R.S. SARKARIA, J.
1. These appeals arise out of the same judgment, dated September 20, 1973, of the High Court of Allahabad. The prosecution story, as it emerges from the record, is as follows:
2. In the year 1965, Ratan Singh purchased 54.37 acres of agricultural land in the area of Village Sitarampur. He built jhala (thatched huts) in the land. Subsequently, Nath Singh, appellant, also, purchased land situated towards the north and south of the farm of Ratan Singh. The farm of Ratan Singh was bounded on both sides by nallas. For going to his field, Nath Singh used to pass through the land of Ratan Singh. Ratan Singh objected to this. A few panchayats were, also convened to settle the dispute. One of such panchayats directed Nath Singh to go to his land along the nalla to the west. During rainy season, when the nalla was swollen, Ratan Singh allowed Nath Singh to pass through his farm. Nath Singh did not accept the decision of the panchayat.
3. On November 11, 1968 in the morning, Ratan Singh was in his farm for the purpose of supervising the ploughing which was being done by a tractor driven by Dharamraj. He saw Nath Singh passing through his ploughed land. Ratan Singh stopped Nath Singh and asked him to go by the western passage along the nalla in accordance with the decision of the panchayat reminding him that it was not rainy season. Nath Singh retaliated by hurling filthy abuses. A sharp altercation ensued between the two, and in spite of Ratan Singh's objection, Nath Singh went through the former's land to his plot.
4. Some time later in the day, Pandit Khyali Ram who had good relations with Ratan Singh came to the latter's farm to hire his tractor. Ratan Singh narrated the incident to Khyali Ram and requested the latter to go and suggest to Nath Singh to sort out and settle this long standing dispute amicably by mutual discussion. Accordingly, Khyali Ram went to the jhala of Nath Singh, which was located in the latter's land towards the north. Khyali Ram communicated the message to Nath Singh. Nath Singh consulted his father Mangal Singh and uncle Ganga Singh and then informed Khyali Ram that since during the day they would not get free time, Ratan Singh could come at 8 or 9 o'clock in the night for talks. Khyali Ram returned to Ratan Singh's farm and accordingly informed Ratan Singh in the presence and hearing of Dharamraj (PW 3) that Nath Singh had invited him to come over to the jhala at about 9 p.m. for the purpose of settling the dispute by negotiation. He further told Ratan Singh that Nath Singh had given this message after consulting his men. In the evening, Ratan Singh called his brother-in-law, Prakash Singh, who was living in his neighbouring field of 10 acres. He apprised Prakash Singh about the dispute and asked him to accompany him so that the matter could be talked over and settled with the accused. Nek Singh, who was then sitting with Prakash Singh, also agreed to accompany Ratan Singh and so did Sewak Singh, a boy of 15 or 16 years. At about 9 p.m., Ratan Singh, Prakash Singh (deceased), Nek Singh (deceased), Sewak Singh, Bidhi Singh, Munshi Chandan Singh and Charan Singh seated themselves in the trailer of Ratan Singh's tractor, which was then driven by Dharamraj, driver, to the jhala of Nath Singh. Excepting Prakash Singh and Nek Singh who were carrying a lathi and a kirpan respectively, none of them had any weapon with him. The tractor with its headlights on was stopped in front of the jhala of Nath Singh. A burning lantern was hanging in the chappar adjacent to the jhala. All the ten accused were sitting in that chappar. While the driver Dharamraj remained sitting on the tractor, Ratan Singh and his companions alighted and proceeded towards the chappar of Nath Singh. No sooner than they got down from the trailer, Nath Singh and Niranjan Singh armed with guns, Bhag Singh with barcha (spear), Dilbagh Singh, Ganga Singh and Mahendra Singh with kirpans (swords) and Mangal Singh, Pratap Singh, Ujagar Singh and Madho Singh with lathis, emerged from the chappar of Nath Singh. On seeing Ratan Singh and party, the appellants shouted: “Today you have fully come in our hold, we shall now finish the dispute for ever.” Immediately thereafter, Nath Singh and Niranjan Singh started firing their guns at Ratan Singh and his men. On receiving the gunshots, Ratan Singh and Chandan Singh took cover behind the tractor. The companions of the gunmen, also, wielded their weapons against Ratan Singh's companions. Prakash Singh and Nek Singh, charged at the assailants wielding their lathi and kirpan. But they were moved down by a volley of gunshots fired by Niranjan Singh and Nath Singh. The appellants then lifted Nek Singh and Pratap Singh from the ground and carried them beating into the jhala of Nath Singh. Ratan Singh and his companions receded and fled away.
5. Ratan Singh then went to Police Station, Kashipur, six miles away from the place of incident, wrote out and handed over the first information report in the police station at 11.30 p.m. On the basis of that report, a case was registered against the ten appellants. Sub-Inspector Hori Lal after registering the case, started investigation. He reached the scene of the crime and found the dead bodies of Prakash Singh and Nek Singh in a kothri inside the jhala of the accused.
6. In the meantime at 12.45 midnight, Nath Singh also reached the same police station and lodged a cross-report, giving his version of the incident. Nath Singh was detained in the police station. The Sub-Inspector found four empty cartridges and four wads lying at the scene of the occurrence outside the jhala of Nath Singh. He took these articles into possession and after sealing them into parcels prepared seizure memos in respect thereof. The investigator also found the tractor and trolley of Ratan Singh standing on the spot. At about 8 a.m. on November 12, 1968, the Sub-Inspector Hori Lal arrested Mangal Singh, Pratap Singh and Bhag Singh from their sugarcane crop. On November 14, 1968, the investigation was taken over by Sub-Inspector S.S. Pal. On receiving some secret information, Head Constable Ram Singh arrested Niranjan Singh accused in Kazibagh and his single barrel gun and one cartridge were seized and sealed into a parcel in the presence of the witnesses, including Sagir Ahmad. On November 12, 1968, the licensed gun of Prakash Singh deceased was also taken into possession by the police from his house when it was produced by his widow, Charan Kaur. This gun was also sealed into a parcel in the presence of the witnesses. Ujagar Singh accused was arrested on November 19, 1968, while Dilbagh Singh, Mahendra Singh, Ganga Singh and Madho Singh accused surrendered in court, from where their custody was taken over by the police. The licensed gun seized from Niranjan Singh and the licensed gun of Prakash Singh taken from his widow, and the cartridge cases found at the spot were all sent in sealed bundles, through Constable Pattu Singh to the Ballistic Expert. The Ballistic Expert, Rameshwar Prasad Rastogi (PW 14) examined them and came to the conclusion that at least one of the crime cartridge cases sealed by him, had been fired through the barrel of the gun seized from Niranjan Singh, appellant.
7. Dr Bhatnagar conducted the autopsy of Prakash Singh and found these injuries:
1. Incised wound 1½ inch × 3/10 inch × skull deep on the mid line of head, 3½ inch above the nape of nose placed obliquely.
2. Incised wound 1¼ inch × 2/10 inch × 2/10 inch on the left side of jaw 2 inch lateral to the chin placed horizontally.
3. Abrasion 1 inch × ¼ inch on the right side of the face just below right eye.
4. Contusion 3 inch × 1 inch on the back of left shoulder.
5. Contusion 1 inch × ½ inch on the front of right arm middle third.
6. Charring of the skin in an area of 1 inch × ¼ inch on the left side of abdomen 2 inch above the umbilicus 1 o'clock position.
7. Gunshot wound 1 inch × 1 inch × limb thickness deep on the front of left thigh ¼ inch below the groin fold. There is charring of the skin around the wound. There was a fracture of the underlying femur bone. The underlying blood-vessel had also been lacerated. This was an inlet wound. Gunshot had been recovered from this wound,
8. Four gunshot wounds size varying from 1/10 inch × 1/10 inch × skin deep to 2/10 inch × 2/10 inch × muscle deep on the front surface of the left thigh just below Injury No. 7. There was slight charring around this wound. This was an inlet wound.
9. Four gunshot wounds, size: 2/10 inch × 2/10 inch × limb thickness deep on the back of left thigh, uppermost part. There was no charring of the skin.
10. Abrasion 1½ inch × 1 inch on the back of the elbow.
11. Abrasion 1 inch × 3/4 inch on the front of the right knee.
12. Abrasion 3/4 inch × 3/4 inch on the front of left leg upper part.
Dr Bhatnagar, also, conducted the autopsy of Nek Singh and found the undernoted injuries on his body:
1. Six gunshot wounds in an area of 4 inch × 4 inch on the left side of abdomen between the umbilicus and left side of anterior superior iliac spine, size varying from 6/10 inch × 4/10 inch × abdominal cavity deep to 3/10 inch × 3/10 inch × muscle deep. There was charring of the skin around the wounds. They were inlet wounds.
2. Charring of the skin, 4/10 inch × 3/10 inch on the left side of abdomen 3 inch away from the umbilicus, 3 o'clock position.
3. Incised wound 2½ inch × ½ inch × skull deep on the back of head, 4 inch above and behind the right ear, oblique.
4. Contused wound 2 inch × ½ inch × ½ inch on the right side of head 3 inch behind the right ear.
5. Abrasion 2 inch × 1 inch on the left side of forehead 2 inch above the eyebrow.
6. Contused wound 3/4 inch × 1/10 inch × skin deep on the left eyebrow.
7. Incised wound 1 inch × 1/10 inch × 1/10 inch on the right eyebrow.
8. Abrasion 1 inch × 3/4 inch on the right side of face 1 inch below the right eye.
9. Abraded contusion in an area of 4 inch × 4 inch on the left side of back 4 inch below the shoulder.
10. Abraded contusion in an area of 3 inch × 3 inch on the right side of back just below the shoulder.
11. Contused wound 1 inch × ½ inch × ½ inch on the front of left wrist.
12. Contused wound 3/4 inch × ½ inch × skin deep on the left palm outer part.
13. Abrasion 3/4 inch × 3/4 inch on the back of right elbow joint.
14. Linear abrasion 3 inch long on the outer surface of left leg middle third.
15. Abraded contusion 2 inch × 2 inch on the back of left elbow.
16. Abrasion 3 inch × ½ inch on the back of left thigh middle third.
17. Abraded contusion 2 inch × 2 inch on the front of left leg middle third.
18. Abrasion 2 inch × 2 inch on the back of right leg.
In the opinion of Dr Bhatnagar, Prakash Singh and Nek Singh both died of shock and haemorrhage due to the gunshot wounds.
8. The Ballistic Expert further reported (vide Ext. Ka 41) that the fired cartridges sent to him had not been fired through the double barrel gun No. 43334 (which belonged to Prakash Singh deceased).
9. Ratan Singh and Chandan Singh were also medically examined and gunshot injuries were found on their persons.
10. Mangal Singh and Pratap Singh, appellants were also examined by Dr Bhatnagar. Their medico-legal reports are Exs. Kha 7 and Kha 8. According to these reports, Mangal Singh had two incised wounds, both of which were bone deep and one of them was located on the head. There was also a minor abrasion on his left forearm. Similarly, Pratap Singh had one contused wound on the head, one incised wound on the back of forearm and one abrasion on the right thigh. All these injuries were simple.
11. The prosecution examined, among others, Ratan Singh (PW 1), Chandan Singh (PW 2) and Dharamraj (PW 3), the last three being eyewitnesses of the incident. Khyali Ram (PW 4) was also examined to show that Ratan Singh and his party, including the deceased persons, went to the jhala of the appellants at the invitation of Nath Singh to settle the dispute by holding discussions.
12. During his examination at the trial, Nath Singh accused admitted that there was a sharp altercation between him and Ratan Singh in the morning of November 11, 1968, over the passage. He, however, denied that Khyali Ram had come to his place or that he had invited Ratan Singh and party for talks. He denied the prosecution case, as alleged, and gave this version of the occurrence:
“On that day after 3-4 o'clock, afternoon, Ratan Singh and Prakash Singh sent message to me that in case I passed through his field they would kill me. I made a report to the effect at the police station and sought help of the police. The police told (me) that I should not pass through his field and that (the) police would make arrangements. On the same night at 9 O'clock, Ratan Singh and others whose names are mentioned, and 10-12 other men came to my jhala in two tractors and trolley. I was lying inside the house. My father was outside. On being questioned by my father they started beating him. Pratap Singh went there. They beat him, also. Thereafter, marpit (beating) took place.”
To another question, he replied that since there was time and again gun-firing from the side of Ratan Singh and party, he (Nath Singh) was apprehensive that they would carry away the dead bodies. For that reason, he removed the dead bodies and locked them inside the room.
13. The plea of Dilbagh Singh, Mahindra Singh and Niranjan Singh was one of plain denial of the prosecution case. They further stated that they were not present at the scene of occurrence, at all. Niranjan Singh stated that his licensed gun was taken away by the Police Sub-Inspector from his house at 9 a.m. on the 13th. He denied that his gun was used in the commission of the crime. Similarly, the plea of Madho Singh, Ganga Singh, Pratap Singh and Ujagar Singh was one of plain denial. They also stated that they were not present at the time and place of occurrence.
14. In defence, they did not examine any witness, excepting Dr Bhatnagar, who proved the injury reports of Mangal Singh and Pratap Singh.
15. The trial court accepted the evidence of the main prosecution witnesses, including three eyewitnesses, namely, Ratan Singh, Chandan Singh and Dharamraj, and reached the conclusion that the appellants had deliberately snared Ratan Singh and his companions, including the deceased by inviting them to their jhala at 9 p.m. for settling the dispute over the passage through discussions; that the attack on Ratan Singh and his companions was preplanned, and the murders and the other crimes were committed in prosecution of the common object of the unlawful assembly constituted by the appellants. The trial court further accepted the testimony of the Ballistic Expert to reach the finding that the gun seized from Niranjan Singh had been used in committing the crimes in question. It rejected the defence version as put in the cross-report lodged by Nath Singh appellant, and convicted all the ten appellants under Section 302 read with Section 149, Penal Code for the murders of Prakash Singh and Nek Singh and sentenced each of them to imprisonment for life. The court further convicted the appellants under Section 307 read with Section 149 of the Penal Code for the attempted murders of Ratan Singh and Chandan Singh and sentenced each of them to three years' rigorous imprisonment. Convictions were also recorded under Sections 147/148 of the Penal Code. The sentences were directed to run concurrently.
16. The High Court dismissed the appeals of the accused persons and affirmed their convictions and sentences. Hence, these appeals by special leave.
17. The first contention of Mr R. K. Garg appearing for the appellants in Criminal Appeal No. 186 of 1974, is that the evidence on record, appreciated in the light of the surrounding circumstances and the probabilities of the case, suggests that Ratan Singh (PW 1) had gone with his companions in strength, well armed to the residential farmstead of Mangal Singh appellant and his sons to assault them, and the appellants had repelled that attack in the exercise of their right of private defence; that even if they had exceeded their right of private defence, they were entitled to the protection of Exception 2 to Section 300 of the Indian Penal Code. In support of the contention that Ratan Singh's party were the aggressors, learned Counsel has relied upon these facts and circumstances:
(a) Ratan Singh had in the forenoon on the day of occurrence, tried to prevent Nath Singh, appellant from passing through his field for going to Nath Singh's land. Nath Singh did not desist from passing through Ratan Singh's land and retaliated with abuses. Ratan Singh admitted in cross-examination that “the altercation in the morning had pained him”. Ratan Singh also stated in cross-examination, that the dispute over the passage was a long standing one; panchayats were convened twice to bring about the settlement. The panchayats decided that Nath Singh should not, excepting in rainy season, pass through the land of Ratan Singh. In spite of this decision Nath Singh persisted in passing through Ratan Singh's land even when it was not rainy season. Ratan Singh once or twice before the day of occurrence, also, had forbidden Nath Singh to pass through his plot, but Nath Singh indulged in altercation on those occasions also, and persistently passed through his plot. This defiant conduct of Nath Singh, (it is argued) must have sorely annoyed Ratan Singh who, had therefore, a motive to avenge the repeated insults meted out to him by Nath Singh.
(b) On November 11, 1968, about three hours before the occurrence, Nath Singh, appellant had lodged a report (Ext. Kha 5) at 6.20 p.m. in Police Station, Kashipur that at about 4 p.m. on that day, Ratan Singh and Prakash Singh had come to his house and threatened to kill him. On this report a case under Sections 504/506 of the Indian Penal Code was registered against Ratan Singh and his companion Prakash Singh (deceased).
(c) After the occurrence, at 12.45 a.m., the same night on November 12, 1968, Nath Singh lodged a counter-report (Ext. Ka 10), in which he gave his version of the incident as follows:
“It is submitted that my name is Nath Singh. My father's name is Mangal Singh. I am Jat Sikh by caste. I reside in Village Sitarampur, P. S. Kashipur, District Naini Tal. Ratan Singh son of Dhanpat Singh, Jat Sikh by caste, of Jaitpur, Farm P.S. Kashipur has agricultural land in the village and the same adjoins the mend (ridge) of my fields. There was a cart way through the field of Ratan Singh, but he was objecting to our taking our cart through his field. On account of this, there has been enmity between him and me for sometime past. He was on the look out to beat me. Yesterday morning, he had collected many persons in his fields. Out of fear I did not go to my fields. But he was not satisfied even on this. Yesterday, at about 8.30 p.m. Ratan Singh along with Prakash Singh, (father's name not known), Jat Sikh, resident of Girdhai, Dharma, driver, father's name not known, one other driver of Ratan Singh whose name is not known, caste Poorvai, one Munshi of Ratan Singh, Hindu, name not known, Chandu Singh, son of Jagar Singh 10-12 other persons whose names and addresses are not known to me, but they appeared to be Sikhs, came to my house on a tractor and all the persons started shouting abuses at us. My old father Mangal Singh, my brother Bagh Singh and I tried to persuade Ratan not to abuse us, but he could not be dissuaded. He asked his colleagues in a loud voice: ‘Beat the salas and do not let them escape today.’ Upon this Ratan Singh and his companions named above rushed at us and started assaulting us with gun, sword, barchhas, and lathis. Amongst the accused, Prakash Singh was armed with double barrel gun. Nek Singh was armed with a sword. Ratan Singh and Dharma driver had barchhas and the remaining accused were armed with lathis. One of the Sikhs amongst the accused was armed with a gun. My father Mangal Singh received injuries on his forehead, hand and shoulder, and my servant Pratap Singh received injuries on his head, hands and buttocks. This occurrence was witnessed by my servant Pratap Singh, Badan Singh son of Arjun Singh, Jat Sikh, resident of Rampura, P. S. Kashipur and Darshan Singh son of Dalip Singh, Jat Sikh, resident of Nijda Farm, P. S. Kashipur. The accused persons, who had guns were firing them. In this altercation, Prakash Singh and Nek Singh died as a result of firing of gun. On seeing this, the remaining accused persons ran away. We were getting ready to come to the police station, but we did not come on account of fear. My complaint against the abovementioned accused persons is that they with a common object had come armed with guns, barchhas, sword and lathis to inflict injuries on my father, brother, servant and me. The report may be taken down and investigation made.”
(d) Ratan Singh stated in the FIR (Ext. Ka 7):
“I thought to settle the dispute for ever and to go to Nath Singh and settle the matter with him through a panchayat today. Accordingly, I sent Khyali Ram Pandit (PW 4) to the house of Nath Singh to convey the message that I wanted to settle this dispute for ever by means of a panchayat, and that he should appoint the time and place ‘(to have a talk for settlement)’.”
Actually, Ratan Singh did not take along with him any Panches but only his relations and hirelings.
(e) The time selected for going to the house of Nath Singh for talks was 9 or 9.30 p.m. which was an unearthly hour of the night when normally, the inmates of the house would be asleep. It was most unsuitable for resolving the dispute amicably through mutual discussion. Nor was, the house of the accused, a suitable venue for talks to resolve the dispute peacefully.
(f) Prakash Singh was a gun licensee and his natural conduct would be to carry his licensed weapon with him, even if he was accompanying Ratan Singh to help him in the discussion.
(g) Even according to the prosecution, Prakash Singh and Nek Singh deceased were armed with a lathi and a kirpan, respectively, with which they caused injuries to Mangal Singh and Pratap Singh appellants. These injuries to the appellants must have been caused by them before they themselves received the gunshots. The inference is that the deceased persons first attacked and caused injuries to Mangal Singh and Pratap Singh appellant.
18. At first flush, these circumstances, and facts and arguments catalogued above seem to support the contention of the appellants that Ratan Singh and his companions had gone to the house of the appellants, Mangal Singh, Nath Singh, Dilbagh Singh, Bhag Singh and Mahendra Singh to coerce them into a settlement dispute over the passage possibly by show or use of force. But these circumstances appear only on one side of the coin. If they are weighed against the obverse side of the coin depicted in the prosecution evidence in the light of the surrounding circumstances and probabilities of the case, no inference of any aggressive design or role against the complainant's party can be drawn. On the contrary, the totality of the evidence on the record, both circumstantial and direct leaves no doubt that Nath Singh had, in consultation with his father and brothers and others, prepared a plan to subvert the proposed visit of Ratan Singh and his men into a snare and occasion for annihilating them. The report (Ext. Kha 5) lodged at 6.30 p.m. was presumably intended to cover up such a design and prepare beforehand a ground for a plea of private defence to justify the planned assault on the complainant's party. Nath Singh's version in this report, to the effect, that on that day at about 4 p.m., Ratan Singh and Prakash Singh came to his house and abused, warned and threatened to kill the informant if he dared to pass through Ratan Singh's field, does not appear to be correct. In his examination at the trial, Nath Singh sharply contradicted it when he said: “On the day of occurrence after 3 or 4 o'clock, Ratan Singh and Prakash Singh sent a message to him that in case I passed through his field, they would kill me.” Nath Singh, however, did not say as to who had brought this message. Although he did not admit his prior acquaintance with Khyali Ram (PW 4), yet he denied that Khyali Ram had brought a message from Ratan Singh for resolving the dispute through mutual discussion and talk. He denied that he had sent through Khyali Ram an invitation to Ratan Singh and his men to come for talks to his house on that day at 9 p.m.
19. PW 4, Khyali Ram's evidence was thus crucial to this aspect of the case. He substantially corroborated Ratan Singh and stated that Ratan Singh had, after explaining the dispute between Ratan Singh and Nath Singh regarding the passage and the efforts made through the mediation of the previous panchayats to settle it, requested the witness that he should have a talk with Nath Singh and convey to him Ratan Singles desire to sit some-where together and talk about it to resolve it. The witness claims to have known Nath Singh for five or six years prior to the occurrence and this was the reason why Ratan Singh solicited his mediation and assistance in conveying this message. In cross-examination, he revealed that when he went to the jhala of Nath Singh for conveying the message of Ratan Singh, Nath Singh was not there. The witness had, therefore, to wait for him for more than an hour. The witness met Nath Singh's father, Mangal Singh, and also Nath Singh on his return and talked to them for 10 to 15 minutes. Nath Singh's uncle, Ganga Singh was also present at the jhala. The witness conveyed the message of Ratan Singh to Nath Singh. After having consultation amongst themselves, Nath Singh and his father and uncle told the witness that as during the day, being preoccupied with work they would not get time for the talks, Ratan Singh could come at 8 or 9 p.m. in the night and have a talk. After about two hours, the witness went back to the field of Ratan Singh and conveyed what Nath Singh and Mangal Singh had told about the suggestion of Ratan Singh. Khyali Ram was a disinterested and independent witness. He emerged unscathed from the ordeal of lengthy and relentless cross-examination. The only thing brought about in cross-examination was that he was a treasurer (presumably an honorary office) of a cooperative society of which Ratan Singh was the secretary. This could hardly be a circumstance to dub him as an interested or partisan witness. The courts below have accepted his testimony and we have no reason to differ from their view. From his evidence, it stood established that it was Nath Singh who had, in consultation with his father and uncle, induced Ratan Singh and his companions to come to his jhala at 9 p.m. on the pretext of resolving the dispute by bilateral talks.
20. This fact further finds corroboration from the testimony of the eyewitnesses, (PW 1), (PW 2) and (PW 3), that no sooner had they alighted from the trailer of the tractor, Nath Singh and his companion-appellants, yelled: “Today you have been well caught in our snare and we shall now settle the dispute for ever”; and saying so, Nath Singh and Niranjan Singh started firing their guns, hitting Ratan Singh and Chandan Singh.
21. Evidently, Ratan Singh and his party walked into the trap laid by Nath Singh and his associates, without suspecting or reading anything sinister in the time fixed by Nath Singh for the mutual talks proposed by Ratan Singh, because the sowing season was in full swing and throughout the day they would be preoccupied with agricultural work on their lands. Indeed, this was the reason conveyed by Nath Singh and Mangal Singh through Khyali Ram for fixing 8 or 9 p.m. as the time for the proposed “talks”.
22. There does not appear to be any significant departure on the part of Ratan Singh from the story originally adumbrated in the FIR (Ext. Ka 7), that he had told Khyali Ram to convey to Nath Singh, appellant to resolve the dispute “by holding a panchayat” and his subsequent version (as reproduced by Khyali Ram) that Ratan Singh had suggested to convey to Nath Singh that they could resolve the dispute by sitting together somewhere and talking it over. “To resolve by holding panchayat” and ‘to settle by mutual talks”, are expressions which are often loosely used by the villagers to convey one and the same thing, namely “by mutual discussion”. It does not necessarily mean that the members of the formally constituted village panchayat as such should assemble and mediate or settle the dispute. Much capital, therefore, cannot be made out of the circumstance that Ratan Singh did not take in his party any member of the village panchayat, particularly when two “panchayats” convened earlier had failed to settle the dispute amicably and effectively.
23. Nor can an argument be built upon the admission of Ratan Singh that “he was much pained” in the morning of the day of occurrence, when Nath Singh had abused and altercated with him and defiantly passed through his land. His admission about his being pained at Nath Singh's offensive behaviour should not be dissected and read in isolation, but should be understood in the context of the remaining clause of the sentence “and I thought this matter be settled by holding a panchayat”. This only shows that Ratan Singh, being a peaceful, law-abiding and discerning person, realised that it was time to defuse the tense situation and restore good neighbourly relations with Nath Singh by finding a solution of the dispute by mutual talks acceptable to Nath Singh. He thought that this was a matter between him and Nath Singh which could be best resolved amicably by bilateral talks, without the mediation or intervention of the formal Panches or village people.
24. The mainstay of the prosecution case was the testimony of the three eyewitnesses: Ratan Singh (PW 1), Chandan Singh (PW 2) and Dharamraj (PW 3) apart from that of Khyali Ram (PW 4). Barring minor discrepancies, they gave a substantially consistent account of the occurrence. According to them, excepting Nek Singh and Pratap (sic Prakash) Singh who had a kirpan and a lathi respectively, no member of their party had any arm whatever with him. The presence of Ratan Singh and, Chandan Singh at the scene of occurrence was assured by the gunshot injuries received by them.
25. A burning lantern hanging in the chappar of Nath Singh was shedding its light on the scene of occurrence. The headlights of the tractor were also on. There was thus sufficient light. The distance between the assailants and assailed was not much. The identification of the assailants, who were all previously known to these witnesses, was therefore not difficult. The courts below have fully relied on the testimony of these eyewitnesses both with regard to the identity of the appellants and the part played by them in the occurrence. There is no good reason to differ from the evaluation of their evidence made by the courts below, particularly, when the presence of these three witnesses at the time and place of occurrence was admitted even in the cross-report (Ext. Kha 10) lodged at 12.45 a.m. by Nath Singh.
26. Undisputed circumstances, all, unerringly point to the conclusion that Ratan Singh and companions had not gone to the house of Nath Singh with any evil intention or aggressive design. Had the complainant party gone to the house of the appellants for assaulting them and not at the “invitation” of Nath Singh for amicable settlement of the dispute by having bilateral talks, their natural conduct should have been to go well armed and clandestinely, and not in a tractor-trailer close to the house of Nath Singh.
In cross-examination, the defence put it to Ratan Singh that he had taken all these men with him to the house of Nath Singh for assaulting him and not for peaceful settlement of the dispute. Not only Ratan Singh's emphatic denial of the suggestion but also what he further added, furnishes, in our opinion, a complete and irrefutable answer to the defence suggestion. Said he: “Had I gone for committing assault, I would not have gone on the trailer of a tractor the sound of which is audible and the light of which is visible from one mile; rather I would have attacked them from my jhala in the night.” Further, if the complainant's party had any such design, they would have left the tractor at a considerable distance and thereafter stealthily approached, the house of Nath Singh and launched an armed invasion of the house and on its inmates in a planned manner. They did nothing of this kind.
27. Prakash Singh was a gun licensee. Nath Singh had stated in his counter-report (Ext. Kha 10) and also in his written statement filed at the trial that Prakash Singh and one other companion of Ratan Singh had firearms which they fired indiscriminately at the appellants. This allegation of Nath Singh stood falsified by the telling circumstance that no gun was found at the scene of occurrence. If Prakash Singh had his licensed gun with him at the time of occurrence, it should have dropped at the very place where he received the fatal gunshot and the same also, like their deadbodies, should have been impounded by the accused as demonstrative proof of aggression by the complainant party. But his gun was not found at the scene of occurrence. It was collected by sub-Inspector Hori Singh from Prakash Singh's house on November 12 when it was produced before him by his widow. This shows that Prakash Singh had not taken his gun with him. Conversely, if Prakash Singh had accompanied his relation Ratan Singh for the purpose of assaulting or killing somebody, he should have taken his licensed gun with him. Further, none of the appellants received any gunshot injury. No evidence was led to show that there were gunshot or bulletmarks on the doors or walls of the house of Nath Singh. The Ballistic Expert, (PW 14), testified that in his opinion none of the crime cartridge cases sent to him, had been fired from the gun of Prakash Singh deceased. On the other hand he stated that one of the crime cartridges, is his opinion, had been fired through the barrel of the gun (Ext. 18), belonging to Niranjan Singh appellant. All the circumstances suggest that shots were fired only from the side of the appellants towards Ratan Singh and his companions.
28. With regard to the fatal gunshot wounds found on the bodies of Nek Singh and Prakash Singh, the defence tried to conjure up the ridiculous story that Prakash Singh and Nek Singh had died as a result of gunshots fired by the complainant's party. This story was manifestly false and absurd. The medical evidence shows that there was charring around the gunshot wounds of entry found on the deadbodies of Prakash Singh and Nek Singh. The charring is an indication that these fatal gunshots were fired at the deceased persons from a very close range. In such a situation, there was not even a remote possibility of the deceased persons being accidently shot dead by their own companions. For the sake of emphasis, it will bear repetition that no member of the party of Ratan Singh came armed. Of course, Nek Singh deceased had a kirpan and Prakash Singh deceased a lathi. Nek Singh was a Sikh. A kirpan is a religious symbol of Sikhs. There was therefore nothing unusual if he had his kirpan with him. Nor was the lathi which Prakash Singh had a pointer to the fact that he and his companions had come prepared to assault the accused party according to a preconceived design. The very fact that Prakash Singh did not bring his licensed gun with him, negatives the inference of any such design.
29. For the foregoing reasons, we have no hesitation in holding, in agreement with the courts below, that Ratan Singh and his companions were not the aggressors, and had gone to the house of Mangal Singh appellant and his sons with the intention of resolving the dispute peacefully by mutual talks. On the contrary, Nath Singh appellant had after consulting his father and uncle Ganga Singh, fraudulently and maliciously induced and snared Ratan Singh and his associates by sending a message through Khyali Ram, that Ratan Singh and party could come to his house for resolving the dispute through mutual talks at about 9 p.m. When Ratan Singh and his companions came and walked into the trap, the appellants in accordance with the pre-arranged plan, opened assault on Ratan Singh and his companions and committed the crimes in question. The appellant had thus no right of private defence.
30. Mr Garg has next contended that the courts below have not discussed the cases of the individual accused, separately, and determined with particularity the parts played by each of them in the commission of the crimes. It is stressed that the adoption of such a course was specially necessary in this case because all the adult brothers, aged father and uncle and all other relations of Nath Singh, having no concern with the dispute over the passage or interest in the lands of Mangal Singh and his sons, have been involved, and the possibility of some innocent persons having been implicated along with the guilty, cannot be ruled out. It is pointed out that Madho Singh appellant is a resident of Talwandi, District Ferozepur, and has no land in the area of Village Sitarampur; nor was he in any way concerned with the dispute. It is urged that Madho Singh has been implicated by Ratan Singh, merely because he is related to Mangal Singh appellant, as the latter's son-in-law, that the only role attributed to him is that he was armed with a lathi which he used and it is not specifically alleged which injury and to which deceased person was caused by him. Mangal Singh, it is pointed out, was an old infirm man of 75 years and Ganga Singh appellant of 71 years at the time of occurrence, that Pratap Singh appellant was a mere labourer or farm servant of Nath Singh appellant. He was a resident of Almora, and had no concern with the dispute. Counsel referred to Pratap's statement at the trial wherein he stated that he was asleep in the jhala when he was awakened by the sound of the engine of the tractor. On hearing the alarm of Mangal Singh he went out and saw the visitors beating Mangal Singh. When he (Pratap Singh), intervened, three persons caught hold of him and started beating him; he fell down unconscious and knew nothing what happened thereafter. It is maintained that Mangal Singh and Pratap Singh were only victims, and after the receipt of the injuries, particularly those located on the heads, they could not have the physical capacity of playing any part in the assault on the deceased persons.
31. We have given our most anxious consideration to the submissions made by Mr Garg. According to the ocular evidence of the eyewitnesses Mangal Singh, Pratap Singh, Ujagar Singh and Madho Singh were armed with lathis, Dilbagh Singh, Ganga Singh and Mahendra Singh appellants were armed with kirpans, Bhag Singh appellant with a barchha (spear); while Niranjan Singh and Nath Singh were armed with guns and they all used their weapons in inflicting injuries on the deceased persons. According to the medical evidence rendered by Dr Bhatnagar, there were 30 injuries in all on the deceased persons, 12 on the body of Prakash Singh and 18 on the body of Nek Singh. Out of these, 4 were incised wounds, two each on Nek Singh and Prakash Singh; while 9 were contusions, 2 on Prakash Singh and 7 on Nek Singh, in addition to 4 abrasions on Prakash Singh and 5 abrasions on Nek Singh. These apart there were 4 gunshot wounds (including inlet wound) on Prakash Singh and 2 gunshot wounds (including inlet wound) on the body of Nek Singh. In the opinion of Dr Bhatnagar, the abrasions found on the deceased persons were caused by friction against hard rough surface, while the contusions were caused with blunt weapons like lathis. In the opinion of the medical witness, the 2 incised wounds (Nos. 1 and 2) found on the body of Prakash Singh had been caused with a sharp-edged weapon such as kirpan and barchha. As regards the incised wounds (Nos. 3 and 7) of Nek Singh, the witness stated in examination-in-chief that they had been caused with “some sharp-edged weapon such as kirpan”. But in cross-examination he opined that the incised injury No. 7 found on Nek Singh “could have been caused with a sharp-edged weapon such as barchha and sword both. It could have been a barchha injury only when barchha has struck grazingly”. He, however, conceded that generally a barchha is used in a piercing manner. Similarly, with reference to the incised Injury No. 2 on Prakash Singh, he explained that this “could have been caused with a barchha if it had been struck grazingly”. The witness hastened to add: “There is lesser possibility that injury No. 1 might have been caused with a barchha”. But with regard to incised injury No. 1 on Prakash Singh, he did not qualify his examination-in-chief, that this injury could have been caused with a kirpan as well as a barchha. Thus, medical evidence corroborates the ocular evidence of the eyewitness to the extent that there were numerous injuries on the deceased persons which were inflicted with four types of weapons, namely, gun, kirpan (sword), barchha and lathi. It further supports their evidence that Ratan Singh and Chandan Singh had also received gunshot injuries and since no charring or blackening was found around those gunshot injuries, the guns were fired from a distance beyond 6 or 8 feet. The large number of the injuries on the side of the complainant party, suggests that they were simultaneously attacked by several persons with four types of weapons. The deaths of Prakash Singh and Nek Singh were, according to Dr Bhatnagar, the result of gunshot wounds received by them from very close range. This indicates that these victims were probably first overpowered, overwhelmed and captured by a larger number of persons, almost simultaneously and then shot dead by two different gunmen.
32. Nath Singh knew sufficient time ahead of the time of occurrence that Ratan Singh would be coming for “talks” accompanied by several persons and his kinsman, Prakash Singh. It was therefore, natural for him to collect his relations residing in the neighbouring villages and in concert with them to plan beforehand to assault on the complainant party. It is not disputed that Madho Singh is the son-in-law of Mangal Singh, and Niranjan Singh is the brother of the sandhi of Mangal Singh. Ratan Singh testified that at the material time Madho Singh was residing at Kashipur, and not in District Ferozepur. Similarly, it is an admitted fact that Niranjan Singh was living at Kashipur. Nath Singh admittedly had gone to Kashipur at 6 or 6.30 p.m. on that day to lodge the report (Ext. Kha 5) in the police station. It was therefore, highly probable that he contacted Madho Singh and Niranjan Singh conferred with them and caused them to come to Sitarampur, for executing their common design to commit the crimes in question. Bhag Singh admitted his presence in their jhala at the time of occurrence, although he denied the prosecution version.
33. Excepting Pratap Singh appellant, all the remaining appellants are directly or indirectly related to Nath Singh and Mangal Singh appellants. Even Pratap Singh does not deny that he came out and intervened to rescue Mangal Singh. Mangal Singh and Pratap Singh had received only a few simple injuries which could not incapacitate them from further participation in the assault on the deceased person. Undoubtedly Mangal Singh and Ganga Singh are old men, may be 75 or 71 years of age at the time of occurrence. But it is apparent from the testimony of Khyali Ram (PW 4), that Nath Singh had asked Ratan Singh and his men to come to the jhala of the appellant at 9 p.m., after consulting with Mangal Singh and Ganga Singh both. Mangal Singh and Ganga Singh thus acted pursuant to a pre-arranged plan and in prosecution of the common object to commit the crimes in question. All the appellants are therefore equally guilty of the crimes in question.
34. Mr Mulla contended that Niranjan Singh, appellant who was the brother of the sandhi of Mangal Singh, was residing at Kashipur, that this accused had no motive to participate in the occurrence; that he has been implicated simply because he is remotely related to Mangal Singh. Our attention has been drawn to the statement of Nath Singh accused who during his examination under Section 323 CrPC, stated that Niranjan Singh was not there at all at the scene of occurrence. It is also vehemently contended that the cartridges cases which had been sent to the Ballistic Expert together with the licensed gun of Niranjan Singh, had been “planted” or substituted in place of the cartridge cases allegedly found from the scene of crime by the investigating officers. In any case, proceeds the argument, some acts of omission and commission on the part of the police suggest that there was ample opportunity for the investigating police to fire the gun of Niranjan Singh, after its seizure and to substitute the cartridge so fired for the empty picked up from the scene of crime and send the same in place of the original to the Ballistic Expert. It is stressed that there were suspicious retentions of the gun and empty cartridges by the police and inordinate delays in depositing the same in the Judicial Malkhana and in transit to the Ballistic Expert at Lucknow.
35. It is further submitted that the prosecution did not allege or lead any evidence to show whether the seal with which the parcels containing the gun (Ext. 18) and the crime cartridge cases were sealed, remained in the custody of the sealing police officer throughout, or was entrusted to some other person for any period, whatever.
36. The licensed gun (Ext. 18) and one cartridge (Ext. 19) together with the licence (Ext. 20) were seized by Head Constable Ram Singh from Niranjan Singh appellant on November 12, 1968 at the time of his arrest. According to the prosecution the sealed parcels containing the gun and the cartridge were deposited in the Judicial Malkhana at Kashipur on November 17, 1968, after 5 days of their seizure. It is further correct that there is nothing in the statement of the investigating officer Hori Lal or Head Constable Ram Singh or in the seizure memos prepared by them to show that after sealing the parcel of crime cartridge cases or of the gun, as the case may be, the seal was entrusted to any other person for a period for custody. But no question was put by the defence to these officers about the ownership of the seal or its entrustment to any other person by the sealing police officers. The only suggestion put to Head Constable Ram Singh in cross-examination was that the gun and licence of Niranjan Singh accused were taken from him by the police from his house on November 13, and not on November 12, 1968, at the time of his arrest. This suggestion was denied. Nor was any question put to Sagir Ahmed (PW 8) in whose presence Niranjan Singh was arrested and his licensed gun and cartridge were seized by Head Constable Ram Singh.
37. Prahalad Singh (PW 6) who was the Head Muharrir of the police station at the material time testified that on November 12, 1968 at 10.30 Head Constable Ram Singh brought Niranjan Singh accused, together with a sealed gun and sealed cartridge and the licence, to the police station. The witness deposited these articles in the Malkhana of the police station after making an entry in respect thereof in the Station Diary. He further stated that on November 17, 1968, fourteen sealed bundles of various articles in this case were sent to the Judicial Malkhana, Kashipur through Constable Nauni Ram (PW 10). One suggestion put to Prahalad Singh in cross-examination was that this gun (Ext. 18) was brought to the police station in an unsealed open condition on the 13th and not on the 12th and that it was sealed into a parcel in the police station at the time of its deposit, and not earlier. The witness denied this suggestion. Prahalad Singh was further questioned as to why these articles were not sent to the Judicial Malkhana earlier than November 17, 1968. He replied “that this delay of four days was not worth considering”.
38. Undoubtedly, there was a delay of about five days in sending the sealed parcels containing the gun of Niranjan Singh and the empty “crime” cartridges to the Judicial Malkhana, but this could be only a routine delay and nothing sinister could be read into it, unless it was shown that the police had any hostile animus or motive to implicate this accused falsely.
39. Mr Mulla further submitted that there was another suspicious delay in transit on the part of Constable Pattu Singh in taking these sealed parcels containing the guns and the alleged crime cartridges to the Ballistic Expert at Lucknow.
40. According to Pattu Singh (PW 12) on November 27, 1968 he took two guns and one bundle containing four cases of cartridges with the sample of seal from the Malkhana to the Judicial Officer, Kashipur. The witness affixed his own seal on the bundles and handed over the papers. As the time did not suit and he had missed the train, he could not take these bundles to Lucknow on that day. He, therefore, deposited these articles in sealed condition in the police station and took them to Lucknow on the following day. Both the gun and cartridges remained sealed so long as they remained with him. The witness handed over those articles in sealed condition to the Ballistic Expert at Lucknow on November 29, 1968. Cross-examined, the witness stated that the train for Lucknow starts from Kashipur at 5 or 5-15 o'clock. The witness had to catch that train from the station which was at a distance of more than a mile from the Malkhana of the Judicial Officer. The witness could not tell why the bundles were not sent to the Judicial Malkhana. He denied the suggestion that after taking the articles from the Malkhana, he first went to the police station and then to the Judicial Officer's Court.
41. In this connection, in cross-examination it was suggested to Head Constable Prahalad Singh (PW 6) also, that Pattu Singh had brought these articles from the Judicial Malkhana and that his departure was shown in the General Diary as 2.30 o'clock. The witness denied the suggestion and stated that it was wrong to say that the articles were changed in the Malkhana of the police station.
42. This act of Pattu Singh in taking back the sealed parcels to the Police Malkhana to be kept there for the night for taking on the following day to Lucknow and the consequent delay in transit was no doubt undesirable. Perhaps, the proper course for Pattu Singh was to redeposit the sealed parcels in the Judicial Malkhana for retaking on the following morning. Might be he did not adopt this course because by the time he returned from the railway station after his unsuccessful attempt to catch the train, the court time was over and the office of the Judicial Officer had closed. The bald suggestion — which was denied — put to Pattu Singh that the deposit of the parcels in the police station for the night, was done to change the parcels containing the cartridges, is hardly a ground to jump to the conclusion that the investigating police actually did such substitution. No question was put to Pattu Singh about the identity of the seal with which he had sealed the overall bundle containing the sealed guns and sealed cartridges. Nor was he asked about the custody of the seal or its entrustment during the period between the sealing of the overall bundle and its retaking from the police station where it had been deposited for the night.
43. Assuming these delays in depositing the guns and cartridge cases in the Judicial Malkhana and in transit to the Ballistic Expert at Lucknow and their redeposit for the night between the 27th and 28th in the Police Malkhana, had introduced an infirmity in the evidence of the Ballistic Expert, then also the identity of Niranjan Singh with the crime and his participation in the commission thereof, stood fully established by the direct evidence of the eyewitnesses, Ratan Singh, Chandan Singh and Dharamraj which has been rightly found fully trustworthy by the courts below. The facts that Niranjan Singh was residing in Kashipur and was indirectly related to Mangal Singh appellant far from pointing to his false implication, makes it highly probable that Nath Singh when, being aware of the proposed visit of Ratan Singh and his men to his house for talks at about 8 or 9 p.m., had gone to lodge the misleading report at Police Station Kashipur at 6.30 p.m., associated Niranjan Singh at Kashipur, and induced him to come to his house with his gun to participate in the assault on Ratan Singh and his companions. The circumstance that in the first gunfire two persons, namely, Ratan Singh and Chandan Singh were injured and thereafter Nek Singh and Prakash Singh were almost simultaneously shot, further lends confirmation to the prosecution story that two persons, namely Nath Singh and Niranjan Singh simultaneously opened fire on the complainant's party.
44. Furthermore, Nath Singh knew that Ratan Singh would be coming with a number of men including his relations. Therefore, if he wanted to execute his design of killing Ratan Singh and destroying his supporters, successfully, he would require the assistance of men who by their superiority in numbers and arms could overwhelm Ratan Singh and his companions. The plan made by Nath Singh and his brothers and father being to annihilate Ratan Singh and his companions, it was but natural that Nath Singh should collect his relations and men, armed with lethal weapons and to concert with them beforehand as to how the plan should be executed. All the appellants actually participated in the assault, at least, in the asault on the deceased persons and in removing their dead bodies into the house of Mangal Singh and his sons. The inference was therefore irresistible that they all acted pursuant to a pre-arranged plan and a common object. All the appellants were therefore equally liable by the operation of Section 149 for the murders of Nek Singh and Prakash Singh and the attempted murder of Ratan Singh and Chandan Singh.
45. We do not find any flaw in the reasoning employed and the conclusions drawn by the courts below about the guilt of all the appellants. We therefore, dismiss these appeals and uphold the convictions and sentences of the appellants. If any of them is or are on bail, he or they, as the case may be, shall surrender to the bail to serve out the sentences awarded.