JUDGMENT : 1. Vide this judgment above mentioned two appeals would be disposed of, as they have arisen out of common judgment/order dated 30.8.1989 passed by the trial court. 2. Prosecution story, in brief, is that on 10.6.1988 at about 5:00 PM, Lalti, Kashi, Kartar Singh, Komal, Prem Singh and Gola came to the house of the complainant Soran armed with sticks, guns and pistols. Kashi and Lalti were armed with country made pistols, whereas, Kartar Singh, Prem Singh and Komal were armed with 12 bore guns. Gola was armed with a stick. Lalti said to the complainant that his daughter-in-law was taunting him with regard to his losing the election. The complainant, his son-in-law Dariyab and daughter Shursho requested Lalti not to fight, with folded hands, but the accused did not pay any heed to them. Accused started firing from their weapons. Komal fired at Dariyab from his 12 bore gun. Prem Singh fired from his 12 bore gun at Shakuntala. Kashi fired from his country made pistol at Kallo and Rajjo. Lalti fired from his country made pistol at Kusma. The complainant in order to save himself went to the roof of the house of his brother Heera Lal. Accused continued firing from their weapons. Kartar Singh fired at Heera Lal while standing on the roof of his house. As a result, Heera Lal suffered fire arm injury. Gola gave stick blows to the complainant. 3. After completion of investigation and necessary formalities, challan was presented against Prem Singh, Komal, Kashi, Lalti, Kartar Singh, Gola and Patmal and Biri @ Veeri. 4. Charges were framed against the accused under Sections 148, 302 read with Section 149, 307 read with Section 149 and 323 of Indian Penal Code, 1860. Charges were also framed against the accused Kashi and Kartar Singh under Section 3/25 of Arms Act, 1959. 5. Accused did not plead guilty to the charges framed against them and claimed trial. 6. In order to prove its case, prosecution examined twenty-seven witnesses during the trial. 7. After the close of prosecution evidence, accused when examined under Section 313 Cr.P.C. prayed that they had been falsely involved in this case due to enmity. Accused examined two witnesses in their defence. 8. The trial court vide impugned judgment dated 30.8.1989 ordered the acquittal of accused Gola, Patmal and Biri @ Veeri of the charges framed against them. 7. After the close of prosecution evidence, accused when examined under Section 313 Cr.P.C. prayed that they had been falsely involved in this case due to enmity. Accused examined two witnesses in their defence. 8. The trial court vide impugned judgment dated 30.8.1989 ordered the acquittal of accused Gola, Patmal and Biri @ Veeri of the charges framed against them. So far as accused Komal and Kartar Singh are concerned, they were convicted and sentenced qua the offence punishable under Section 302 IPC and were acquitted of the other charges framed against them. So far as accused Prem Singh is concerned, he was convicted and sentenced qua offence punishable under Section 307 IPC and was acquitted qua other charges framed against him. So far as accused Kashi and Lalti are concerned, they were convicted and sentenced qua offence under Section 324 IPC and were acquitted of other charges framed against them. Hence, the appeal has been filed by the accused Kartar, Komal, Prem Singh, Kashi and Lalti challenging their conviction and sentence as ordered by the trial court, whereas, the State has filed the appeal challenging the acquittal of accused Gola, Patmal and Biri @ Veeri and have also sought conviction of the accused Prem Singh under Section 302 IPC and all the accused for offence under Section 148/149 IPC. 9. So far as accused Lalti is concerned, he died during the pendency of the appeal and appeals qua him were disposed of as having abated vide order dated 12.4.2010. 10. Learned State Counsel who is assisted by the learned counsel for the complainant has submitted that the prosecution had been successful in proving its case. All the accused had come to the spot armed with weapons and they all shared common intention to commit the crime. Accused had committed the murder of three persons and ten persons had suffered injuries. So far as accused Prem Singh is concerned, he had fired at Shakuntala and as a result, she had died. The trial court has erred in ordering conviction of Prem Singh under Section 307 IPC, whereas, he was liable to be convicted and sentenced qua offence punishable under Section 302 IPC. So far as accused Gola is concerned, he had been specifically named in the FIR and as per the complainant as well as eyewitnesses, he had inflicted injury to the complainant. 11. So far as accused Gola is concerned, he had been specifically named in the FIR and as per the complainant as well as eyewitnesses, he had inflicted injury to the complainant. 11. Learned counsel for the accused/appellants has submitted that the prosecution had miserably failed to prove its case. In-fact, Girendra P.W. 9 was not having good relations with his father Heera Lal. Number of cases were pending between them. Due to enmity, Girendra P.W. 9 had fired at the deceased and thereafter, accused had been falsely involved in this case. So far as Patmal and Biri @ Veeri are concerned, they were not named in the FIR. Shakuntala had died after ten days of the incident. Shakuntala was discharged from the hospital in a satisfactory condition and had died on account of negligence of the doctors. In-fact, the incident is alleged to have taken place in two parts. Hence, no offence under Section 148 IPC was made out. 12. Complainant Soran while appearing in the witness box as P.W. 1 has deposed as per the contents of the FIR. Injured witnesses namely Indira P.W. 3, Rajwati P.W. 4, Kesar P.W. 5, Kallo P.W.7, Kushma P.W. 8, Sukkho P.W. 11 and Smt. Brahmwati P.W. 12 have corroborated the statement of the complainant with the regard to participation of the accused in the crime. 13. The statement of Shakuntala (deceased) was recorded under Section 161 Cr.P.C. A perusal of the statement Exhibit-P/67 reveals that she had deposed that on 10.6.1988 at about 5:00 PM she was present in the room on the first floor alongwith her husband. In the meantime, Lalti, Kashi, Prem Singh, Komal, Kartar Singh armed with guns and Gola who was armed with stick came in front of their house and started abusing her father-in-law Soran. They started inflicting injuries to Soran. Her father-in-law pleaded a lot by folded hands, but Gola inflicted a stick blow to Soran. Then they fired towards house of Heera Lal and as a result, ladies suffered injuries. Thereafter, fight ended and the said persons went towards their house. She went to the roof to dry Sewaiyan. At that time, Prem Singh, who was standing on the roof fired at her. Komal fired at Dariyab. Kartar Singh fired at Heera Lal. Thereafter, she lost her consciousness and was removed to hospital for treatment. 14. Dr. Thereafter, fight ended and the said persons went towards their house. She went to the roof to dry Sewaiyan. At that time, Prem Singh, who was standing on the roof fired at her. Komal fired at Dariyab. Kartar Singh fired at Heera Lal. Thereafter, she lost her consciousness and was removed to hospital for treatment. 14. Dr. Bhopal Singh P.W. 14 deposed that on 18.6.1988 he had conducted autopsy on the dead body of Dariyab aged 30 years vide Post Mortem Examination Report Exhibit-P/32. 15. A perusal of the Post Mortem Report (Exhibit-P/32) reveals that the deceased Dariyab had suffered following injuries:- "External injuries (Entry wound of fire-arm) - Fire arm wounds present on the following parts of the body having 0.3 cm diameter each and enters the body as individual pellets producing separate openings in an area of 39" x 29" in diameter. One on neck, three on left chest above nipple, eight pellet on nipple left chest, three left abdomen, 2 on thigh left. Two on left knee, one right chest along shoulder, two on right chest parallel to nipple and two on right abdomen. All wounds are on front side and slightly from left side without causing blackening and scratching on latrine of the surrounding skin. Fire arm wounds also present on both forearm each has four wounds. Left Lung - Nine punctured lacerated wounds caused by firearm projected are present on front side. Right Lung- Three punctured lacerated wounds caused by firearm projectiles are present on front side. Cavity has blood on both side. Heart - Two punctured lacerated wounds caused by firearm projectiles are present on front side. About 400 ltr of blood present in the pericardial sac. Punctured lacerated wounds present on left ventricle and right auricular. Two metallic projected wounds from them. Three punctured lacerated wounds are seen on left abdomen and two on right side abdomen. Small Intestine - Three punctured lacerated wound are seen on left side and two on right side with contusion with clotted blood around the wounds caused by fire arm projectiles." 16. As per opinion of the doctor, the cause of death was hemorrhage and shock as a result of fire arm wounds. 17. Dr. Bhopal Singh P.W. 14 further deposed that on 11.6.1988 he had conducted autopsy on the dead body of Heera vide Post Mortem Examination Report Exhibit-P/34. 18. As per opinion of the doctor, the cause of death was hemorrhage and shock as a result of fire arm wounds. 17. Dr. Bhopal Singh P.W. 14 further deposed that on 11.6.1988 he had conducted autopsy on the dead body of Heera vide Post Mortem Examination Report Exhibit-P/34. 18. A perusal of the Post Mortem Report (Exhibit-P/34) reveals that the deceased Heera had suffered following injuries:- "External injuries (Entry wounds of firearm) - Fire arm wounds present on the following parts of the body having 0.3 diameter each and enters the body as individual pellets producing separate openings in an area of 35" x 6" in diameter without causing blackening and scratching or tattooing of the surrounding skins- 1. One on right chest 10" below shoulder joint and 4" away from anterior axillary fold, 56" above from right heal. 2. One on right chest 6 cm away from nipple right side and 52" above from the right heal. 3. One fire-arm wound 9 cm below right nipple and 49" above from the right heal. 4. One fire-arm wound is 18 cm below right nipple and 44" above from the right heal. 5. One fire-arm wound is on right thigh lower 1/3 front side." 19. As per opinion of the doctor, the cause of death was shock and hemorrhage as a result of fire arm wounds of chest right side. 20. Shakuntala had died on 20.6.1988. Dr. Bhopal Singh P.W. 14 further deposed that on 22.6.1988 he conducted autopsy on the dead body of Shankuntala vide Post Mortem Examination Report Exhibit-P/37. 21. A perusal of the Post Mortem Report (Exhibit-P/37) reveals that the deceased Shakuntala had suffered following injuries:- "The healed firearm entry wounds having scars tissues over them are present on the following parts of the body having 0.2 diameter and spreads in an area of 30" x 11" in diameter. - 3 on left shoulder outer side, one in left arm. Ten on left chest and left abdomen and left back on mid axillary and posterior axillary line and 24 on left hip joint outer, back and pubic region on front side. The fire-arm wounds are ante mortem, duration within 1 to 2 weeks. About 1 liter clotted blood is present in the stomach. The mucosa of stomach is swollen edema torn with petechial hemorrhage. About 15 ulcers and erosion are present. The fire-arm wounds are ante mortem, duration within 1 to 2 weeks. About 1 liter clotted blood is present in the stomach. The mucosa of stomach is swollen edema torn with petechial hemorrhage. About 15 ulcers and erosion are present. The twenty eight week female dead foetus is present. The foetus is 37 cm long. The skin is dusky, thick. The eye lids are separated, eye lashes are present. The nails are thicker. Two projectiles recovered from the hip joint of left side and rest of them lost in tissues." 22. As per opinion of the doctor, the cause of death was shock as a result of excessive hemorrhage in stomach. 23. Exhibit-P/13 is the medico-legal examination report of injured Kalla, Exhibit-P/14 is the medico-legal examination report of injured Jai Singh, Exhibit-P/15 is the medico-legal examination report of injured Keshav, Exhibit-P/17 is the medico-legal examination report of injured Kushma, Exhibit-P/18 is the medico-legal examination report of injured Kallo, Exhibit-P/20 is the medico-legal examination report of injured Brahmwati, Exhibit-P/24 is the medico-legal examination report of injured Sushila, Exhibit-P/25 is the medico-legal examination report of injured Rajjo, Exhibit-P/28 is the medico-legal examination report of injured Indira and Exhibit-P/30 is the medico-legal examination report of injured Soran Singh. A perusal of the said reports as well as reports given after X-ray examination of the injured reveal that all the injured had suffered simple injuries. Injured Kallo, Brahmwati, Sushila and Rajjo had suffered fire arm injuries. Post Mortem Examination Reports as well as medico-legal reports were proved by Dr. Bhopal Singh P.W. 14. 24. Ramswaroop Yadav P.W. 27 the investigating officer has deposed with regard to the investigation conducted by him. He deposed that when he reached the spot at 8:30 PM on 10.6.1988, he found that the dead body of Heera Lal was lying in his house and dead body of Dariyab was lying in Varandah of Soran. Injured were removed to the hospital for treatment. In his cross-examination he deposed that Shakuntala was lying in an injured condition in the house. 25. Other official witnesses have deposed with regard to the investigation conducted in the case. 26. Accused had examined Awadh Bihari Sharma D.W. 1 and Rameshwar Prasad D.W. 2 to bring on record documents relating to litigation between Girendra P.W. 9 and the deceased. In his cross-examination he deposed that Shakuntala was lying in an injured condition in the house. 25. Other official witnesses have deposed with regard to the investigation conducted in the case. 26. Accused had examined Awadh Bihari Sharma D.W. 1 and Rameshwar Prasad D.W. 2 to bring on record documents relating to litigation between Girendra P.W. 9 and the deceased. Although, during the cross-examination of eyewitnesses, questions were put to them with regard to the fact that Girendra P.W. 9 had fired at the deceased, but the accused when examined under Section 313 Cr.P.C. had not pleaded in this regard. Apart from the suggestions put to the witnesses in their cross-examination with regard to the involvement of Girendra P.W. 9 in the crime, there is no other material on record to substantiate the suggestions put to the eyewitnesses with regard to the involvement of Girendra P.W. 9 in the crime. The statements of the eyewitnesses with regard to the manner of incident inspire confidence. Injured/eyewitnesses have withstood the test of cross-examination. Hence, the statements of the injured/eyewitnesses inspire confidence with regard to the manner of incident. 27. The learned trial court had rightly ordered the acquittal of the accused qua charge framed against them under Section 148 IPC. From the evidence on record, it transpires that the incident had occurred in two parts. Initially, accused Lalti and Kashi had fired at injured Kallo, Brahmwati, Sushila and Rajjo. From the statement Exhibit-P/67 of Shakuntala (deceased), it is evident that the dispute had ended and she had gone to the roof to dry Sewaiyan. So far as accused Prem Singh and Komal are concerned, they went to the roof of the house of Lalti and fired at Dariyab and Shakuntala, respectively. So far as accused Kartar Singh is concerned, he climbed on the roof of his house and fired at Heera Lal. Thus, when the accused Kartar Singh, Prem Singh and Komal had fired from their weapons, at that time, they did not share any common intention with the other accused to commit the offence of murder. Learned trial court rightly came to the conclusion that the said accused were responsible for their individual act. They reached the roof without sharing any common intention with the other accused and fired from their guns at the deceased. Learned trial court rightly came to the conclusion that the said accused were responsible for their individual act. They reached the roof without sharing any common intention with the other accused and fired from their guns at the deceased. Hence, the finding of the learned trial court, whereby, accused were acquitted of the charge framed against them under Section 148 IPC is upheld. 28. In the present case, although, the statements of the injured were recorded after eight days of the incident under Section 161 Cr.P.C., but the fact remains that the FIR was lodged without any delay. Incident had occurred at 5:00 PM on 10.6.1988, whereas, incident was reported to the police at 9:00 PM. Thus, the statement of the complainant was recorded by the police at 9:00 PM. Hence, the argument raised by the learned counsel for the accused appellants that the delay in recording the statements of the injured under Section 161 Cr.P.C. is fatal to the prosecution case, is liable to be rejected. 29. So far as the acquittal of accused Patmal and Biri @ Veeri is concerned, the learned trial court rightly ordered their acquittal, as they were not named in the FIR. The said accused are also sons of Hari Singh and are, thus, brothers of the accused Lalti etc. Had accused Patmal and Biri @ Veeri been present at the spot, their names would have been disclosed by the complainant at the time of lodging the FIR, as the said accused were not strangers to the complainant. In-fact, the complainant party as well as the accused party, except accused Komal are from one family. Kanwar and Bota were brothers. Accused form family of Bota, whereas, the complainant party forms family of Kanwar. Hence, the learned trial court had thus, rightly ordered the acquittal of accused Patmal and Biri @ Veeri. 30. So far as accused Kartar Singh and Komal are concerned, they were convicted and sentenced qua offence punishable under Section 302 IPC. The said accused have been duly named in the FIR and all the injured/eyewitnesses have deposed with regard to the fact that the accused Kartar Singh had fired at Heera Lal, whereas, accused Komal had fired at Dariyab. The ocular version is duly corroborated by medical evidence. The said accused have been duly named in the FIR and all the injured/eyewitnesses have deposed with regard to the fact that the accused Kartar Singh had fired at Heera Lal, whereas, accused Komal had fired at Dariyab. The ocular version is duly corroborated by medical evidence. As per Post Mortem Examination Reports of the deceased Heera and Dariyab, it is evident that both of them had died on account of fire arm injuries. It is the case of injured/eyewitnesses that both Kartar Singh and Komal were armed with 12 bore guns and had fired at deceased Heera Lal and Dariyab, respectively. 31. So far as accused Komal is concerned, no recovery of weapon was effected from him during the investigation. 12 bore gun was recovered at the instance of accused Kartar Singh vide Exhibit-P/11, but the said recovery was disbelieved by the trial court. However, the oral testimony of the injured/eyewitnesses with regard to the participation of the accused Komal and Kartar Singh inspire confidence. Hence, the conviction of the accused Komal and Kartar Singh under Section 302 IPC is upheld. 32. So far as accused Prem Singh is concerned, he had fired at Shakuntala while standing on the roof of the house of Lalti. A perusal of the Post Mortem Examination Report of Shakuntala reveals that she was carrying pregnancy of twenty-eight weeks. She had suffered fire arm injuries on various parts of her body. About one liter clotted blood was found present in her stomach. Since the accused had fired from his gun at Shakuntala and she had suffered fire arm injury on various parts of her body, including abdomen and chest, it can be said that the accused Prem Singh had the intention to commit the murder of Shakuntala, who was pregnant at the time of incident. The fact that Shakuntala had died after ten days and the fact that she had been discharged from the hospital does not lead to inference that accused Prem Singh had no intention to commit her murder. The cause of death of deceased Shakuntala was hemorrhage in her stomach. Hence, we are of the opinion that the learned trial court erred in ordering the conviction and sentence of accused Prem Singh under Section 307 IPC, whereas, he was guilty of offence punishable under Section 302 IPC. Thus, the accused Prem Sigh is convicted of offence punishable under Section 302 IPC. Hence, we are of the opinion that the learned trial court erred in ordering the conviction and sentence of accused Prem Singh under Section 307 IPC, whereas, he was guilty of offence punishable under Section 302 IPC. Thus, the accused Prem Sigh is convicted of offence punishable under Section 302 IPC. 33. So far as accused Kashi is concerned, he was rightly convicted qua offence under Section 324 IPC, as he was armed with country made pistol at the time of incident and had fired at the injured ladies. Injured/eyewitnesses in this regard have duly deposed with regard to participation of accused Kashi in the crime. Injured had suffered simple injuries. Hence, the conviction of accused Kashi as ordered by the trial court is upheld. 34. So far as accused Gola is concerned, he had inflicted stick blow on the person the complainant Soran. In this regard, the complainant as well as other eyewitnesses have supported the prosecution case during the trial. Accused Gola is duly named in the FIR. The complainant has stated in his statement during trial that the accused Gola had given a stick blow on his elbow. The said version of the complainant is corroborated by the medical evidence, as is evident from Exhibit-P/30 medico-legal report of injured complainant Soran. The version of the complainant in this regard is corroborated by other eyewitnesses also. Hence, we are of the opinion that the learned trial court has erred in ordering the acquittal of the accused Gola. Accused Gola is held guilty of offence punishable under Section 323 IPC and is convicted thereunder. 35. Accordingly, the conviction and sentence of accused Komal and Kartar Singh as ordered by the trial court are upheld. So far as accused Prem Singh is concerned, he is convicted of offence punishable under Section 302 IPC and is sentenced to undergo imprisonment for life and pay a fine of Rs. 500/- and in default of payment of fine to further undergo rigorous imprisonment for six months. His conviction and sentence under Section 307 IPC is set aside. So far as accused Gola is concerned, he is convicted qua offence punishable under Section 323 IPC and is sentenced to undergo imprisonment already undergone by him. So far as accused Kashi is concerned, his conviction under Section 324 IPC, as ordered by the trial court is upheld. His conviction and sentence under Section 307 IPC is set aside. So far as accused Gola is concerned, he is convicted qua offence punishable under Section 323 IPC and is sentenced to undergo imprisonment already undergone by him. So far as accused Kashi is concerned, his conviction under Section 324 IPC, as ordered by the trial court is upheld. It has been brought to our notice by the learned counsel for the appellants that the accused Kashi has suffered heart attack and is now aged about 67 years and has already undergone more than eleven months of sentence. Accordingly, keeping in view the facts and circumstances of the case, sentence of accused Kashi is reduced to the period already undergone by him. 36. Both the appeals stand partly allowed in above mentioned terms.