I.P. Singh, J.
1. Crl. Appeal No. 1412 of 1477 has been preferred by Shankar, Ram Sahai and Sukha convict-appellants, while Crl. Appeal No. 1413 of 1977 has' been filed by Rajju convict-appellant against the judgment and order of Sri N.N. Sharma, the then Sessions Judge, Moradabad dated 17-6-1977 passed in S.T.N. 791 of 1976: State v. Rajju and three others, convicting and sentencing each of the three appellants of Crl. Appeal No. 1412 of 1977 under.Sections 323/34, I.P.G to one year R. I.; and convicting and sentencing Rajju, appellant, of Crl. Appeal No. 1413 of 1977 under Section 302 I.P.C. to imprisonment for life and under Section 323/34, I.P.C. to one year R.I.
2. Since the learned Sessions Judge acquitted Ram Sahai Shankar and Sukha of the charge under Section 302 read with Section 34, I.P.C, so the State Government filed Govt. Appeal No. 2237 of 1977 with the prayer that on the facts and circumstances of the case, they also be convicted and sentenced under those sections.
3. The prosecution case, in brief, is that one Kanhai resident of village Sujanpur, P. S. Hayatnagar, District Moradabad was possessed of 70 bighas of land. It was in two parts i.e. 40 bighas and 30 bighas. 40 bighas of land was rather unfertile so he sold it away and purchased 21 bighas of fertile land in village Kaserwa. He divided the said 21 bighas of land in equal half shares between his two sons Leela deceased and Rajju appellant. Shankar and Ram Sahai appellants are his sons. Leela deceased was married to Smt. Bhagwati P.W. 4. Her step brother is Sukha appellant. Rampal P.W. 3 and Kallu alias Kalwa P.W. 5 are the sons of Leela deceased.
4. The other 30 bighas piece of land was under the cultivation of Kanhai. He happens to live with his son Rajju appellant. For this reason, practically, Rajju appellant was cultivating that land and appropriating its usufruct. Leela deceased wanted half share in the said land. Rajju appellant would not oblige him. Leela deceased came to file a suit for partition of the said land of 30 bighas. The said suit was pending at the time of the incident.
5. It is further alleged that Rajju had borrowed.a loan of Rs. 7,000/- from moneylender. He wanted to pay of the loan after selling 20 bighas of land out of the said 30 bighas. Leela deceased would not permit him to part with said 20 bighas of land. The prosecution allegations are that on account of the said dispute, Rajju and his sons Shanker and Ram Sahai, the three appellants had once belaboured Leela deceased. However, the village panchayat intervened and pacified the parties and the matter was not brought to the Court.
6. In the evening of 26-8-76, Rajju appellant and Leela deceased happened to exchange hot words between them over the matter of the said proposed disposal of 20 bighas of land by Rajju appellant. The dispute, that evening, ended with the three appellants extending threats to Leela deceased for dire consequences if he came in their way of disposal of that land.
7. In the morning of 27-8-76, Leela deceased along with his sons Ram Pal, P.W. 3 and Kallu alias Kalwa, P.W. 5 and his daughter Anandi had gone to their fields, Smt. Bhagwati, P.W, 4, the wife of Leela deceased, and his another daughter Smt. Kela were left at their house. In their absence, both these ladies were belaboured by Rajju and Ram Sahai appellants. At about 10 A.M., Smt. Kela contacted her father Leela in the field and informed him about the said assault on her and on her mother by the two appellants. Leaving both Smt. Kela and Anandi at the field, Leela deceased accompanied by his sons Rampal, P.W. 3 and Kallu alias Kalwa, P.W'. 5 proceeded towards their house. It is alleged that they were ambushed by the four appellants under the cluster of trees near the well known as 'Kutti ki Kuiyan'. At that time, Rajju appellant carried gun while the other three appellants were armed with lathies. Leela deceased and his sons Rampal, P.W. 3 and Kallu alias Kalwa, P.W. 5 were belaboured by the three appellants carrying lathies. On their alarm, Manohar Lal, P.W. 6 and Babu, P.W. 7 and one Bholey, reached the spot. They Were in time to witness the said assault by lathies. In the end, Rajju fired a gun shot killing Leela deceased on the spot. On the intervention of the incoming witnesses, the appellants ran away. Blood had fallen at the place of the assault.
8. The oral F.I.R. of this incident was lodged by Rampal, P.W. 3 at P. S. Hayatnagar, 8 miles away the same day at 1.45 P.M.
9. Rampal was medically examined by Dr. Bhagwat Swarup, P.W. 1, Medical Officer, Primary Health Centre, Sambhal (Moradabad) on 27-8-76 at 4.45 P.M. Three contusions and one (sic) pain were found on different parts of his body. The injuries were simple and were caused by hard blunt object. Duration was half day.
10. Kalwa, P.W. 5 was examined by the same doctor the same day at 10.30 P.M. He complained of pain on upper one third of his right arm as well as on upper one third of his right thigh. However, no external mark of any injury was seen on his person.
11. Smt. Bhagwati, P.W. 4 was medically examined the same day at 10.45 P.M. by the same doctor. She suffered one contused wound, two contusions and two abrasions on different parts of her body. The injuries were simple and were caused by blunt object. Duration was half day.
12. Post mortem examination on the dead body of Leela deceased was conducted by Dr. B.C. Singh Yadav, P.W. 2, Medical Officer, E.S.I. Dispensary, Moradabad on 28-8-76 at 3.30 P.M. The probable time since death was. about one day. The Doctor in his statement stated that death could occur on 27-8-76 at about 10 A.M. The following ante-mortem injuries were found on his person:
1. Gun shot wound 5 cm X 6 cm. cavity deep on the middle of chest 1.5 cm below the upper end of membrane sterni blackening and scorching present around the wound body of sternum sternal end, 3, 4, 5 ribs of both' sides fractured.
2. Lacerated wound covering whole of terminal phalanx of left middle finger, bone deep, with underneath fractured.
3. Contusion 4 cm X 3 cm on the right side of abdomen in axillary line just below the rib margin.
4. Abrasion 1.5 cm X 2 cm on the back and middle of right hand.
5. Abrasion 1 cm X 1 cm on the outer side of left wrist.
6. Abrasion 1 cm X 4 cm on the front of right shoulder.
7. Abrasion 6 cm X 8 cm on the back of head. '
13. The internal examination revealed that the left lung was ruptured. Eight shots were recovered from there. Aorta- and superior venacava were ruptured. 10 shots were recovered from the left cavity of the heart. Intestines were distended and contained faecal matter. Bladder contained urine about two ounces. In the opinion of the Doctor, death was due to shock and haemorrhage as a result of gunshot injury in the chest. The Doctor has stated that the gunshot injury in the chest was sufficient in the ordinary course of nature to cause instant death. Gunshot wound, in the opinion of the Doctor, could be from about a distance of 4 feet.
14. The appellants denied their participation in the said incident. They pleaded that they were falsely implicated in this case due to enmity. However, the appellants did not lead any evidence in defence.
15. The prosecution, in order to establish their case in all examined 13 witnesses including Rampal, P.W. 2 injured, Kallu alias Kalwa, P.W. 5, Manohar Lal P.W. 6 and Babu, P.W. 7 as eye-witnesses of the occurrence. The learned Sessions Judge after appreciating the evidence on record and circumstances of the case, convicted and sentenced the four appellants as already mentioned above while he acquitted Ram Sahal, Shanker and Sukha appellants of the offence punishable under Section 302 read with Section 34, I.P.C.
16. As regards motive, the prosecution case as well as the evidence of Ram Pal P.W. 3, Smt. Bhagwati P.W. 4 and Kallu P.W. 5, is that all the four accused - appellants are related to each other. This fact is even admitted by the accused appellants. Even Sukha, accused appellant, admitted that Smt. Bhagwati, P.W. 4, was his sister (Step-sister). Even otherwise, the abovenamed Ram Pal P.W. 3 has stated that Sukha belongs to the party of the other co-accused appellants. Besides, it is admitted by Rajju, appellant, that his father Kanhai owns 70 bighas of land in two plots, i.e. 40 bighas and 30 bighas of land. He also admitted that 40 bighas of land was sold away by Kanhai and against it purchased 21 bighas of fertile land in village Kaserwa. This 21 bighas land was equally divided between Rajju, appellant and his real brother Leela deceased. However, he did not admit that the other 30 bighas of land was given by Kanhai to him exclusively for cultivation. According to him that 30 bighas land was in the cultivatory possession of his father, Kanhai. It has to be noted that Leela, deceased, son of Kanhai was 70 years at the time of his death, as mentioned in the postmortem examination report. Obviously then, Kanhai must be older than him.
It is in evidence that this Kanhai died about 6 months after the murder of Leela. We do not think that Kanhai being an old man of 85 at least would physically be able to cultivate his land. The witnesses have stated that Kanhai used to live and dine with Rajju, appellant. Obviously then the said 30 bighas of land must be in the cultivation'of Rajju, appellant, even though it may be on behalf of his father, Kanhai. The witnesses have stated that Rajju, appellant, used to keep the entire usufruct of that land with him. We find no reason to hold differently. Obviously then Leela since deceased, would be keen to get his share of the crop of that 30 bighas land from Rajju. The witnesses have stated that Leela's demand was not acceded to by Rajju. Accordingly, Leela had filed a suit for partition of that land. The fact that no document has been filed to show the pendency of the said partition suit, would make little difference.
The facts deposed to are sufficient to indicate bad blood between Rajju appellant and Leela, deceased. Besides, prosecution case is and Rampal, P.W. 3 and Kallua, P.W. 5. have deposed that Rajju appellant, had borrowed a loan of Rs. 7,000/- which he wanted to repay by selling 20 bighas of land out of the said 30 bighas of land. This was resisted by Leela deceased. The said witnesses have also stated that since Leela was objecting to the sale of 20 bighas of land, so Rajju and his sons, Shankar and Ram Sahai, the three accused-appellants, had belaboured Leela and his sons prior to the present occurrence. Since the matter was pacified by the intervention of the Village Panchayat, it was not taken to the Courts. It is further stated by the said witnesses that in the evening prior to the occurrence, hot words were exchanged between Leela deceased and Rajju appellant in connection with the said proposed sale of 20 bighas of land and it was Rajju and his sons, i.e. the three appellants, who threatened Leela with dire consequences if he stood in the way of sale of said 20 bighas of land by Rajju.
It is true that there is no documentary evidence about the alleged loan of Rs. 7,(XK)/-said to have been taken by Rajju appellant. Also, there is no F.l.R. or complaint regarding the marpit which was said to have been pacified by the intervention of the village Panchayat. But when the matter was adjusted through the Village Panchayat there was perhaps no occasion for filing an F.l.R. or a complaint. It is also true that no report was lodged against the said threats. But then, the relation between Rajju appellant and Leela deceased, were certainly not cordial. Oral evidence of the abovenamed witnesses does indicate that Leela was an eye-sore to Rajju in his management or dealings with the said 30 bighas of land. Obviously then, there was a motive for Rajju and the other related appellants to harm Leela and his sons Rampal, P.W. 3 and Kallua, P.W. 5,
17. Regarding the occurrence in question Rampal, P.W. 3, Smt. Bhagwati P.W. 4 and Kallua, P.W. 5, have stated that on 27-8-76. Leela deceased along with his sons Rampal, P.W. 3 and Kallua, P.W. 5 and his daughter Anandi had gone to their field situated towards west of the village abadi leaving Smt. Bhagwali, P.W. 4 (the wife of Leela deceased) and Smt. Kela, another daughter of Leela deceased at the house Smt. Bhagwati, P.W. 4 has stated that when her husband Leela along with others had gone to the field then Rajju appellant and his son Ram Sahai came to their house and belaboured both Smt. Bhagwati and her daughter Smt. Kela. The fact that Smt. Bhagwati had suffered injuries, as already described above, affords sufficient corroboration of her said assertion. Of course, Smt. Kela was not medically examined but that would hardly make a difference when Smt. Bhagwati, P.W. 4, suffered the above injuries. There is no reason to doubt her statement that she was belaboured by Rajju and his son Rampal Sahai, the two appellants. This assault is not the subject-matter of the appeal in hand. Nonetheless, this supplies a vital link in the events to follow.
18. According to the prosecution, the information about the assault on Smt. Bhagwati, P.W. 4, was conveyed by Smt. Kela to Leela deceased and his (wo sons, Ram Pal, P.W. 3, and Kallua, P.W. 5, at their field near about l()a.m. Both Rampal, P.W. 3 and Kallua, P.W. 5 corroborated this fact. They have further stated that on getting the said news, they left their sisters Anandi and Smt. Kela at the field and they accompanied by their father Leela deceased proceeded towards their house. When they reached under the cluster of trees near the well, known as'Kutti ki Kuiyan, they were waylaid by the four accused-appellants. Rajju was carrying a gun while the other three accused-appellants carried lathis. They belaboured Leela deceased, Rampal, P.W. 3 and Kallua P.W. 5 with Lathis. Their alarm brought Manohar Lal P.W. 6, Babu P.W. 7 and one Bholey to the spot who saw the assault with lathis in question. In the end Rajju fired M gunshot killing Leela deceased on the spot. It was only on the intervention of the incoming witnesses that the appellants ran away.
19. Manohar Lal, P.W.6, has stated that at that time he was proceeding to his field from the village abadi and had reached near the grove of Rameshwar which adjoins his field. The place of occurrence is near that grove. Babu P.W. 7 has stated that at that time he was present in his own field of Bajra situated about?. hundred paces from the place of occurrence. Both of them have stated that they had reached the spot on hearing alarm raised by Leela deceased, Rampal P.W. 3 and Kallua P.W. 5. They had seen the four accused-appellants surrounding them. Shankar, Ram Sahai and Sukha, appellants, were showering lathi blows on them. In the end, Rajju had fired his gun killing Leela deceased on the spot.
20. Manohar Lal, P.W. 6, conceded that one Naresh is his younger brother and Smt. Kela is the daughter of Leela deceased. He, however, denied the suggestion that Naresh and Smt. Kela were living together in illicit intimacy. The suggestion given was that they had murdered Leela and falsely implicated the four accused-appellants in this case. To our mind, the suggestion is bereft of any force. If Manohar or his brother Naresh had murdered Leela after having developed illicit connection with Smt. Kela, then it seems rather impossible that Rampal. P.W. 3 and Kallua, P.W. 5 and Smt. Bhagwati, P.W. 4, would have spared the real culprits and would have preferred to falsely implicate their own collaterals in this crime. Nothing substantial could be shown against Manohar Lal, P.W. 6 or Babu P.W. 7 as to why they should not be believed. There is nothing on record to suggest that they bore any enmity of their own against the four accused-appellants or they were in any manner very thick with Rampal, P.W. 3, Kallua, P.W. 5 and Smt. Bhagwati P.W. 4 or were in any way under their influence. Their presence on the spot cannot be called improbable. By no stretch of imagination they could be termed as chance witnesses.
21. As a result of the above discussion, we hold that the prosecution has proved the alleged occurrence in which Shankar, Ram Sahai and Sukha had caused hurts with lathis to Ram Pa! and Kallua and Leela deceased, and Rajju appellant had killed Leela by firing gunshot at him,
22. However, we find that, in the statements of the accused appellants recorded on 30-5-1970, Shanker, appellant, was 20 and Ram Sahai, appellant, was 16. They were, therefore, on the date of occurrence, i.e. 27-8-1976 about 19 and 15 years of age. The injuries caused I'y lathis on the person of the victims were minor in nature so much so that Kallua, P.W. 5, merely complained of pain at places and had no visible mark of injuries on his person. Evidently, their role in the incident was insignificant and that loo appears to be under the influence of Rajju, appellant. This fact would entitle Shanker, Ram Sahai and Sukha, appellants, of Criminal Appeal No. 1412 of 1977 for reduction of their sentences under Section 323/34, I.P.C, otherwise, the appeal is liable to be dismissed.
23. These three appellants in no way can be held responsible for the overt act of Rajju, appellant, in killing Leela deceased by firing his gun at him. He had done this in the end of the incident, there is nothing to indicate that (he above three appellants had shared the intention with Rajju. appellant, to kill Leela with a gunshot Since there was no meeting of minds between the said three appellants and Rajju appellant in killing of Leela deceased they cannot be held guilty of offence under Section 302, I.P.C. with the aid of Section 34, I.P.C. The Government Appeal No. 2237 of 1977 is, therefore, liable to be dismissed. The evidence clearly shows that Rajju, appellant, of Criminal Appeal No. 1413 of 1977 had intentionally and knowingly committed the murder of Leela by firing gunshot at him, he can also be held to share the common intention of the three appellants in causing hurts with lathis to the three victims. He was, therefore, rightly convicted and sentenced under Section 302 and 323/34, I.P.C. His appeal is also liable to be dismissed.
24. Criminal Appeal No. 1412 of 1977 of Shanker, Ram Sahai and Sukha appellants is dismissed. Their conviction under Section 323, I.P.C, read with Section 34, I.P.C. is upheld. However, their sentences are reduced from one year Rule 1. to the period already undergone.
25. Criminal Appeal No. 1413 of 1977 of Rajju, appellant, is dismissed. The conviction and sentence awarded to him under Section 302 and 323/34, I.P.C. respectively are confirmed, he is on bail. He shall surrender to his bail bonds to serve out his sentences. He shall be taken into custody forthwith.
26. Govt. Appeal No. 2237 of 1977 is dismissed. The acquittal of Shanker, Ram Sahai and Sukha accused-appellants recorded by the learned Sessions Judge under Section 302/34, I.P.C. is confirmed.