JUDGMENT : B.K. Narayana, J. 1. Heard learned Counsel for the appellants and learned A.G.A. for the State. 2. This criminal appeal has been preferred by the appellants against the judgment and order dated 17.9.1986 passed by HI Additional Sessions Judge, Gorakhpur in S.T. No. 296 of 1983 (State v. Rafiq and others) by which Khursheed A3, Naimullah A4, Shaukat A6, Manzoor A7 and Nanhey A8 have been convicted and sentenced to one year rigorous imprisonment under section 147 I.P.C., life imprisonment under section 302/149 I.P.C., seven years rigorous imprisonment under section 307/149 I.P.C. and one year rigorous imprisonment under section 323/149 I.P.C. while Rafiq Al has been convicted and sentenced to one year rigorous imprisonment under section 323 I.P.C., imprisonment for life under section 302/149 I.P.C. and seven years rigorous imprisonment under section 307/149 I.P.C., Shabbir A2 has been convicted and sentenced to two years rigorous imprisonment under section 148 I.P.C., seven years rigorous imprisonment under section 307/149 I.P.C., imprisonment for life under section 302 I.P.C. and one year rigorous imprisonment under section 323/149 I.P.C. All the sentences were directed to run concurrently. 3. This appeal qua Rafiq A1, Naimullah A4, Sanaullah A5 and Shaukat A6 has already been dismissed as abated by order dated 19.4.2018 passed by another Co-ordinate Bench of this Court. 4. The prosecution case as put during the trial, is as here under: 5. It is alleged that Rafiq (deceased A1), Shabbir A2, Khursheed A3, Naimullah (deceased A4), Sanaullah (deceased A5), Shaukat (deceased A6), Manzoor A7 and Nanhey A8 are the residents of village Sihaichpar and they are inter se related. P.W. 2 Virendra Rai (informant), injured-Surendra Rai, P.W. 1 Raghunath Rai and P.W. 3 Anil Rai are said to be the resident of village Kahla which is the adjoining village of village Sihaichpar. Deceased-Rama Shanker Rai also resided in village Kahla. There is a public tube-well towards west of village Kahla and the distance of tube-well from village Kahla is about half furlong. People of village Kahla, Rawatpur and Sihaichpar used to take water from the same tube-well for irrigation purposes. 6. It is further alleged that on 30.4.1981 at about 11 A.M., P.W. 2 Virendra Rai, P.W. 1 Raghunath Rai, Rama Shanker Rai, P.W. 3 Anil Rai and Surendra Rai had gone to the tube-well for taking water for irrigating their fields. People of village Kahla, Rawatpur and Sihaichpar used to take water from the same tube-well for irrigation purposes. 6. It is further alleged that on 30.4.1981 at about 11 A.M., P.W. 2 Virendra Rai, P.W. 1 Raghunath Rai, Rama Shanker Rai, P.W. 3 Anil Rai and Surendra Rai had gone to the tube-well for taking water for irrigating their fields. P.W. 2 Virendra Rai and his said companions were talking with the tube-well operator in respect of taking water. In the meantime Shabbir A2, Khursheed A3 and Naimullah (deceased A4) came there and they also asked for water from the tube-well. These persons got involved in an altercation with P.W. 2 Virendra Rai and his companions expressed their intention to take the water first. P.W. 2 Virendra Rai and his companions, thereupon said that they would take the water first because they were there from before. Rafiq (deceased A1), Naimullah (deceased A4) and Shabbir A2 then became annoyed and left the spot saying that they would come again and then they would tell as to who would take the water first. After their departure, P.W. 2 Virendra Rai, Surendra Rai and P.W. 3 Anil Rai remained at the tube-well for taking the water, P.W. 1 Raghunath Rai and Rama Shanker Rai returned to their houses. After about, one hour Shabbir A2 and Sanaullah (deceased A5) both armed with guns, Khursheed A3, Naimullah (deceased A4), Rafiq (deceased A1), Shaukat (deceased A6), Manzoor A7 and Nanhey A8 armed with lathis came there. They had come with pre concert forming an unlawful assembly with a common object to teach a lesson to P.W. 2 Virendra Rai and his companions and to assault anybody who came in their way to disturb them from taking the water. Upon reaching at the tube-well, Rafiq (deceased A1) stepped ahead and assaulted Surendra Rai by lathi and broke his head. He also assaulted P.W. 3 Anil Rai and caused him injuries. While assaulting these persons, he said where their Pradhan had gone. Finding themselves in danger, P.W. 2 Virendra Rai, Surendra Rai and P.W. 3 Anil Rai ran towards their village raising an alarm for help. When P.W. 2 Virendra Rai, Surendra Rai and P.W. 3 Anil Rai were fleeing to save themselves, the accused-appellants chased them. While assaulting these persons, he said where their Pradhan had gone. Finding themselves in danger, P.W. 2 Virendra Rai, Surendra Rai and P.W. 3 Anil Rai ran towards their village raising an alarm for help. When P.W. 2 Virendra Rai, Surendra Rai and P.W. 3 Anil Rai were fleeing to save themselves, the accused-appellants chased them. When these persons were being chased by the accused-appellants, P.W. 1 Raghunath Rai and Rama Shanker Rai rushed and witnesses Ram Bahal Yadav, Daya Shanker Yadav and Mohan Dubey came from the side of the village Kahla. In the meantime, Shabbir A2 fired a shot from his gun which struck Rama Shanker and he fell on the ground. P.W. 1 Raghunath Rai, who was then Pradhan of the village proceeded further in order to lift Rama Shanker Rai. Then Sanaullah (deceased A5) fired another shot which struck P.W. 1 Raghunath Rai. As P.W. 2 Virendra Rai and his companions had reached near the village, the accused-appellants fired shots from the place where they were exhorting that if anybody dared to advance any further then he will be shot. Upon intervention by the witnesses, accused-appellants left the spot calling names to P.W. 2 Virendra Rai and his companions. 7. In the incident of brawl Rama Shanker Rai and P.W. 1 Raghunath Rai had received grievous injuries and P.W. 3 Anil Rai and Surendra Rai had sustained simple injuries. The two injured having grievous injuries were carried by Surendra Rai to Gorakhpur Medical College for medical aid and examination of injuries. While the injured were being taken to the Medical College, Rama Shanker Rai having grievous bullet injuries expired on the way. Another injured P.W. 1 Raghunath Rai was taken to the emergency ward wherein he was given medical aid and his injuries were examined by P.W. 9 Dr. Navin Chandra at about 2 P.M. The other injured having simple injuries remained busy in attending to other seriously injured persons. 8. Just after the occurrence, P.W. 2 Virendra Rai prepared a written report of the incident and accompanied with P.W. 3 Anil Rai went to P.S. Gagha and lodged it at 13:20 hours. Navin Chandra at about 2 P.M. The other injured having simple injuries remained busy in attending to other seriously injured persons. 8. Just after the occurrence, P.W. 2 Virendra Rai prepared a written report of the incident and accompanied with P.W. 3 Anil Rai went to P.S. Gagha and lodged it at 13:20 hours. By the time of lodging of the F.I.R. it was not known to the complainant-P.W. 2 Virendra Rai whether Rama Shanker Rai had expired or not, therefore, as the facts existed at the time of incident, were reported and on that basis a chek was prepared and initially a case under sections 147, 148, 307/149 and 504 I.P.C. was registered against the accused-appellants. 9. The investigation of the case was entrusted to P.W. 4 Lalchand Yadav, Sub-Inspector at P.S. Gagha. The F.I.R. of the case was written in his presence at the police station and at the time of lodging of the F.I.R. complainant-P.W. 2 Virendra Rai and injured-P.W. 3 Anil Rai were available there. Therefore, as soon as investigation came to him, he recorded the statements of these two witnesses and after that he along with other police personnel proceeded to inspect the spot. He reached at the place of occurrence on the same day at about 3:30 P.M. and recorded the statements of the witnesses, Ram Bahal, Daya Shanker and Mohan. On the pointing out of the complainant-Virendra Rai and other witnesses, he prepared the site plan of the place of occurrence and took bloodstained and simple earth and prepared a memo in respect of the same. After recording the statements of the above witnesses and preparing memo, he closed the proceeding of that day. On 1.5.1981, he came to District Hospital, Gorakhpur and learnt that injured-P.W. 1 Raghunath Rai, Rama Shanker Rai and Surendra Rai were not admitted there. He then went to Medical College, Gorakhpur and met P.W. 1 Raghunath Rai who told him that Rama Shanker Rai had died last day while he was on the way of Medical college. He recorded the statement of P.W. 1 Raghunath Rai in the Medical College and since night had fallen, he stayed in City-Gorkahpur that day. He searched for the accused-appellants but they were untraceable. He recorded the statement of P.W. 1 Raghunath Rai in the Medical College and since night had fallen, he stayed in City-Gorkahpur that day. He searched for the accused-appellants but they were untraceable. In the morning, he came back to his police station and on the basis of the information gathered by him, he got the case altered from section 307 I.P.C. to section 302 I.P.C. and he got these facts recorded in G.D. No. 7 at 6:45 hours. Further investigation of the case was taken up by P.W. 8 Rajendra Singh, S.O. himself. Conducting the investigation, Rajendra Singh found that injuries of Surendra Rai had yet not been examined. He therefore, instructed him to appear before the Medical Officer. Accordingly on 8.5.1986, Surendra Rai was taken to P.H.C. Gagha wherein his injuries were examined at 2:20 A.M. After obtaining necessary datas and collecting papers prepared during investigation, injury reports and post-mortem report etc. and completing other formalities of the investigation, P.W. 8 Rajendra Singh charge-sheeted the accused-appellants for committing the offences as above. 10. When the case opened for trial in the Sessions Court, Rafeeq (deceased A1) was charged under sections 147, 323, 302/149 and 307/149 I.P.C. Shabbir A2 was charged under sections 148, 302, 307/149 I.P.C. and 323/149 I.P.C. Sanaullah (deceased A5) was charged under sections 148, 307, 302/149 and 323/149 I.P.C. and Naimullah (deceased A4), Shaukat (deceased A6), Manzoor A7, Khursheed A3 and Nanhey A8 were charged under sections 147, 302/149, 307/149 and 323/149 I.P.C. The accused-appellants pleaded not guilty to the charges and claimed trial. 11. In order to prove its case, the prosecution examined as many as nine witnesses namely P.W. 1 Raghunath Rai, P.W. 2 Virendra Rai, P.W. 3 Anil Rai, P.W. 4 Lalchand Yadav, P.W. 5 Dr. A.K. Srivastava, P.W. 6 Surya Nath Singh, P.W. 7 Dr. V.P. Barnwal, P.W. 8 Rajendra Singh and P.W. 9 Dr. Navin Chandra. 12. P.W. 1 Raghunath Rai, one of the injured witnesses who in his evidence tendered during the trial had corroborated the prosecution story on all material points and categorically stated that Shabbir A2 had fired with gun and shot so fired struck Rama Shanker Rai. On receiving the gunshot wound, he fell on the ground. P.W. 2 Virendra Rai, who is the complainant of the case, proved the written report of the incident Ext. On receiving the gunshot wound, he fell on the ground. P.W. 2 Virendra Rai, who is the complainant of the case, proved the written report of the incident Ext. Ka1 and has narrated the facts leading to the incident and disclosed that injuries have been caused by the accused-appellants and shots had been fired by Shabbir A2 and Sanaullah (deceased A5) which struck to Rama Shanker Rai and P.W. 1 Raghunath Rai respectively. As a result of firearm injuries on his person, subsequently Rama Shanker Rai succumbed to his injuries while on way to Medical College. P.W. 3 Anil Rai, another injured witness, who remained at the spot from beginning to end, deposed that as to how the accused-appellants came and in what manner altercation took place and how the incident of brawl took place later on. He has fully corroborated the facts deposed by P.W. 1 Raghunath Rai and P.W. 2 Virendra Rai. P.W. 4 Lalchand Yadav, the first Investigation Officer of the case has narrated the steps taken by him during investigation in a sequence and has proved the site plan of the place of occurrence Ext. Ka2, memo in respect of taking of bloodstained and simple earth Ext. Ka3. He has also stated that at Medical College, Gorakhpur, he had come to know from P.W. 1 Raghunath Rai that Rama Shanker Rai due to the injuries on his person expired while he was on the way to Medical College. Therefore, on 2.5.1981 when he came back to the police station, he got altered the case vide G.D. No. 7 time 6:45 hours from section 307 I.P.C. to 302 I.P.C. P.W. 5 Dr. A.K. Srivastava was the Medical Officer in district hospital, Gorakhpur. On 1.5.1981 at 3 P.M., he conducted post-mortem examination on the body of deceased-Rama Shanker Rai. He in his statement recorded before the Court proved the post-mortem report as Ext. Ka3/1. At the time of conducting post-mortem examination, he noticed the following ante-mortem injuries on the person of the deceased:-- (i) Abraded swelling 4" x 2" on the left side forehead extending towards the left temporal region just above the left eye-brow. On out Hematoma present (ii) Taumatic swelling 3" x 2" on the occipital region of the skull on cut Hematoma present. (iii) Traumatic swelling 1 (1/2)" x 1" on the left upper eye lid. On out Hematoma present (ii) Taumatic swelling 3" x 2" on the occipital region of the skull on cut Hematoma present. (iii) Traumatic swelling 1 (1/2)" x 1" on the left upper eye lid. (iv) Abrasion 1/4" x 1/4" on the front of right thigh 1" above the knee joint. (v) Abrasion 1" x 1/4" on the front of left leg 5" below the knee joint. (vi) Gunshot wound of entry 1/4" x 1/4" on the front of left side chest 2" above the medial to the left side nipple, margins are inverted and tattooing is present. The pellet is penetrated the left lung towards the medial side and the sixth thoracic vertebrae towards the left side. The pellet was found in the muscles of back of chest 1/2" lateral and left to the 6th thoracic vertebra. 13. In the opinion of P.W. 5 Dr. A.K. Srivastava, 1 (1/2) days had passed since death at the time of post-mortem and the death was caused on account of shock and hemorrhage due to ante mortem injuries and ante mortem injury No. 6 was sufficient in ordinary course of nature to cause death. He also noticed that the age of the deceased was about 22 year and he was a young man of average built and at the time of examination rigor mortis was present in both the lower limbs. 14. P.W. 6 Surya Nath Singh was Head Moharrir in P.S. Gagha on the date of occurrence. He deposed that he wrote chek F.I.R. on the basis of written report of the occurrence Ext. Ka1 and registered a case in the G.D. He has proved the chek F.I.R. Ext. Ka4, G.D. registering the case Ext. Ka5 and G.D. altering the case from section 307 I.P.C. to section 302 I.P.C. Ext Ka6. 15. P.W. 7 Dr. V.P. Barnwal was the Medical Officer in P.H.C. Gagha on 1.5.1981 and 8.5.1981. On these two dates, he examined P.W. 3 Anil Rai and Surendra Rai respectively. While examining the injuries of P.W. 3 Anil Rai, he noticed the following two injuries on his person: (i) complaint of pain on right thigh. (ii) complaint of pain on head on the vertex region. 16. While examining Surendra Rai, he found following injuries on his person:-- (i) 1 (1/2) cm. long wound with scab present on the right head 7 cm. above right forehead. (ii) complaint of pain on head on the vertex region. 16. While examining Surendra Rai, he found following injuries on his person:-- (i) 1 (1/2) cm. long wound with scab present on the right head 7 cm. above right forehead. (ii) complaint of pain on back of chest (right side) but no mark of injury present. 17. Injuries of these persons were opined to be simple in nature. The Medical Officer could not depose about the duration of injuries on the person of P.W. 3 Anil Rai as in fact there was no visible injury enabling him to ascertain the duration. However, with regard to injuries of Surendra Rai, he deposed that their duration was 7 to 9 days old but again the Medical Officer failed to disclose the exact nature of these injuries with relation to the weapons used. He however, proved both the injury reports. Injury report of P.W. 3 Anil Rai is Ext. Ka-7 and injury report of Surendra Rai is Ext. Ka-8. 18. P.W. 8 Rajendra Singh was the second Investigating Officer of the case. He has formally deposed about the manner, he conducted and concluded the investigation and proved the charge-sheet Ext. Ka9. 19. P.W. 9 Dr. Navin Chandra was posted as Medical Officer in B.R.D. Medical College, Gorakhpur on the date of occurrence. On 30.4.1981 at 2 P.M., he examined P.W. 1 Raghunath Rai and found following injuries on his person: (i) wound of entry 1 cm. x 1 cm. x under observation 9 cm. below umbilicus. Bleeding present. (ii) wound of entry on dorsum of right hand 1 cm. x 1 cm. x under observation 5 cm. above metacarpophalangeal joint of right middle finger and 2.5 cm. below right wrist-Bleeding present. (iii) Red abrasion 2.5 cm. x 1 cm. on outer aspect of right elbow 1 cm. lateral to lateral condible right humerous. 20. He proved the injury report of P.W. 1 Raghunath Rai Ext. Ka15. He opined that injury No. 3 was simple in nature and had been caused by friction. Injury Nos. 1 and 2 were also fresh and had been caused by firearm. In order to ascertain their true nature, these injuries were kept under observation. Further in the opinion of the doctor these injuries would have been caused to the injured on 30.4.1981 at about 12 noon. He also stated that it was quite possible that injury Nos. Injury Nos. 1 and 2 were also fresh and had been caused by firearm. In order to ascertain their true nature, these injuries were kept under observation. Further in the opinion of the doctor these injuries would have been caused to the injured on 30.4.1981 at about 12 noon. He also stated that it was quite possible that injury Nos. 1 and 2 might have been caused by a gun. 21. When Rama Shanker Rai expired on the way to Medical College, if s information was sent to P.S. Gulariha Bazar. Sub-Inspector Umesh Chandra who then came from P.S. Gulariha Bazar alongwith two constables and conducted the inquest on the dead body of Rama Shanker Rai in presence of the panches namely Ram Naresh Rai, Markande Rai, Vishwadeo Yadav, Sheo Prasad Yadav and Ram Bahal Yadav, prepared the inquest report and sealed the dead body and sent it for postmortem examination alongwith the papers. Prosecution tendered the inquest report of Rama Shanker Rai and other papers concerning the post-mortem examination in evidence which the learned Counsel for the accused-appellants admitted as genuine. Accordingly inquest report was marked as Ext. Ka10, letter to C.M.O. Gorakhpur requesting him to inform the result of post-mortem examination Ext. Ka11, letter to C.M.O. requesting to get the post-mortem conducted Ext. Ka12, photo lash Ext. Kal3 and challan lash Ext. Kal4. 22. Apart from examining the above witnesses in Court, the prosecution also filed an affidavit Ext. Ka16 of Constable C.P. No. 945 Surendra Singh to prove that the dead body of deceased-Rama Shanker Rai was sealed and it remained intact till he handed it over to the Medical Officer for postmortem examination. The accused-appellants did not call this witness for cross-examination. 23. After close of the prosecution evidence, accused-appellants were examined under section 313 Cr.P.C. and all incriminating facts appearing in the prosecution evidence were put to them which they denied and pleaded not guilty. Khursheed A3, Nanhey A8, Naimullah (deceased A4), Manzoor A7, Sanaullah (deceased A5), Shaukat (deceased A6) and Shabbir A2 pleaded ignorance about the occurrence and alleged that they had been implicated falsely due to enmity. Rafeeq (deceased A1) also denied the prosecution version and put a counter version of the incident and said in the last para of his statement that on 30.4.1981, his onion field was being irrigated from the public tubewell and water was being supplied since morning. Rafeeq (deceased A1) also denied the prosecution version and put a counter version of the incident and said in the last para of his statement that on 30.4.1981, his onion field was being irrigated from the public tubewell and water was being supplied since morning. He himself, his son-C.W. 2 Juber Alam, maternal nephew-Imtiaz and two other persons namely C.W. 3 Om Prakash Sahi and C.W. 1 Ram Dass Sahi were looking after the water in his field. At about 10 A.M., P.W. 1 Raghunath Rai, Rama Shankar Rai, Ram Naresh and others came armed with gun, country made pistol and lathis and started cutting the 'Kulaba'. They asked them not to divert the water to their field. He himself and other persons also asked them to refrain from doing so, but they were adamant. They threatened and chased them. P.W. 1 Raghunath Rai fired with his gun whereas Rama Shanker Rai fired from a country made pistol. Other persons started throwing brick bats and dhelas. As a result of shots fired by P.W. 1 Raghunath Rai and Rama Shanker Rai and brick-batting and throwing of dhelas, C.W. 2 Juber Alam, Imtiaz, C.W. 3 Om Prakash Sahi and C.W. 1 Ram Dass Sahi received number of injuries on their persons. Rafiq (deceased A1) further stated in his statement that when he saw that the other party had attacked him and his companions and it was difficult for them to save their lives, he then in order to save himself and his companions fired from his licensed gun. His other, companions also threw dhelas in their defence. A report of the incident was sent to S.P. Gorakhpur through telegram. 24. The accused-appellants in order to prove the defence story examined five witnesses namely D.W. 1 Dr. S.C. Tripathi, D.W. 2 Ram Bhawan Singh, D.W. 3 Dr. S.M. Shukla, D.W. 4 Dr. Narendra Mohan Seth and D.W. 5 Dr. P.C. Srivastava. 25. D.W. 1 Dr. S.C. Tripathi was Radiologist in District Hospital, Gorakhpur on 1.5.1981, stated that he had got injuries of Imtiaz Shahi, Basheer Shahi and C.W. 1 Ram Dass Sahi x-rayed under supervision. These persons were referred for X-ray examination of skull by Dr. S.M. Shukla. X-ray examination of these people was done as a private medico legal case. He proved X-ray plates of Imtiaz Shahi and C.W. 1 Ram Dass Sahi which are material Ext. I and material Ext. These persons were referred for X-ray examination of skull by Dr. S.M. Shukla. X-ray examination of these people was done as a private medico legal case. He proved X-ray plates of Imtiaz Shahi and C.W. 1 Ram Dass Sahi which are material Ext. I and material Ext. II on the record. He also proved reports of these two X-rays which are Ext. Khal and Ext Kha2. He stated that X-ray report Ext. Khal which relates to Imtiaz Shahi, shows that there were two radio opaque metallic density shadows in skull and another in the mandible region. He also stated that similarly report Ext Kha2 relating to C.W. 1 Ram Dass Sahi shows that there was one radio opaque metallic density shadow in orbit region. 26. D.W. 2 Ram Bhawan Singh was the tubewell operator. He was operating the tubewell No. 174-B.G. Of village Kahla in April 1981. He has stated that field Nos. 807, 608 and 825 belonging to Rafiq (deceased A1) were being irrigated since 28.4.1981. On these fields, there was onion crop of the accused-appellants. On 30.4.1981 also, the onion crop of Rafiq (deceased A1) was being irrigated since 8:00 A.M. He also stated that as a tubewell operator, he maintained a register and entered all necessary details, the name of the owner of the field, plot nos, area irrigated and name of the crop etc. and as and when he used to supply water to somebody he used to record initials of the name of the person concerned in the said register. In his deposition, he further proved the entries Ext. Kha3, Ext. Kha4 and Ext Kha5 in respect of Rafiq's A1 field and deposed that the field of Rafiq (deceased A1) was being irrigated continuously. He also stated that P.W. 1 Raghunath Rai, Rama Shanker Rai, Ram Naresh came to him on 30.4.1981 at about 10 A.M. and asked him to supply water for filling his empty fields. He then said that water was already being supplied to Rafiq's field and hence it would therefore, be proper that they go and talk to Rafiq (deceased A1) and if Rafiq (deceased A1) has no objection, he would provide them water as required. He also stated that at that time P.W. 1 Raghunath Rai was having a gun. He then said that water was already being supplied to Rafiq's field and hence it would therefore, be proper that they go and talk to Rafiq (deceased A1) and if Rafiq (deceased A1) has no objection, he would provide them water as required. He also stated that at that time P.W. 1 Raghunath Rai was having a gun. Rama Shanker Rai, P.W. 1 Raghunath Rai and others thereafter went towards the field of Rafiq (deceased A1) which is situated towards west of the tubewell. After about 15 minutes of their departure from tubewell, he heard sounds of gunshot. He also said that afterwards he left the tubewell and went to attend another tubewell in village Hata. He also clarified that towards east of the tubewell there exists a field belonging to Dhelau Rai. Several mango trees existed in his field. In and around these mango trees, on that date neither any incident took place on that date nor any shot was fired in his presence. 27. D.W. 3 Dr. S.M. Shukla was posted as Emergency Medical Officer in District Hospital, Gorakhpur. On 3.4.1981, he had examined C.W. 1 Ram Dass Sahi, C.W. 3 Om Prakash Sahi, C.W. 2 Juber Alam and Imtiaz. In his statement before the Court, he had deposed about the injuries of these persons and proved their injury reports Ext Kha-6 to Ext Kha-9 while examining C.W. 1 Ram Dass Sahi at 7:40 P.M., he noticed the following injuries on his person: (i) swelling over the eyelids - congestion of conjunctiva. Referred to eye surgeon for expert opinion. Patient states that he has got injury by pellet Advised X-ray. 28. While examining C.W. 3 Om Prakash Sahi at 7:45 P.M., he noticed the following injuries on his person:-- (i) Abrasion 1/4 cm. x 1/4 cm. on the back of the left elbow joint. No scab. (ii) Abrasion 1/4 cm. x 1/4 cm. on the back of the right leg upper part - 12 cms. below the knee joint blackening present. Advised x-ray. 29. While examining C.W. 2 Juber Alam at 8:05 P.M., he noticed the following injuries on his person:-- (i) Abrasion 1/4 cm. x 1/4 cm. on the upper and inner part of the right upper arm 7 (1/2) cm. below the shoulder joint. Blackening present. Advised X-ray. (ii) Traumatic swelling 8 cm. x 6 cm. Advised x-ray. 29. While examining C.W. 2 Juber Alam at 8:05 P.M., he noticed the following injuries on his person:-- (i) Abrasion 1/4 cm. x 1/4 cm. on the upper and inner part of the right upper arm 7 (1/2) cm. below the shoulder joint. Blackening present. Advised X-ray. (ii) Traumatic swelling 8 cm. x 6 cm. on the back of the right elbow joint - Tenderness present. 30. While examining Imtiaz at 8:15 P.M., he noticed the following injuries on his person:-- (i) Abrasion 1/4 cm. x 1/4 cm. on the middle of the head 6 (1/2) cm. above the Breema. Advised x-ray. (ii) Abrasion 1/4 cm. x 1/4 cm. on the right side lower lip. No scab. (iii) Abrasion 1/4 cm. x 1/4 cm. on the front of the neck in the middle third. No scab. (iv) Abrasion 1/4 cm. x 1/4 cm. on the front of the left thigh upper part. No scab. (v) Abrasion 1/4 cm. x 1/4 cm. on the front and middle part of right thigh. No scab. 31. Nature of injuries of C.W. 1 Ram Dass Sahi could not be ascertained and X-ray was advised. Injuries of C.W. 3 Om Prakash Sahi were simple in nature. Injury No. 1 had been caused by friction. With regard to injury No. 2, x-ray was advised. Injury No. 2 of C.W. 2 Juber Alam was simple and it had been caused by blunt weapon. With regard to injury No. 1, X-ray was advised. All the injuries of Imtiaz were simple in nature and had been caused by friction against hard surface except injury No. 1 whose nature was to be decided after X-ray examination. Injuries of all these persons were half day old and these injuries could have been caused on 30.4.1981 at 10:00 A.M. 32. D.W. 4 Dr. Narendra Mohan Seth was posted as Medical Superintendent in Gorakhpur Eye Hospital in April-May, 1981. He has stated that injured C.W. 1 Ram Dass Sahi was admitted in his hospital. He had perforating injury. He had advised also x-ray. Thereafter, he received x-ray report which indicated that there was one pellet lying deep in the right orbit. He also stated that after usual treatment the patient was discharged on 1.6.1981. 33. D.W. 5 Dr. P.C. Srivastava, the owner of P.C. X-ray clinic, proved the X-ray report of C.W. 1 Ram Dass Sahi Ext. Kha-10. He had advised also x-ray. Thereafter, he received x-ray report which indicated that there was one pellet lying deep in the right orbit. He also stated that after usual treatment the patient was discharged on 1.6.1981. 33. D.W. 5 Dr. P.C. Srivastava, the owner of P.C. X-ray clinic, proved the X-ray report of C.W. 1 Ram Dass Sahi Ext. Kha-10. He stated that x-ray showed one pellet lying deep in the right orbit. 34. After conclusion of the examination of the defence witnesses, the Learned Trial Judge taking note of the fact that four persons namely C.W. 2 Juber Alam, Imtiaz, C.W. 3 Om Prakash Sahi and C.W. 1 Ram Dass Sahi who had also received injuries in the occurrence and whose injury reports had been brought on record by the accused-appellants and proved as Ext. Kha6 to Ext. Kha9, had not been examined and considering the examination of these persons essential for the just decision of the case he acting suo motu and invoking his jurisdiction under section 311 Cr.P.C. summoned Juber Alam, Imtiaz, Om Prakash Sahi and Ram Dass Sahi as Court witnesses and pursuant to the Court's order, Ram Dass Sahi, Juber Alam and Om Prakash appeared in the Court and were examined as C.W. 1 to C.W. 3 respectively. The presence of Court witness, Imtiaz could not be procured before the Court as it was reported that he was abroad in connection with earning his livelihood and his whereabouts were not known to anybody. Accordingly vide order dated 16.7.1986 examination of Imtiaz was dispensed with and whose evidence was closed. Since all the three Court witnesses had in their statements failed to support the prosecution story as narrated in the F.I.R. and in fact on the contrary the defence version found full support from their evidence, examination of the accused-appellants under section 313 Cr.P.C. was also dispensed with. 35. We may also have a glance at the evidence of C.W. 1 Ram Dass Sahi, C.W. 2 Juber Alam and C.W. 3 Om Prakash Sahi quickly. C.W. 1 Ram Dass Sahi deposed before the Trial Court that he had received injuries on 30.4.1981 at about 10 A.M. at a place towards the west of the tubewell in Mauja Rawatpur while the aforesaid tubewell was situated within the limits of village Kahla. C.W. 1 Ram Dass Sahi deposed before the Trial Court that he had received injuries on 30.4.1981 at about 10 A.M. at a place towards the west of the tubewell in Mauja Rawatpur while the aforesaid tubewell was situated within the limits of village Kahla. Rama Shanker Rai (deceased) and P.W. 1 Raghunath Rai had caused injuries to him by firing from a country made pistol and a gun respectively. On the date of incident the field of Rafiq was being irrigated under the supervision of C.W. 1 Ram Dass Sahi, Om Prakash, Acchu, Chhotey and Rafeeq (deceased A1). Rama Shanker Rai (deceased) and P.W. 1 Raghunath Rai came there and declared that they would irrigate their filed first on which Rafeeq (deceased A1) said that he will not let them to do so and an altercation took place whereafter P.W. 1 Raghunath Rai and Rama Shanker Rai (deceased) went away and after about 10-15 minutes, P.W. 1 Raghunath Rai and Rama Shanker Rai (deceased) returned with 10-15 persons and started demolishing the drain and exhorting that they would divert the water, an altercation took place again whereafter Rama Shanker Rai (deceased) and his companions chased them, Rama Shanker Rai (deceased) fired from his country made pistol while P.W. 1 Raghunath Rai shot from his gun, a pellet stuck in his right eye and he lost his right eye subsequently. The incident had taken place on 20.4.1981 at about 10 A.M. After being shot he had fallen on the ground and he was not aware what happened thereafter. He was cross-examined at great length by the Counsel for the State but he stuck to his version of the incident narrated by him in his examination-in-chief. 36. Similarly, C.W. 2 Juber Alam son of Rafeeq Khan (deceased A1) corroborated the evidence of C.W. 1 Ram Dass Sahi in all material particulars pertaining to the incident. He in his cross-examination by the Counsel for the State, deposed that when P.W. 1 Raghunath Rai had exhorted his companions to shoot Rafeeq (deceased A1), he tried to stop them. He also deposed that they had been throwing brick-batts from their side. He also deposed that his father had fired at Rama Shanker Rai (deceased) and P.W. 1 Raghunath Rai in self-defence after they and their companions had come very close to him. He also deposed that they had been throwing brick-batts from their side. He also deposed that his father had fired at Rama Shanker Rai (deceased) and P.W. 1 Raghunath Rai in self-defence after they and their companions had come very close to him. At the time when his father had fired at Rama Shanker Rai (deceased) he was at a distance of about 5 feet from him. 37. C.W. 3 Om Prakash Sahi also deposed in the same manner as C.W. 1 Ram Dass Sahi and C.W. 2 Juber Alam. He deposed that Rama Shanker Rai (deceased) had a gun and P.W. 1 Raghunath Rai was carrying a country made pistol respectively. They had fired at them and in the firing done by them, he, C.W. 1 Ram Dass Sahi, C.W. 2 Juber Alam and Imtiaz had received gunshot injuries. Rafiq (deceased A1) had shot at P.W. 1 Raghunat Rai and Rama Shanker Rai (deceased) after they had come very close to him and in the firing done by him, they had also received injury. 38. Learned III Additional Sessions Judge, Gorakhpur after considering the submissions advanced before him by the learned Counsel for the parties and scrutinizing the evidence on record both oral as well as documentary, convicted Khursheed A3, Naimullah (deceased A4), Shaukat (deceased A6), Manzoor A7 and Nanhey A8 under sections 147, 302/149, 307/149 and 323/149 I.P.C., Rafiq (deceased A1) under sections 147, 323, 302/149 and 307/149 I.P.C., Shabbir A2 under sections 148, 302, 307/149 and 323/149 and Sanaullah (deceased A5) under sections 148, 307, 302/149 and 323/149 I.P.C. and awarded aforesaid sentences to them. 39. Hence this appeal. 40. Learned Counsel for the appellants has submitted that the prosecution having, failed to explain the injuries suffered from the side of the accused-appellants, it is apparent that the true genesis of the incident has been suppressed and the prosecution has failed to come up with clean hands, neither the recorded conviction of the appellants nor the sentences awarded to them can be sustained. He next submitted that the motive set up by the prosecution for the accused-appellants to commit the offences in question stood falsified from the evidence of D.W. 2 Ram Bhawan Singh, the tube-well operator and it was further proved from his evidence that at the time of the incident the field of Rafeeq (deceased A1) was being irrigated. He next submitted that the motive set up by the prosecution for the accused-appellants to commit the offences in question stood falsified from the evidence of D.W. 2 Ram Bhawan Singh, the tube-well operator and it was further proved from his evidence that at the time of the incident the field of Rafeeq (deceased A1) was being irrigated. The whole prosecution theory is that at the time of the occurrence a dispute have taken place between the informant's side and the accused-appellants over supply of water or irrigating the field of accused-appellants, the accused-appellants assaulting the informant side with lathis, dandas and firearms stood disproved. The prosecution has failed to prove either the place of occurrence or the manner of assault as spelt out in the F.I.R. by leading any cogent evidence and hence neither the recorded conviction of the appellants nor the sentences awarded to them can be maintained and are liable to be set aside. 41. Per contra learned A.G.A. submitted it is proved from the evidence on record that the accused-appellants were the aggressors. The prosecution has proved the time, place, manner of assault and the motive for the accused-appellants to commit the offence as spelt out in the F.I.R. This appeal lacks merit and is liable to be dismissed. 42. The prosecution case as is evident from the perusal of the written report of the incident Ext. Ka1 and the statements of P.W. 1 Raghunath Rai, P.W. 2 Virendra Rai, P.W. 3 Anil Kumar Rai and P.W. 4 Lalchand Yadav, the four eye-witnesses of the occurrence is that on 30.4.1981 at about 11 A.M., P.W. 1 Raghunath Rai, Rama Shanker Rai (deceased), P.W. 2 Virendra Rai, P.W. 3 Anil Rai and Surendra Rai, all residents of village Kahla had gone to the tubewell for taking water for irrigating their fields while P.W. 2 Virendra Rai and his companions were talking with the tubewell operator in respect of taking water, Rafeeq (deceased A1), Shabbir A2, Khursheed A3, Naimullah (deceased A-4), Sanaullah (deceased A-5), Shaukat A-6, Manzoor A-7 and Nanhey A8, all residents of adjoining village Sihaichpar came and also asked for supply of water to their field. An altercation took place between the members of the two parties but when P.W. 2 Virednra Rai and his companions expressed that the water should be supplied to their filed first as they had come to the tubewell before them, Rafiq (deceased A1), Naimullah (deceased A4) and Shabbir A2 had become annoyed and left the spot saying that they would return and then they would tell that who would take the water first. After their departure, P.W. 2 Virendra Rai, Surendra Rai and P.W. 3 Anil Rai stayed back at the tubewell. P.W. 1 Raghunath Rai and Rama Shanker Rai returned to their houses. After about one hour Shabbir A2 and Sanaullah (deceased A5) both armed with guns while Khursheed A3, Naimullah (deceased A4), Rafiq (deceased A1), Shaukat (deceased A6), Manzoor A7 and Nanhey A8 armed with lathis came there with a common object to teach a lesson to P.W. 2 Virendra Rai and his companions and to assault anybody who came in their way to disturb them from getting their field irrigated. After reaching at the tubewell, Rafiq (deceased A1) assaulted Surendra Rai with lathi and broke his head. He also assaulted P.W. 3 Anil Rai and caused injuries to him. While assaulting these persons, he said where their Pradhan had gone. Finding themselves in danger, P.W. 2 Virendra Rai, Surendra Rai and P.W. 3 Anil Rai ran towards their village raising an alarm for help. When P.W. 2 Virendra Rai, Surendra Rai and P.W. 3 Anil Rai were fleeing to save themselves, the accused-appellants chased them. When these persons were being chased by the accused-appellants, P.W. 1 Raghunath Rai and Rama Shanker Rai rushed towards them and witnesses Ram Bahal Yadav, Daya Shanker Yadav and Mohan Dubey also came from the side of the village Kahla. In the meantime, Shabbir A2 fired a shot from his gun which struck Rama Shanker and he fell on the ground. P.W. 1 Raghunath Rai, who was then Pradhan of the village proceeded to lift Rama Shanker Rai. Then Sanaullah (deceased A5) fired another shot which struck P.W. 1 Raghunath Rai. As P.W. 2 Virendra Rai and his companions had reached near the village, the accused-appellants fired shots from the place where they were standing and saying that if anybody would advance further then he will be shot. Then Sanaullah (deceased A5) fired another shot which struck P.W. 1 Raghunath Rai. As P.W. 2 Virendra Rai and his companions had reached near the village, the accused-appellants fired shots from the place where they were standing and saying that if anybody would advance further then he will be shot. Upon intervention by the witnesses, accused-appellants left the spot calling names at P.W. 2 Virendra Rai and his companions. In the incident, Rama Shanker Rai (deceased) and P.W. 1 Raghunath Rai had received gunshot injuries while P.W. 3 Anil Rai and Surendra Rai had sustained simple injuries. Rama Shanker Rai (deceased) died due to gunshot injury while being taken for treatment to the Medical College) Gorakhpur while the injuries of injured-P.W. 1 Raghunath Rai were examined by P.W. 9 Dr. Navin Chandra at about 2 P.M. who prepared his injury report Ext. Ka15. We have already perused the injury reports of P.W. 2 Anil Rai and Surendra Rai who were examined by P.W. 7 V.P. Barnawal, Medical Officer P.H.C. Mah Nagar Azamgarh on 1.5.1981 and 8.5.1981 and who had also proved their injury reports as Ext. Ka7 and Ext. Ka8. Their injuries according to him were simple in nature. The injuries of P.W. 1 Raghunath Rai were examined by P.W. 9 Dr. Navin Chandra, Medical Officer, B.R.D. College, Gorakhpur on 30.4.1984 at about 2 P.M. He noted three injuries on his person to which we have already referred hereinabove. 43. As regards deceased-Rama Shanker Rai. post-mortem on his dead body was conducted by P.W. 5 Dr. A.K. Srivastava on 1.5.1981 at about 3 P.M. We have already referred to the injuries found by him on the body of the deceased and his opinion regarding the time and cause of his death which need not be reproduced again. We have also very carefully gone through the testimony of the four witnesses of fact and we have found that although they have substantially corroborated the prosecution story as spelt out in the written report of the incident Ext. Ka1 which was lodged by P.W. 2 Virendra Rai but none of them have spoken anything about the injuries sustained by four persons namely C.W. 1 Ram Dass Sahi, C.W. 2 Juber Alam, C.W. 3 Om Prakash Sahi and Imtiaz in the same occurrence. 44. D.W. 3 Dr. Ka1 which was lodged by P.W. 2 Virendra Rai but none of them have spoken anything about the injuries sustained by four persons namely C.W. 1 Ram Dass Sahi, C.W. 2 Juber Alam, C.W. 3 Om Prakash Sahi and Imtiaz in the same occurrence. 44. D.W. 3 Dr. S.M. Shukla who was posted as Medical Officer Emergency in District, Gorakpur had examined the injuries of C.W. 1 Ram Dass Sahi, C.W. 3 Om Prakash Sahi, C.W. 2 Juber Alam and Imtiaz on 30.4.1981 at 7:45 P.M., 7:55 P.M., 8:05 P.M. and 8:15 P.M. and proved the same as Ext. Kha6 to Ext. Kha-9. 45. Dr. Narendra Mohan Seth who was posted as Medical Superintendent, in Gorakhpur deposed that the X-ray report of C.W. 1 Ram Dass Sahi indicated that there was one pellet lying deep in the right orbit. 46. D.W. 5 Dr. P.C. Srivastava who proved the X-ray report of C.W. 1 Ram Dass Sahi as Ext. Kha10 stated that x-ray showed one pellet deep under the right eye. He also deposed that the injuries received by C.W. 1 Ram Dass Sahi could have been caused on 30.4.1981 at about 10 A.M. 47. According to the prosecution witnesses, the incident had taken place in the field of Dhelauram but D.W. 2 Ram Bhawan Singh, the tubewell operator has stated that on 28.4.1981, onion field of khasra Nos. 807, 808 and 825 Rafeeq of (deceased A1) were being irrigated from the water supplied by 'tubewell No. 174-B.G. situated in Kahla. The fields of Rafeeq (deceased A1) were being irrigated since 28.4.1981 continuously. Since 30.4.1981 from 8 A.M. water was being supplied to the aforesaid khasras. He had also deposed that he maintained the register in which he recorded the initial of the name of the tenant to whom water was supplied from the tubewell and obtained his signature before starting the supply. He had produced original register which had been brought by Chandra Deo Pandey, record keeper. He proved the entry made at S.N. 22 on page 6 of the register as Ext. Kha4 which pertained to 30.4.1981 and which unequivocally indicated that on 30.4.1981 water was being supplied to onion field of Rafeeq (deceased A1). On 30.4.1981, P.W. 1 Raghunath Rai, Rama Shanker Rai, Ram Naresh came to him on 30.4.1981 at about 10 A.M. and asked him to provide water for filling his empty fields. Kha4 which pertained to 30.4.1981 and which unequivocally indicated that on 30.4.1981 water was being supplied to onion field of Rafeeq (deceased A1). On 30.4.1981, P.W. 1 Raghunath Rai, Rama Shanker Rai, Ram Naresh came to him on 30.4.1981 at about 10 A.M. and asked him to provide water for filling his empty fields. He then said that water was already being supplied to Rafiq's field and hence it would therefore, be proper that they go and talk to Rafiq (deceased A1) and if Rafiq (deceased A1) has no objection, he would provide them water as required. He also stated that at that time P.W. 1 Raghunath Rai was having a gun. Rama Shanker Rai, P.W. 1 Raghunath Rai and others thereafter went towards the field of Rafiq (deceased A1) which was situated towards west of the tubewell. After about 15 minutes of their departure from tubewell, he heard the sounds of gunshots. After hearing the sounds of gunshot, he had gone to the tubewell of Hata. He also clarified that towards east of the tubewell, there exists a field belonging to Dhelauram on which some mango trees are planted and as long as he remained present in village Kahla, not a single shot was fired in the field of Dhelauram. 48. D.W. 2 Ram Bhawan Singh by no stretch of imagination can be termed as either inimical, partisan or interested witnesses. His evidence totally belies the prosecution case that the accused-appellants were the aggressors. Moreover, it is also proved from his evidence that it was the informant side which insisted that water be supplied to their field, although the field of Rafeeq (deceased A1) was being irrigated from the water supplied by the tubewell since 28.4.1981. It is also proved from his evidence that no one had shot anyone in the field of Dhelauram. This witness was cross-examined at great length by the D.G.C. (Criminal) but he could not elicit anything out of him which may discredit his credibility. 49. It is also proved from his evidence that no one had shot anyone in the field of Dhelauram. This witness was cross-examined at great length by the D.G.C. (Criminal) but he could not elicit anything out of him which may discredit his credibility. 49. Thus the facts of the case, attending circumstances and the evidence of the witnesses on record adduced by the prosecution as well as the defence side and also that of the Court witnesses, we find that four persons namely P.W. 1 Raghunath Rai, Rama Shanker Rai, P.W. 3 Anil Rai and Surendra Rai had received injuries and out of whom two persons namely Rama Shanker Rai and P.W. 1 Raghunath Rai had received gunshot injury and one person namely Rama Shanker Rai had died while injuries of P.W. 3 Anil Rai and Surendra Rai were found to be simple in nature. 50. From the evidence of C.W. 1 to C.W. 3 also it is proved that the informant's side was the aggressor. From the evidence of D.W. 1 Dr. S.C. Tripathi, D.W. 3 Dr. S.M. Shukla, D.W. 4 Dr. Narendra Mohan Seth and D.W. 5 Dr. P.C. Srivastava, it is also proved that the four persons namely C.W. 1 Ram Dass Sahi, C.W. 2 Juber Alam, C.W. 3 Om Prakash Sahi and Imtiaz had received injuries in the same incident. There is no suggestion from the side of the prosecution that their injuries were either self-inflicted or their injury reports were fabricated 51. We have very carefully scanned the statements of all the four witnesses of fact produced by the prosecution but we have found that none of them have come up with any explanation for the injuries received by the four persons on the side of the accused-appellants. The motive suggested by the prosecution for the accused-appellants to commit the crime in question also stood belied in view of the testimony of D.W. 2 Ram Bhawan Singh whose evidence has through out remained consistent and clinching. We do not find any reason to disbelieve the evidence of D.W. 2 Ram Bhawan Singh. 52. The motive suggested by the prosecution for the accused-appellants to commit the crime in question also stood belied in view of the testimony of D.W. 2 Ram Bhawan Singh whose evidence has through out remained consistent and clinching. We do not find any reason to disbelieve the evidence of D.W. 2 Ram Bhawan Singh. 52. Thus, we have no hesitation in holding that the true genesis of the incident has been suppressed and the prosecution has failed to come up with clean hands and hence neither the recorded conviction of surviving appellants Shabbir A2, Khursheed A3, Manzoor A7 and Nanhey A8 nor the sentences awarded to them can be sustained and are liable to be set aside. 53. In view of the foregoing discussion, this appeal stands allowed. The surviving appellants, Shabbir A2, Khursheed A3, Manzoor A7 and Nanhey A8 are acquitted of all the charges framed against them. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged. They shall however comply with the mandatory provision of section 437-A Cr.P.C. 54. There shall be however no order as to costs.