Prem Prakash, J.
1. Nine persons descending from a common ancestor and residents of village Kanhaipurwa, the hamlet of Udra Pachlai, police Circle Raghauli (district Hardoi) have directed this appeal against their convictions and sentences Under Sections 147, 148, 323, 324 and 302 read with Section 149, Penal Code upon the charge that on 24th December 1971, at about 11 P. M., in that hamlet, they were the members of an unlawful assembly and in prosecution of the common object of the assembly they committed the murder of Bharat, Gobardhan and Sukha and caused simple hurt to Chandrika, Sri Ram and Puttu, the weapons used being gun, pistol, spear, kanta and lathis ; they have been sentenced each to a term of life imprisonment Under Section 302, read with Section 149, Penal Code and to various terms of imprisonment under other counts which are to run concurrently.
2. There were six brothers Buddhi, Kindar, Lahauri, Sheo Dayal, Baldeo and Pohkar. Buddhi had two sous Bhulai and Lachman who were murdered in 1951, Shyam Lal, one of the accused being the son of the latter, Ram Charan is the son of Kindar and his two sons are Laiku and Balai. Subedar is the son of Lahauri and Lochan is the son of Sheo Dayal. Baldeo has a son Dullam whose son is Jai Cand, one of the accused ; his another son Sardar was murdered in 1937. Pohkar's two sons are Govind and Chhotey Lal. Sukha deceased was the son of Thakuri who was murdered in 1938 ; Gobardhan and Bharat deceased as also Sri Ram (P. W. 6) and Chandrika (P. W. 5) and Balwant (P. W. 1) are the sons of his brother, Pooran. Puttu (P. W. 2) is the son of another brother Janki who was murdered in 1938. Between the two families the relations were estranged. In the year 1937 Sardar was murdered in which Thakuri and Sukha were the accused. Thakuri was acquitted ; Sukha had to undergo imprisonment. A year later Thakuri and Janki were done to death in which several persons including the present accused Govind, Ram Gharan and Jai Chand had stood trial. Lachman, father of Shyam Lal, was a coaccused. In the year 1951 Lachman and Bhulai sons of Buddhi were done to death, In that murder case the three deceased, Gobardhan, Bharat and Sukha were accused along with Balwaut and 7 or 8 others. They were convicted and sentenced to six years' R. I. The murders had left an explosive irritant to embitter the relations between the two families and a day before the occurrence when Shyam Lal accused was grazing his cattle in the field of Balwant and Balwant remonstrated, Shyam Lal threatened him to revenge. Shyam Lal went away. In the fateful night at about 11 P. M. Chandrika, Gobardhan and Bharat were sleeping under the chapper in front of the chaupal when the appellants accompanied by an unknown person entered the chapper. Balwant (P. W. 1) was sleeping in his chaupal which opens in the chapper. A lantern was burning in the chapper. Shyam Lal was armed with a gun ; Jai Chand, Chhotey Lal and Govind were armed with pistols ; Subedar and Balai were armed with ballams ; Lochan, Laiku and Ram Charan were armed with lathis and the unknown man was armed with a kanta. They challenged those sleeping in the chapper and started causing injuries to Gobardhan and Bharat, lying on separate cots in the chhapper. They stood up and raised an alarm which attracted Sukha deceased whose house is 22 paces from the chabutra adjoining the chapper towards the north-east. Sri Ram (P. W. 6), Chandrika (P. W. 5) and Puttu (P. W. 2), whose house, were within a distance of 40 paces from the chabutra, and Balwant (P. W. 1), who was sleeping in the chaupal, rushed to the scene of occurrence. The shouts also attracted a number of other persons, they being Madho, Jagdish, Ramesh war and Ram Kishan (P. W. 7). In the light shed by the moon and in the illumination of the lantern and the torches, which two of the witnesses carried, the aforesaid persons saw the occurrence. Gobardhan and Bharat died in the chaupal and when Sri Ram, Chandrika and Puttu came to the place, they also received injuries. Sukha had come to the chabutra near the chaupal, but he was chased to his house by the assailants where deadly blows were inflicted upon him. in his barotha. Balwant (P. W. 1), however, escaped unhurt. After entrusting the dead bodies to the village chaukidar, Balwant went to the police station, 11 miles away where he dictated the report of the occurrence at 11.15 A, M., on the following day.
3. In this report he gave the background of the incident and the manner in which the crime was executed until the time the assailants escaped away. It sets out the names of those who were armed with firearms, those who were armed with lathis, those who used the spears and also the name of Vikram as one who was armed with a kanta. The time of the occurrence was disclosed as being 11 P. M. by when the moon was sheding its light.
4. After the case was registered, Sub- Inspector Radha Krishna (P. W. 9) took up the investigation ; he interrogated Balwant at the police station and rushed to the place of occurrence reaching there the same day. He performed the inquest on the dead bodies of Sukha, Gobardhan and Bharat ; the dead body of Sukha was lying in the barotha of his house near the main exit ; the dead body of Gobardhan was lying in the chapper while the dead body of Bharat was lying on the chabutra adjoining the chapper of the chaupal. After performing the inquest on the dead bodies, they were sent to the mortuary for post-mortem examination, Chandrika, Puttu, Ram Kishan and Sri Ram were next interrogated. The injured were sent for medical examination and treatment. He also took in his possession three fired cartridges and wads made over by Balwant. The lantern was shown to him by Balwant, which he found in working order and he gave it in supurdgi, On 26th December he prepared the site plan and recorded the statements of some other persons. Thereafter he submitted the charge-sheet.
5. Mention may at the out set be made of the results obtained at the post-mortem examination. The autopsy on the dead body of Sukha revealed the presence of incised wound 4' x 1 1/2 x mouth cavity deep cutting both nostrils, incised wound 1 3/4 ' x 1/2' x bone deep on the upper left jaw ; incised wound 2 1/2' x 1' x bone deep on the right of chin ; incised wound 1/2' x 1/4' muscle deep on the chin ; incised wound 3' x 1 1/4' x bone deep on the right side of neck, 3 1/4' below the right ear ; incised wound 2 1/2'x l'x bone deep on the outer side of left shoulder bone ; incised wound 3' x 11/2' x bone deep on the upper l/3rd of left forearm ; incised wound 2' x 1/2' x bone deep on the back upper part crossing the mid-line ; incised wound 1 1/4' x 1/4' x bone deep on the front upper l/3rd of right leg. There were punctured wounds two in number on the left side of neck cutting the trachea, There were seven gun-shot wounds in an area of 4' x 3' on the left lower half of arm. No blackening or tattooing was present ; four pellets were recovered from the left arm muscle. Multiple gun-shot wounds in an area of 5' x 4' on the outer side of upper half of right arm were found, Twelve pellets were recovered from the muscles of the right arm. The internal examination found 30z. of food material paste in the stomach ; the bladder was full. Faecal matter was sticking on the walls of large and small intestines. Gobardhan had incised wounds on the right side of neck and on cheek, they being four in number ; six incised wounds were on the left side of chest and abdomen ; gun-shot wounds 3' x 2 1/2' and 4' x 3' on the back of the lumber region causing fracture of the third lumber vertebrae and two gun-shot wounds on the right side of chest below the axilla were found. No blackening or tattooing was present, but pieces of waddings were recovered from the region of injury. Stomach contained 2 ounces of watery fluid ; the bladder was empty. Bharat had five punctured wounds on the left side of back of head ; another set of four punctured wounds on the left side of chest and abdomen and punctured wounds on the right side of abdomen and the right side of chest, as also on the right shoulder back side and on the outer side of middle of right arm. There was a gunshot wound 3' x 2 1/2' x abdominal cavity deep on the right side of abdomen ; blackening and tattooing were present around the wound, 17 pellets and 3 pieces of waddings were recovered from the cavity and iliac region. Stomach contained 2 ounces paste like food material. Faecal matter was present in the intestines and the bladder was full. In the opinion of Dr. K. R. Baranwal, whose statement made in the committal court, was tendered as Ext. Ka. 17 in evidence, deaths were due to shock and haemorrhage caused by the injuries which were sufficient in the ordinary course of nature to cause death. They coincided in duration with the time of occurrence.According to the medical opinion, fire-arms, sharp-pointed weapons like spear and sharpedged weapons like kanta were used by the assailants upon the deceased persons. Further, it would appear that it was not hit and run affair, but the assailants having come, there with a pre-determination to kill as many as they could, inflicted a number of blows and fired shots from the fire-arms they had had not only upon Bharat and Gobardhan, who were sleeping in the chapper adjoining the chaupal, but also upon Sukha who was chased by them to his barotha inside the house.
6. The other injured were Sri Ram (P. W. 6), Chandraika (P. W. 5) and Puttu (P. W. 2). Sri Ram bore a gun-shot wound 1/3 cm. in diameter on middle left outer part of left thigh. There was no tattooing or sign of burning present. Chandrika had a lacerated wound 2 1/2 cm x 1/4 cm. x skin deep on the middle of the forehead which had been caused by a blunt weapon. Puttu had a lacerated wound 3/4' cm. x 1/3 cm. x skin deep, a little above right forehead besides gun shot wounds 20 in number, 19 in front of the left leg and one on the right leg in the size 1/8 cm, in diameter. They were examined by Dr. D. Gunta, Medical Officer In-Charge, District Hospital, Hardoi on 26th Dec. between 3.15 P. M. and 3.35 P. M. According to him, lacerated wound had been caused by lathi and the gunshot wounds with a fire-arm. They coincided in duration with the time of the incident. The gun-shot wounds were caused to Sri Ram and Puttu, as told by the Doctor, from at a distance between 4 feet and 15 feet, It would, thus appear that the assailants were also wielding lathis, though the injuries caused by lathis did not prove fatal.
7. The plea of the accused was of an absolute denial of their guilt. According to them, a dacoity was committed in the house of the deceased in which three persons were killed and a false case had been foisted upon them to pay off old scores. They, however, admitted their relationship as alleged by the prosecution. They did not produce any evidence in defence to substantiate the plea that the deceased were the victims of the dacoity.
8. At the trial besides Balwant, the informant, the prosecution examined the three injured Puttu, Sri Ram and Chandrika and sought the corroboration of their testimony from Ram Kishan (P. W. 7) who ran to the place from his nearby house. His father had been convicted for the murder of Lachznan, the father of Shyam Lal accused.
9. The trial court upon an appraisal of the evidence held the presence of Balwant (P. W. 1) in the thatch as doubtful as also his claim that he saw the assault upon Bharat and Gobardhan, But placing reliance upon the ocular evidence of the three injured he returned a finding in accord with the prosecu. tion version. The case of dacoity as suggested by the appellants was negatived. Accordingly, he found that there was unlawful assembly armed with deadly weapons and that at about 11 P. M. the said unlawful assembly in prosecution of the common object committed the murders and caused injuries to others making them liable for the offences with which they had been charged.
10. Learned Counsel for the appellants contends that the trial court was in error in not giving due weight to the false implication of Vikram, the brother of Shyam Lal, one of the accused, although he happened to be in jail. In the F. I, R. Vikram's participation and his being armed with a kanta had been expressly described by the informant, Balwant. At the trial P. W. 1 denied the presence of Vikram at the scene of occurrence on that night. He declared that he had not mentioned the name of Vikram when he was dictating the report at the police station. The other witnesses, in particular the three injured, had neither in the course of investigation nor in the trial court deposed to the presence of Vikram amongst the assailants. The contradiction may be there between the information led by Balwant at the police station and his statement at the trial, but such a contradiction should affect the maker of the report more so when others who claimed to have seen the assailants did not from the very start state to his presence at and participation in the occurrence, It would not in any manner detract from the credibility of the other witnesses nor would it give a ground to the appellants to contend that the avowed eye-witnesses were attempting false implication. In that manner the submission based upon the alleged naming of Vikram by the informant in the F. I. R. should not, in our opinion, introduce any infirmity in the prosecution evidence.
11. It is next maintained that the partisan and inimical evidence of the alleged eyewitnesses, although the occurrence took place in the midst of the village abadi, could not be safely acted upon. It admits of no dispute that there was inimical strain in the relations between the two families. The witnesses are undoubtedly relations of the deceased, but that by itself does not make their evidence unreliable. It only casts a duty upon the court to scrutinise their evidence with more than ordinary care and in order to ensure against roping in of some innocent persons along with the guilty, we will have to test the evidence in the light of the probabilities and seek some assurance of this evidence from the other evidence on record qua each of the accused. Because the incident had taken place in the night, the inmates of the house would have in all probability reached there on the shouts for help raised by Bharat and Gobardhan sleeping in the chapper of their chaupal. That Sukha came from his house, which is at a distance of 22 paces from the chaupal and that he was chased and done to death in the barotha of the house demonstrates that the assailants had come there heavily armed as they were to do away with their opponents. The presence of Puttu, Chandrika and Sri Ram, who had sustained injuries in the incident, cannot be denied. Suffice it to say that the story narrated by them is not intrinsically incredible or inherently improbable in the main. The number of Kanta and spear injuries as also the number of gun shot wounds found upon the persons of the deceased should demonstrate that the assailants were many and that they were actuated with malice. The evidence is in accord with the medical opinion. This being the position, the evidence of the three injured persons stands on a credible basis. The plea that a dacoity was committed has to be stated in order to be merely rejected.
12. We may further recall that food paste material was found in the stomach of two of the deceased, they having, as told by the P. W. 1, taken rice and dal some time between 7 and 8 P. M The moon was shining in the sky that night from 11 P. M. to 11,49 P. M. The stomach contents confirm, in our opinion, the claim of P. W. 1 that the occurrence took place about three hours after taking the meals because ordinarily vegetable diet leaves stomach between 4 to 6 hours. The manner, in which the crime was executed, the attack made on Bharat and Gobardhan lying on the chaupal, the chase given to Sukha and then assaulting him in the barotha of his house is a pointer to the fact that light was available to enable the assailants to identify their victims. In that background it cannot, therefore, be said that the present is a case of mistaken identity or that the injured were drawing upon their imagination in naming the assailants. They will never fail to denounce the real culpritst. We are, therefore, unable to agree with the contention of learned Counsel that the testimony of the three injured could not be safely acted upon in the present.
13. Counsel has next Invited our attention to the gunshot wounds found upon the deceased and injured Sri Bam, in his endeavour to show that the firing was not done from such short distances as the witnesses state so as to enable them to mark the identity of the culprits. In particular it has been pointed out that Sri Ram (P. W. 6) received the gun-shot wound from a distance and, therefore, he could not have reached the chabutra and seen the assailants. The gun-shot wounds found upon Gobardhan bore no blackening or tattooing marks, but from two of them waddings were taken out besides a number of pellets. Two of the gun-shot wounds were 3' x 2 1/4' and 4' x 3 1/2' on the middle of right arm and on the middle of left thigh respectively ; and in the case of Bharat blackening and tattooing was present in the gun-shot wound on the right side of abdomen. Pieces of waddings from the cavity and iliac region had also been recovered. No general rule, as observed by Taylor, can be laid down about the distance from which a fire-arm is discharged, but as observed by Modi in Medical Jurisprudence, a revolver or pistol discharge within about 12 inches leaves blackening and, in the case of a gun, if it is discharged from a distance of not more than three feet. 'At a distance of one to three feet small shots make a single aperture with irregular and lacerated edges corresponding in size to the bore of the muzzle of the gun, as the shot enter as one mass, but are scattered afar after entering the wound and cause great damage to the internal tissues' (Vide Modi's Medical Jurisprudence and Toxicology, Nineteenth Edition, page 227). The gun-shot wounds upon Gobardhan show that shots entered as one mass causing great internal damage to the tissues underneath, We are, therefore, unable to hold that the gunshots were fired upon Gobardhan and Bharat from long distances. Indeed, the fact that the assailants caused them a number of punctured and incised wounds shows that they were very near the victims who could not run away for long distances from the place where they were sleeping. The circumstances inherent in the prosecution story lead to no other conclusion than the one that the gunshots were fired from the close range. As regards Sri Ram, Dr. D. Gupta has said that the gun injury was caused to him from within a distance of four feet to fifteen feet because the wound did not bear any burning or tat- tooing mark, the diameter of the wound being 1/3 cm. But even then his claim that he Saw the assailants cannot be outright rejected for two reasons ; first, because the entire occurrence took place within a short distance from the thatch where Bharat and Gobardhan were sleeping and second, Sukha was chased to his barotha ; the witness being his nephew and there being moonlight available as also the light shed by the burning lantern, it was possible for Sri Ram to recognise the culprits. Sri Ram was living in the house in the northern proximity of the house occupied by Sukha deceased. Considered in that manner, we are, therefore, of the view that Sri Ram had had the opportunity to recognise the assailants and see the various incidents of the crime.
14. That Chandrika (P. W. 5) and Puttu (P. W. 2) came in close contact with the assailants is borne out by the fact that each of them sustained lathi injuries on their forehead. Without any inconsistency Chandrika has stated that after the arrival of Puttu, Sri Ram and Sukha on the spot, Lachan had inflicted a lathi blow upon him. Likewise, Puttu has without any inconsistency declared that when he came to the spot, the assailants were assaulting Gobardhan ; Sukha had also rushed there. Shyam Lal fired at him and Ram Charan gave a lathi blow on his head. The defence has not been able to elicit any thing from the cross-examination of the witnesses that they were improving upon the case at the trial or they were indulging in embellishments departing from what they stated in the course of investigation. Viewed in that light, the contention of the learned Counsel that the three injured did not see the occurrence and the assailants cannot be accepted as correct and it is accordingly repelled.
15. Now, the next question is about the complicity of the individual accused in the crime. There being an intense strain in the relations between the two families and all the accused appellants are related with one another, in order to eliminate the chances of roping in of innocent men along with the guilty, it would be better, as a rule of caution, to convict only those to whom overt acts have been, without any shred of inconsistency, ascribed by the three injured witnesses whose presence at the scene of occurrence cannot be gainsaid. Shyam Lal fired at Puttu and Sri Ram (vide Puttu P. W. 2, and Sri Ram, P. W. 6). Govind, as told by Sri Ram, armed with a pistol, fired at Bharat. Lochan, as stated by Chandrika (P. W. 5), had inflicted a lathi blow upon him. Ram Charan, as stated by Puttu (P. W. 2), gave a lathi blow to him. Chandrika has, no doubt, said that Laiku and Ram Charan had beaten Puttu and Sri Ram with lathis, but since Sri Ram did not bear any lathi injury and, as told by Puttu, it was Ram Charan who had given him lathi blow on his head, it seems difficult to accept the statement of the witness that Laiku had caused any lathi injury to any of them. Sri Ram has stated that Laiku had caused lathi injury to Gobardhan, but since Gobardhan did not bear any such injury, it becomes doubtful whether he at all participated in the occurrence. Analysed in that manner, the evidence, in our opinion, brings home specific overt acts to Shyam Lal, Lochan, Bam Charan and Govind and not to Jai Chand and Chhotey Lal alleged to be armed with pistols and Laiku alleged to have been armed with lathi. This, however, does not mean that we are casting any reflection on the credibility of any of the eye-witnesses. They may have been amongst the assailants, but in view of the fact that the evidence does not satisfy the test which we have laid to determine the culpability of each of the accused, a reasonable doubt arises as regards their participation which must be given to them.
16. Balai and Subedar, as stated by all the injured witnesses, were armed with spears, The number of punctured wounds found upon Sukha and Bharat strengthens, in our opinion, the claim of the eye-witnesses that they were present there and in prosecution of the common object of the unlawful assembly they inflicted spear blows. In our opinion, that circumstance is sufficient to show their presence at and participation in the assault
17. For the discussion in the above, the convictions and sentences given to Jai Chand, Chhotey Lal and Laiku are set aside and their appeal is allowed. They are on bail. They need not surrender to their bails. Their bails bonds are cancelled and sureties discharged.
18. The convictions and sentences awarded to Shyam Lal, Subedar, Balai, Govind, Lochan and Ram Charan are maintained and their appeal is dismissed. They are on bail. They shall surrender to their bails forthwith to serve out the unexpired portion of their sentences. The Chief Judicial Magistrate, Hardoi, shall submit compliance report within six weeks from today.