injured eye-witnesses of the occurrence. Manik Chand is a close neighbour of the complainant whose house lies towards north of the house of the complainant. The case of the prosecution is that occurrence of this case took place inside the house of the complainant. Sri Manik Chand P.W.2 being a close neighbour had been residing just towards the north of the house of the complainant, therefore, a natural and probable witness of the occurrence. 27. The occular evidence of the aforesaid three witness of fact is quite clear and consistent on the point that on the date of occurrence viz 9.4.77 at about 6 p.m all the 8 accused persons facing trial before this court namely Sarnam Singh, Gopi Chand, Bhoop Singh, Phool Singh, Ram Kishore, Ramesh, Badan Singh and Jeet Singh came in a group over the house of the complainant where the complainant, his brothers, father and uncle were taking meals and grand-father Daroli Singh was chatting where they stated that accused Sarnam Singh was armed with gun and other persons were armed with lathis. The complainant and his family members tried to run away and thereupon the accused Sarnam Singh opened fire by means of his gun and fired 6-7 shots and caused gun shot injuries to Brijendra Singh P.W.1, Smt. Vidya Devi, who is the aunt of the complainant, Pitam Singh, Man Singh who are brothers of the complainant. Daroli Singh who is grand-father of the complainant. Mev Singh and Smt. Kalawati sustained lathi blows at the hands of the accused persons. The fact that injuries by means of fire-arm like gun could be caused to Brijendra Singh, Smt. Vidya Devi, Pitam Singh, Man Singh, Daroli Singh and Samunder Singh is fully proved by the medical evidence of Dr. Daroli Singh who is grand-father of the complainant. Mev Singh and Smt. Kalawati sustained lathi blows at the hands of the accused persons. The fact that injuries by means of fire-arm like gun could be caused to Brijendra Singh, Smt. Vidya Devi, Pitam Singh, Man Singh, Daroli Singh and Samunder Singh is fully proved by the medical evidence of Dr. N.B. Saxena who had medically examined Samunder Singh, Daroli Singh, Man Singh and Pitam Singh on 10.4.77 at District Hospital Agra, and found as many as four gun-shot injuries on the person of Samunder Singh two gun shot wounds on the person of Daroli Singh, 7 gun shot wounds on the person of Man Singh and 10 gun shot wounds on the person of Pitam Singh. Similarly, Dr. U.C. Vaish found as many as 6 lacerated wounds on the person of Smt. Vidya Devi and 12 gun shot injuries on the person of Brijendra Singh. The circumstances that on the next day of occurrence just after about 12-13 hours on medical examination, gun shot injuries on the person of six injured persons were found by the medical officer fully go to prove that these injured persons should have sustained these injuries on the date and time of the occurrence of this case. 28. Dr. S.K. Srivastava P.W.6 had medically examined the complainant Mev Singh on 10.4.1977 at 9 a.m and he found swelling and a lacerated wound over the person of the complainant. Dr. N.B. Saxena had also examined Smt. Kalawati, mother of the complainant and found traumatic swelling and a contusion over her person. The injuries of the complainant Mev Singh and his mother Smt. Kalawati could have obviously been caused by means of blunt weapon like lathi. The case is that the injured Brijendra Singh, Pitam Singh, Man Singh and Samunder Singh were taking meals and Smt. Kalawati and Smt. Vidya Devi were serving meals. Daroli Singh was sitting by the side of Samunder Singh etc. and was taking with his sons and grand-sons. The case is that the injured Brijendra Singh, Pitam Singh, Man Singh and Samunder Singh were taking meals and Smt. Kalawati and Smt. Vidya Devi were serving meals. Daroli Singh was sitting by the side of Samunder Singh etc. and was taking with his sons and grand-sons. The circumstances that injuries caused by means of gun were found on the persons of as many as six persons and that injuries caused by means of blunt weapon were found on the person of two persons by the medical officer at the time of examination of the injured, which took place just after 12 hours of the occurrence, fully go to prove that all these injured persons had sustained injuries found on their persons on the date and time of the occurrence of this case. It would thus be seen that the occular evidence of three witnesses of fact that gun shot injuries to Brijendra Singh, Smt. Vidya Devi, Pitam Singh, Man Singh, Daroli Singh and Samunder Singh were caused because of the gun shots fired by accused Sarnam Singh and that injuries by means of lathis were caused to Smt. Kalawati and Mev Singh by other good persons in quite consistent with the medical evidence on record. 29. Brijendra Singh, P.W.1 has stated that the accused persons had a well founded motive for forming an unlawful assembly for causing hurt to him and his family members and in prosecution of the common object of the said unlawful assembly they did cause hurt. At the time of occurrence of this case, he was fighting a case regarding the water channel with accused Ram Kishore and fought a case regarding the demarcation of the boundary of plots against Bhoop Singh who was the Phoopha of accused Sarnam Singh. Accused Sarnam Singh was responsible for indiscriminate firing and causing gun shot injuries to the persons named above. The statement of Brijendra Singh is quite clear on the point that all the accused persons were Jat by caste and that they belonged to one and the same family and were close associates. All the accused persons may not be close relations, but the fact remains that they all belonged to one sect and constituted rival group in the village against the complainant and his brothers. All the accused persons may not be close relations, but the fact remains that they all belonged to one sect and constituted rival group in the village against the complainant and his brothers. It is therefore, probable for to believe that the complainant and his family members on the one hand and thet accused persons on the other hand constituted two rival groups in the village and each one of them was out to show down the other. 30. The accused persons have themselves filed a copy of police challani report dated 23.6.1973 Ex. Kha. 7 which goes to show that proceeding u/s 107/117 Cr.P.C were taken up by the police against the family members of the complainant on one hand and accused Jeet Singh, Ram Kishore, Phool Singh and others on the other hand. The circumstances that as back as in the year 1973 the police had to challan the complainant and some of the accused persons u/s 107/117 Cr.P.C. Fully go to prove that the relations of the family members of the complainant on one hand and the accused persons on the other hand were strained since then. The own case of accused Sarnam Singh is that he was called by accused Bhoop Singh for his aid and assistance and for looking after his cultivation by accused Bhoop Singh as he had no issue. Accused Sarnam Singh has himself filed the sale-deed Ex. Kha.3 executed in his favour by Bhoop Singh on 29.6.1976 in respect of plot no.77 measuring 8 bighas, 19 biswas and 4 biswansi situated in village Bhilawti. The accused Sarnam Singh is an ex-military personnel and the circumstances show that he was in possession of a substantial property which was formerly owner by Bhoop Singh and further that he was particularly called by Bhoop Singh to reside in village Bhilawti and to look after his property. 31. Sri K.S. Chahar, learned counsel for the appellant Sarnam Singh argued that the defence given by accused Sarnam Singh in his statement recorded u/s 313 Cr.P.C. appears to be more reasonable as he has stated that the cattles of the complainant had destroyed his field and he was taking the cattle of the complainant to the cattle pound and was passing in-front of the house of the complainant and his father and sons assaulted him due to which he received injuries and his meta-carpol bone was fractured. He submitted that when he went to lodge an FIR of the incident against the complainant and his family members at the police station, he was sent to jail on the FIR lodged by the complainant in order to escape from criminal liability. A cross case was also registered subsequently from the side of the accused against the complainant and his father and sons in which charge sheet was submitted against them and they were also put to trial though the same ended in acquittal. 32. Learned counsel for the appellant Sri K.S. Chahar further argued that if the prosecution story is believed for the sake of the argument that the appellant Sarnam Singh had fired at the six injured persons who received fire-arm injuries from his gun, then from the perusal of the medical examination report of the said injured persons, namely Samundra Singh, Daroli Singh, Man Singh, Peetam Singh, Smt. Vidhya Devi, Brijendra Singh shows that the injuries received by them are found to be simple in nature and they were not sufficient in the ordinary course of nature to cause death of the injured persons. There is no X-Ray report or supplementary report of any of the six injured persons who received fire-arm injuries which may corroborate that there was any internal damage caused to the said injured persons. The shots fired by the appellant Sarnam Singh was from a great distance as it has come in the evidence of the two doctors who have examined the injured persons that the fires which was shot at the injured persons was from the distance of 30-50 feet as per P.W.4 Dr. N.B. Saxena and from more than 12 feet and less than 30 feet according to P.W.5 U.C. Vaish which goes to show that the injuries were fired at the great distance and no blackening and tatooing was present around the wound of the injured persons. Hence their conviction under Section 307 IPC is against the evidence on record and at the most the case will not travel beyond Section 308 IPC. He submitted that the appellant Sarnam Singh is now aged about 63 years of age. 33. Hence their conviction under Section 307 IPC is against the evidence on record and at the most the case will not travel beyond Section 308 IPC. He submitted that the appellant Sarnam Singh is now aged about 63 years of age. 33. Sri R.B. Sahai and Sri Ajay Kumar Srivastava, learned counsel for the appellants Phool Singh, Gopal Chandra and Jeet Singh submitted that the said appellants are said to have assaulted the two injured namely Smt. Kalawati and Mev Singh with lathis and dandas along with accused Bhoop Singh, Badan Singh, Ram Kishore and Ramesh Chand who have died during the pendency of the present appeal. The said two injured received two injuries each on their non-vital part of the body and the said injuries were simple in nature. They further pointed out that there is no X-Ray or Supplementary Report of the two injured persons which may show whether any internal damage was caused to them. It was further argued that the appellant no.5 Phool Singh is aged about 60 years whereas appellant no.6 Gopal Chandra and appellant no.7 Jeet Singh are aged about 80 years respectively. Sri Sahai also adopted the argument of Sri K.S. Chahar, learned counsel for the appellant Sarnam Singh regarding the conviction of appellants u/s 307 IPC by the trial court and submitted that at the most case against the said appellants, if any, would fall u/s 308 IPC. 34. It was lastly submitted by the learned counsel for the appellants that the incident is 37 years old and has become too stale and the appeal has come up for hearing before this Court after 33 years and the appellant Sarnam Singh is aged about 63 years of age, the appellant Phool Singh is aged about 60 years, Gopal Chandra aged about 80 years and Jeet Singh is aged about 80 years. The appellants have been in jail for about two months in jail as under trial and after their conviction. The appellant Sarnam Singh and Phool Singh and the appellants Gopal Chand and Jeet Singh are earning livelihood for their families and it will be too harsh if they are send to jail after 33 years which would put their families in great hardship. Hence the rest of the sentence of the appellants be converted into fine and the same shall not be treated as an enhancement of sentence. 35. Hence the rest of the sentence of the appellants be converted into fine and the same shall not be treated as an enhancement of sentence. 35. On the other hand Sri Nikhil Chaturvedi, learned AGA has submitted that trial Court has rightly convicted the appellants and the evidence of the injured witness was sufficient against the appellant for his conviction. He further submitted that it was the appellant Sarnam Singh who has fired at the injured persons who have received injuries but he could not dispute the fact that the Doctors P.W.4 and P.W.5 who have examined the injured persons who have received fire-arm injuries has not opined that the said injuries were found to be dangerous to life or was sufficient in the ordinary course of nature to cause death of the injured persons. He also could not dispute the fact that there was no X-Ray report of the injured persons to substantiate that whether any internal damage was caused to the said injured persons. He also could not dispute the fact that the shot were fired by the appellant Sarnam Singh from a great distance which hit them on their person. 36. Considered the submissions advanced by learned counsel for the parties. 37. The FIR Ex.Ka. 1 was promptly lodged by Mev Singh P.W.3 at the Police Station Achhnera after about 5 hours of the occurrence. The occurrence took place at 6 p.m. on 9.4.1977 and the FIR of the case was lodged at 11 p.m. It has come in the evidence of S.I. Om Prakash P.W.7 that soon after lodging the FIR, Ex. Ka.1 of Mev Singh, accused Sarnam Singh himself came to the police station to lodge his own FIR regarding the injuries caused to him by Mev Singh. It would thus be seen that there was no time and scope left for the police officials to make any manipulations in the time of lodging the FIR. Ka.1 of Mev Singh, accused Sarnam Singh himself came to the police station to lodge his own FIR regarding the injuries caused to him by Mev Singh. It would thus be seen that there was no time and scope left for the police officials to make any manipulations in the time of lodging the FIR. It is thus obvious that FIR Ex.Ka.1 wa in fact lodged at P.S. Achhnera at 11 p.m. A perusal of the FIR reveals that meticulous details about the occurrence that on 9.4.1977 at about 6 p.m, the complainant and his family members were taking their meals in house at village Bhilawti that at the time the accused Sarnam Singh duly armed with a gun and rest of the seven accused duly armed with lathis entered into his house and started committing marpit, find place in this FIR. The complainant averred in this FIR that Sarnam Singh opened fire and thereby caused injuries to the complainant's grand-father Daroli Singh, father Samunder Singh, aunt Smt. Vidya Devi and his brothers. The complainant further averred in th is FIR that the accused persons assaulted him and his mother by means of lathis. It was averred that the complainant raised alarm and attracted Manik Chand P.W.2 Ratan Lal and other villagers who rescued him and his family members.The complainant averred that the accused persons came to his house with an intention to kill the members of his family. 38. Accused Sarnam Singh rest contended that it was wrong to suggest. He did not furnish any explanation for the gun shot injuries found on the person of these injured. He stated that while he was taking the cattle of the complainant to cattle pound, the complainant's father called on his sons who assaulted him and caused injuries. It was in the examination u/s 313 Cr.P.C of the accused Bhoop Singh that he stated that seeing the accused Sarnam Singh being assaulted by the complainant, his brothers, father and uncle, he ran along with the gun and opened fire by means of this gun with intention to save the life of Sarnam Singh and himself. It was in the examination u/s 313 Cr.P.C of the accused Bhoop Singh that he stated that seeing the accused Sarnam Singh being assaulted by the complainant, his brothers, father and uncle, he ran along with the gun and opened fire by means of this gun with intention to save the life of Sarnam Singh and himself. The gun shot injuries found on the person of Brijendra Singh, Vidya Devi, Pitam Singh, Daroli Singh, Man Singh and Samunder Singh were caused by means of the gun shot fire by Bhoop Singh does not inspire any confidence for the reasons that accused Bhoop Singh in this case is an old man aged about 70 years. The circumstances that as many as six persons were injured and that most of them had sustained about half a dozen or more injuries caused by means of gun fully go to prove that these injuries could have been caused by means of shots fired by accused Sarnam Singh. 39. From the evidence of P.W.1 Brijendra Singh and P.W.3 Mev Singh and independent witness Manik Chand, it is evident that the appellant Sarnam Singh has fired at the six injured persons who received gun shot injuries on their person and the other accused persons had assaulted the two other injured persons with lathis and dandas who also received injuries of blunt object. The presence of the said injured persons cannot be doubted at the at the place of occurrence. The medical examination report of the injured persons corroborate the prosecution story. The contention of the learned counsel for the appellant Sri K.S. Chahar that appellant Sarnam Singh has fired at the six injured persons but the injuries received by them was not opined by the doctors P.W.4 and P.W.5 that the injuries were dangerous to life or sufficient in the ordinary course of nature to cause death of the deceased appears to be correct and has force. Moreover there is no supplementary report of the said injured persons to substantiate that any internal damage was caused to the injured persons. Moreover there is no supplementary report of the said injured persons to substantiate that any internal damage was caused to the injured persons. Hence the conviction of the appellant Sarnam Singh under Section 307 IPC for a period of 10 years R.I. appears against the evidence on record, hence the conviction and sentence of the appellant under Section 307 IPC is set-aside and he is convicted for offence under Section 308 IPC for three years R.I. read with Section 149 IPC. So far as his conviction under Section 323 IPC readwith Section 149 IPC and under Section 452 IPC is concerned, is confirmed as held by the trial court. 40. So far as the argument of Sri R.B. Sahai and Sri Ajay Srivastava, learned counsel for the appellants namely Phool Singh, Gopal Chand, Jeet Singh is concerned, they have assaulted the two injured persons with lathis which appears to be on non-vital parts of body and appears to be simple in nature. Hence their conviction under Section 307 IPC is also against the evidence on record there is no supplementary report of the said injured persons to substantiate that any internal damage was caused to the injured persons. Hence the appellants Phool Singh, Gopal Chand, Jeet Singh are along with under Section 307 IPC and they are convicted under Section 308 IPC read with Section 149 IPC. So far as their conviction under Section 147, 323/149 IPC and under Section 452 IPC is concerned, their conviction is confirmed as held by the trial court. 41. Considering the facts and circumstances of the case and taking into account that the incident is 37 years old and appellants are old and appeal has come up for hearing after 33 years and rest of the four appellants Bhoop Singh, Badan Singh, Ram Kishore and Ramesh Chand are dead, it would suffice the ends of justice and it is directed that rest of the sentence of the appellant Sarnam Singh is converted into fine of Rs. 50,000/- and sentence of appellants Phool Singh, Gopi Chand and Jeet Singh is converted into fine of Rs.10,000/- each which shall be deposited by the appellants in the Court of C.J.M. Concerned within three months from today. Out of which, Rs. 50,000/- and sentence of appellants Phool Singh, Gopi Chand and Jeet Singh is converted into fine of Rs.10,000/- each which shall be deposited by the appellants in the Court of C.J.M. Concerned within three months from today. Out of which, Rs. 70,000/- is directed to be paid to the eight injured persons namely Smt. Kalawati w/o Samunder Singh, Samunder Singh S/o Daroli Singh, Daroli Singh S/o Duli Chand, Man Singh, S/o Sobran Singh, Peetam Singh, S/o Samunder Singh, Smt. Vidya Devi, W/o Sobaran Singh, Brijendra Singh, S/o Samunder Singh, Mev Singh, S/o Samunder Singh respectively in equal proportion, if alive, or to their legal heirs, if any, and Rs. 10,000/- shall go to the State. In default of payment of fine, as directed above, the appellants shall be taken into custody to serve out the sentence, as ordered by this Court. 42. In view of the above, the appeal is partly allowed. 43. Office is directed to send a certified copy of this order to CJM, concerned for its compliance. _______________