Om Prakash and ors. Vs. State of U.P. - Court Judgment

SooperKanoon Citationsooperkanoon.com/493068
SubjectCriminal
CourtAllahabad High Court
Decided OnNov-15-2008
JudgeSaroj Bala and ;B.N. Shukla, JJ.
Reported in2009CriLJ1677
AppellantOm Prakash and ors.
RespondentState of U.P.
Cases ReferredHarjit. Singh and Ors. v. State of Punjab
Excerpt:
- land acquisition act, 1894 [c.a. no. 1/1894]. section 4; [sushil harkauli, s.k. singh & krishna murari, jj] acquisition of land held, court cannot issue a writ of mandamus directing the state authorities to acquire a particular land. land acquisition is not purely ministerial act to be performed by executive no direction in nature of mandamus whether interim or final can be issued by court under article 226 necessarily to acquire particular land in public interest. land acquisition is not a purely ministerial act to be performed by the executive and therefore, no mandamus can be issued by the court in exercise of its power under article 226 of the constitution, whether suo motu or otherwise, whether in public interest litigation or otherwise directing acquisition of land under the provisions of land acquisition act, 1894. it would, however, be open to the court in exercise of that power to invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time frame. however, the power of the court under article 226 must necessarily stop at that. thereafter, if the decision taken by the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the court to quash the decision and to require reconsideration. but no direction in the nature of mandamus whether interim or final can be issued by the court under article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose. section 4; compulsory acquisition of land powers of state government held, renewal of lease in favour of petitioners would not take away power of state government of compulsory acquisition of land. renewal of lease would at best be taken into consideration for determining quantum of compensation. - the first informant having refused to deliver the keys he as well as his wife and father were subjected to assault with lathi, sticks, kicks and fists. the keys of the almirahs and iron safe kept in school premises were in his custody which were being demanded by the accused. his refusal to handover the keys was disliked by them. 1) deposed that the economic condition of parma was very poor. kela ram having refused to deliver the keys he as well as his father and wife were subjected to assault by blunt objects.saroj bala, j.1. this criminal appeal is directed against the judgment and order dated 26-8-1982 passed by the additional sessions judge-i, bijnor in sessions trial no. 337 of 1981 whereby convicting the accused appellant no. 1 om prakash under sections 302 i.p.c. and 307/34 i.p.c. and appellants no. 2 and 3 jai prakash and ram kumar under sections 302, 302/34 and 307/34 i.p.c. and sentencing them to rigorous imprisonment for life for the offence under section 302/34 and five years' rigorous imprisonment for the offence under section 307/34 i.p.c. all the sentences were to run concurrently. the appeal filed on behalf of accused appellant no. 4 ganga ram stood abated vide order dated 9-10-2007.2. the prosecution case as unfolded at the trial was that the first informant kela ram (p.w.3) was a peon in janta junior high school, ganjalpur and suresh chand (p.w. 1) was the manager of said school. there was a dispute over the office of manager between suresh chand (p.w.1) and accused appellant om prakash. the proceedings under section 107/116 cr.p.c. were initiated against both the parties and the date 15-6-1981 was fixed for hearing of that case. the accused appellants came to the house of the first informant two days prior to the incident and demanded the keys of the almirahs, kept in the school premises. the complainant said that he would handover the keys only after receiving an order from suresh chand. the accused om prakash being annoyed with his reply threatened the first informant with dire consequences. on 5-6-81 at about 10.30 p.m. the, accused om prakash armed with a gun along with co-accused jai prakash, ganga ram and ram kumar all armed with lathi and sticks came at the house of first informant and demanded the keys of the almirahs. the first informant having refused to deliver the keys he as well as his wife and father were subjected to assault with lathi, sticks, kicks and fists. accused om prakash started firing from his gun when he raised alarm. the outcries raised by the first informant attracted suresh chand (p.w. 1), kishan (victim) yasin, (p.w.2), parma (d.w. 1) and gullar to the spot. seeing the witnesses the accused fled away from the house of first informant. kishan, parma and yasin sustained fire arm injuries and first informant, his father and wife suffered blunt object injuries. kishan died at the spot due to gun shot injuries. the written report (ext. ka-1) was scribed by suresh chand (p.w. 1) at the dictation of kela ram and was lodged at the police station mandawar on 6-6-81 at 1.30 a.m. on the basis of written report the f.i.r. (ext. ka-7) was prepared by constable mahesh chand sharma (p.w. 4) and crime was registered in the general diary (ext. ka-8). the special report was sent through c. p. om prakash on 6-6-81 at 7.30 a.m. and an entry in this regard was made in the general diary (ext. ka-9). the accused om prakash, jai prakash and ram kumar were arrested the same day and were lodged in the lock up of police station at 12.15 o'clock noon and entry (ext. ka-11) in this regard was made in the g.d.3. the inquest on the dead body of kishan was conducted by s.h.o. k. k. tyagi (p.w.7). the inquest memo, photo-lash, challan lash, letter to c.m.o. (exts. ka 13 to ka-16) were prepared during the course of inquest and sealed dead body was handed over to c. p. surendra singh (p.w. 5) and ishan singh for transportation to the mortuary of civil hospital, bijnor for post-mortem. the blood stained bedding was taken in police custody under the memo (ext. ka3). the torches of the witnesses were inspected and handed over under the memo (ext. ka-2) and (ext. ka-17). the site plan of the place of offence (ext. ka-18) was prepared. two empty cartridges were recovered from the spot and memo (ext. ka-4) was prepared. at the time of arrest of accused om prakash recovery of single barrel gun no. 2242-71 and two live cartridges . 12 bore was made from his possession and memo (ext. ka-19) was prepared.4. the autopsy on the dead body of kishan was conducted by dr. s. p. saxena on 6-6-81 at 4 p.m. he noticed the following ante-mortem injuries:1. lacerated wound. 5 cm x .5 cm on the left side of face 3.0 cm, below the left ear. on exposing one pellet embodied in muscle recovered.2. lacerated multiple wounds 4 in no. in the area of 8.0 cm. x 4. 0 cm on the left side of chest 2.0 cm. lateral to left nipple, wound measuring .7 x .5 cm, .6 cm. x .5 cm, .5 cm, x .5 cm, .5 cm x 4 om respectively. on ex-posing underlying muscle lacerated in, between the 4th & 5th rib of left side, pleura lungs and pevicordum luevatu. muscle of left side of heart lacerated, two pellets recovered from the left side of heart muscle 1/2 1b, of blood present in the left thoracic cavity.3. lacerated wound on the left lower 1/3 region of anterior lateral of chest .5 cm x .5 cm 13 cm below the left nipple. on exposing one pellet recovered from the wall of stomach. underlying peritonium is lacerated.4. lacerated wound .5 cm x .5 cm on the anterior lateral surface of lower part of left side chest 5.0 cm below the injury no. 3 vertically. on exposing the muscle plus peritonium lacerated. on further exposing, bowl of large intestine was lacerated.one pellet recovered from large intestine.5. lacerated wound .5 cm x .5 cm on the left side of abdomen 10 cm horizontally lateral on left side to the umbilicus.on exposing underlying muscle, peritonium and bowl of small intestine was lacerated.one pellet recovered from the bowl of small intestine.1 1b. of blood present in abdominal cavity.6. lacerated wound .5 cm x .5 cm on the left side of neck. 6.0 cm above the left sternocloricular joint which was skin deep.7. lacerated wound .6 cm x .5 cm on the back of left side neck at the root. one pellet recovered from the muscle on exposing.8. lacerated wound oval in shape .6 cm x .4 cm on the left shoulder 4.0 cm medial to top of left shoulder. on exposing one pellet embedded in the muscle recovered.9. lacerated wound 10 in no. in area of 17.0 cm x 4.0 cm on the anterior lateral surface of left upper arm each measuring in between .7 cm x .5 cm to .4 cm x .4 cm respectively.on exposing one pellet recovered from this muscle.10. lacerated wound 3 in no. in area of , 5. 0 cm x 3.0 cm on the front of left shoulder, each measuring 6 cm x .4 cm, .5 cm x 5 cm, and .5 cm x .4 cm respectively.the death was caused by shock and aemorrhage as a result of ante-mortem injuries.5. the injured kela ram was medically examined by dr. b. c. sharma on 6-6-81 at 9.15 a.m. and a lacerated wound 1 cm x 1/2 cm x muscle deep, oblique on the root of the left thumb on its palmer side caused by blunt object simple nature and about quarter day old was found as noted in the injury report (ext. ka. 21).6. the injured sukhan (p.w.6) was medically examined by dr. b. c. sharma on 6-6-81 at 9 a.m. and following injuries were found on his body as per injury report (ext. ka-22).1. lacerated wound 2 1/2 cm x 1/2 cm x scalp deep oblique, on left head, 7 1/2 cm above the left ear.2. lacerated wound 3 cm x 1/2 cm x muscle deep oblique on the upper 1/3 of the left index finger. advised x-ray.3. complaint of pain on the left abdomen but no mark of any injury is seen.the injuries were caused by blunt object and were about quarter day old.7. the injured smt. muniya was medically examined at 9.45 a.m. by the same doctor and following injuries were noticed on her body as per injury report (ext. ka. 23):1. contusion 4 cm x 2 cm on left upper and back side of the head 7 cm upward and backward from the left ear.2. contusion 4 1/2 cm x 2 cm on back of left shoulder.duration- 1/4 day, caused by blunt object.the injured yasin was medically examined the same day at 9.30 a.m. and following injuries were noticed on his body as per injury report (ext. ka-24):1. abrasion 0.3 cm x 0.3 cm, on left lower 1/3 cm x medial of the left thigh 6 cm above the left knee joint. no blackening, no tattooing and no burning.2. abrasion 1/2 cm x 0.3 cm on lower 1/3 of the back bone. no blackening, no tattooing and no burning.duration- 1/4 day. simple, caused by blunt object.the injured parma (d.w.1) was medically examined on 10-6-81 at 11 a.m. and following injuries were found on his body as noted in the injury report (ext. ka. 25):1. black dried scab abrasion 0.2 cm x 0.2 cm on the left thumb on the just opposite of the nail. no tattooing, no burning, about four days old.2. brownish wound 0.3 cm x 0.2 cm on the left upper thumb on the medial border and mid of the left thumb nail, this nail border broken. no burning, no tattooing.duration- not possible to give. no pus. slight tenderness was present. advised x-ray.8. the investigating officer (p.w.7) after interrogation of the witnesses and completing all the necessary formalities submitted the charge sheet against the accused.9. after committal, charges were framed under sections 302, 302/34 and 307/34 i.p.c. the accused having pleaded not guilty, they were tried.10. at the trial the prosecution examined suresh chand (p.w.1), yasin (p.w.2), kela ram (p.w.3) and sukhan (p.w.6) as witnesses of fact. the rest of the evidence was of formal nature about which reference has been made as above.11. the plea of the accused persons was that of total denial. it was admitted that all the accused were members of one family and belonged to the same group. it was admitted that the proceedings under section 107/116 cr.p.c. were initiated against both the parties and were pending. it was not disputed that a decree was passed by civil court in the suit instituted by suresh chand and an appeal filed by the accused was pending before the high court. it was not denied that the deceased kishan was step son of parma. the accused om prakash stated that they were in possession of the school and their lock was placed over the school premises. the keys of the school were not in the custody of kela ram. he was called at the police station and his gun was taken. the witness parma (d.w. 1) was examined in defence.12. the trial court after analysing the entire evidence and circumstances came to the conclusion that the prosecution proved its case against the accused beyond reasonable doubt and recorded the finding of conviction.13. we have heard sri v.p. srivastava, learned senior advocate appearing on behalf of the appellants and learned a.g.a. for the state and have scrutinised the trial court record.14. the finding of conviction has been assailed on the grounds: according to the f.i.r. the injured witnesses kela ram and yasin sustained pellet injuries but their injury reports reveal blunt object injuries; deceased kishan was son of parma (d.w. 1), according to whom he (victim) was done to death by kela ram by opening fire from gun; dead body was found in the house of parma; the witness parma also sustained gun shot injuries; the target of attack was kela ram but he sustained a minor injury which creates doubt with regard to the genesis of crime; the firing place was in front of the house of parma; the witness parma being the father of deceased the manner of incident as stated by him should have been given weight. the learned counsel alternatively argued that accused om prakash had no intention to kill the victim. the offence would fall under part ii of section 304 i.p.c. and rest of the accused are liable for the offence under section 323 i.p.c.15. the learned a.g.a. supporting the finding of conviction argued that the date, time and place of the offence are admitted. the deceased was not real son of parma (d.w. 1). the witness parma had married the mother of deceased kishan and kishan was the son born to her out of the wedlock of her previous husband. the mother of kishan had died long before the incident. parma was a prosecution witness and he having been won over was produced by the defence. the prosecution evidence consisted of three injured witnesses.16. coming to the prosecution evidence the witness kela ram (p.w.3), the first informant supported the prosecution story as narrated in the f.i.r.. he deposed that the harijans of his village had formed a party and on 26-1-81 took an unlawful possession over janta junior high school. they removed the school board and replaced it with the board having the name ambedkar junior high school and held a function under the presidentship of v.p. mauriya, a political leader and placed locks over the school premises. the keys of the almirahs and iron safe kept in school premises were in his custody which were being demanded by the accused. his refusal to handover the keys was disliked by them. on 5-6-81 at about 8.30 p.m. the accused om prakash armed with gun along with accused jai prakash, ganga ram and ram kumar armed with lathis came to his house and again demanded the keys of the school. he having refused to oblige the accused persons subjected him to assault with lathi kicks and fists. his father sukhan and wife miniya were assaulted when they tried to intervene. the accused om prakash opened fire from his gun and caused injuries to kishan and others.17. the witness suresh chand (p.w.1) was manager of janta junior high school. he deposed that janta junior high school was established and registered in the year 1973. temporary recognition was granted to the school by the education department. the school building was constructed with donation given by the members of the management committee. he was manager of the school on the date of the incident. on 26-1-81 om prakash and others with the help of people of their community changed the name of school as dr. ambedkar junior high school after deleting the name of janta junior high school and took unlawful possession over the school building. on 17-5-81 the accused persons placed their locks over the school premises and stopped the functioning of the school. the proceedings under section 107/116 cr.p.c. were initiated by the police. the almirahs fixed in the school premises were under his lock and key and keys were in the custody of kela ram. kela ram refused to handover the keys whenever demanded by the accused. the accused had threatened kela ram two or three days before the incident as he refused to deliver the keys. kela ram was working as peon in the school. narrating the incident he deposed that at about 10.30 p.m. he was at his house and woke up on hearing the sound of fire and alarm coming from the side of the house of kela ram. he hurriedly reached there carrying torch and lathi. the witness gullar, yasin, parma, bhagwant and kishan were present there. he flashed torch light and saw the accused persons subjecting kela ram, his wife and father, to assault. a lantern was burning in the verandah (usara). the accused persons came at the common passage from the house of kela ram on being challenged, by the witnesses. the witnesses came in front of the house of raja ram and flashed torch light towards the direction of accused. at this accused om prakash opened two shots of fire with intention to kill them and caused injuries to kishan, yasin and parma. kishan died on the passage.18. the witness yasin (p.w.2) reached the spot flashing torch light on hearing the sound of assault and firing and saw the accused subjecting kela ram, kishan, his wife and father sukhan, to assault. accused om prakash opened two shots of fire at them which hit kishan.19. sukhan (p.w.6) deposed that the accused subjected him, his son and daughter-in-law to assault by giving kick and fist blows. the accused reached southern passage on being challenged by the witnesses. accused om prakash opened two shots of fire at the passage situated in front of his house and thereafter the accused fled away.20. yasin (p.w.2), kela ram (p.w.3), sukhan (p.w.6) are injured witnesses. they were medically examined on 6-6-81 between 9 a.m. to 9.45 a.m. simple injuries caused by the blunt object were found on their bodies by dr. b. c. sharma. the incident took place at two places. the witnesses kela ram and sukhan were subjected to assault in the chhappar outside their house. the injuries by blunt object were caused to kela ram, sukhan and munni devi by accused appellants jai prakash, ram kumar and ganga ram. accused appellant om prakash was armed with his licensed gun. the injured witnesses and witness suresh chand (p.w. 1) have stated without mincing words that two shots were fired by the accused appellant om prakash on the public way near the house of raja ram which hit the victim kishan. the witness yasin (p.w.2) and parma (d.w. 1) also sustained pellet injuries. the injured kela ram, sukhan and munni devi were subjected to assault by wielding of lathi, kicks and fist blows. the accused appellant om prakash was arrested on 19-6-81 and licensed gun and two empty cartridges recovered from him were sent for examination to the ballistic expert. the ballistic expert reports (exts. ka- 27 and ka-28) show that the empty cartridges recovered from the spot were fired from the licensed gun of accused appellant om prakash. the ballistic expert report having been admitted by the defence, the ballistic expert was not summoned by the trial court. the empty cartridges recovered were sealed on the spot. the licensed gun of accused appellant was taken in police custody at the time of his arrest and was sealed. the sealed bundle was deposited by the investigating officer at the police station on 6-6-81 and entry in this regard was made by c. p. naresh chandra in the g.d. (ext. ka-11). the witness (p.w. 4) categorically stated that so long the articles remained at the police station the seals were intact and no body got the opportunity to tamper with the sealed articles. the witness was not cross-examined by the defence. the ballistic expert found the seals of the bundle intact. the investigating officer k. k. tyagi (p.w. 7) testified that the recovered articles were sealed by him at the spot and they were deposited at the police station in that very state. on the face of this evidence no fault can be found with the ballistic expert reports (exts. ka. 27 and ka. 28)21. at this juncture it would be appropriate to examine the manner of the incident as spoken by the defence witness parma (d.w. 1). the victim was his step son. the witness suresh chand (p.w. 1) deposed that the economic condition of parma was very poor. parma and kishan had no interest in school. parma (d.w.1) deposed that kela ram (p.w.3) armed with gun and suresh chand aimed with lathi came at the baithak outside his house at about 9.30 p.m. on 5-6-81 and kela ram exhorting that 'you always keep the company of om prakash opened fire at kishan. in the cross-examination he denied that 8-9 days after the incident he had instituted a complaint with regard to the murder of kishan against ghasita, ram lal, ram swaroop and ram bahadur. he denied that his statement was recorded in the said complaint. he denied having stated that on 15-6-01 at about 6 p.m. accused ghasita, ram lal, ram swaroop and ram bahadur threatened to kill him if he deposed against the accused om prakash and others. the witness parma was present at the place of incident when | the investigating officer reached there the same night and after inquest on the dead body he along with constables and dead body went to bijnor but he did not make any complaint to the higher authorities at bijnor that his son was killed by kela ram. kishan not being real son of parma it is quite likely that he was won over by the accused after the incident. moreover kela ram (p.w.3) and suresh chand (p.w. 1) were not going to get any advantage out of the killing of kishan. according to parma the shot was fired by kela ram from a distance of one pace but no blackening, tattooing or singing was found around the injuries of victim by the doctor. the prosecution witnesses have stated that shots were fired by accused om prakash from a distance of more than 6 or 7 paces. in this backdrop the testimony of parma (d.w. 1) with regard to manner of incident does not inspire confidence.22. the evidence of eye witnesses suresh chand (p.w.i), yasin (p.w.2), kela ram (p.w.3) and sukhan (p.w.6) brings out that accused appellants jai prakash, ram kumar and ganga ram caused injuries to kela ram, sukhan, munni devi by wielding of lathi, kicks and fists and accused om prakash caused the death of kishan on the public way by opening fire from his licensed gun. the accused appellant om prakash opened fire from his licensed gun aiming at the witnesses and having killed kishan he cannot escape the liability for the offence under section 302 i.p.c.23. this brings us to the question of joint liability of accused appellants no. 2 and 3 jai prakash and ram kumar for the offence under section 302 read with section 34 i.p.c. these appellants along with co-accused appellant om prakash went to the house of kela ram (p.w.3) and demanded the keys of the almirah kept in school premises. kela ram having refused to deliver the keys he as well as his father and wife were subjected to assault by blunt objects. all the appellants were armed with blunt objects. they caused injuries with lathis, kicks and fists. a single lacerated wound on root of left thumb on its palmer side was found on the person of kela ram. two lacerated wounds muscle deep on head and left index finger were found on the body of sukhan. the injured munni devi suffered two contusions on left upper back side of head and back of left shoulder. according to medical reports (exts. ka-21, ka-22, ka-23) the injuries were of simple nature. accused appellants no. 2 and 3 have been convicted under section 307 read with section 34 and section 302 read with section 34 i.p.c. to constitute an offence under section 307 i.p.c. two ingredients have to be established namely (i) intention or knowledge relating to commission of murder and (ii) the doing of act towards it. for an offence under section 307 i.p.c., presence of intention or knowledge is material and not the consequence of the actual act done for the purpose of carrying out the intention. in the absence of intention or knowledge there can be no offence of attempt to murder. the injured witnesses kela ram (p.w.3) and sukhan (p.w.6) have riot stated that the accused appellants no. 2 and 3 intended to kill them! the evidence shows that they received simple injuries. in the absence of intention or knowledge which is necessary ingredient of section 307 i.p.c, the accused appellants no. 1, 2 and 3 cannot be held guilty for the offence under section 307 i.p.c. the accused appellants having voluntarily caused simple hurt to the witnesses kela ram, sukhan and munni devi in furtherance of their common intention, they are liable for the offence under section 323/34 i.p.c.24. the depositions of the eye witnesses reveal that shots were fired by the accused appellant no. 1 om prakash on the public way from his gun killing kishan. the accused appellants no. 2 and 3 had gone with co-accused om prakash to the house of kela ram to have the keys of almirah kept in the premises of school and in furtherance of their common intention they subjected kela ram and others to assault and caused simple injuries. after coming out of the house of kela ram the gun shots were fired by accused appellant no. 1 om prakash on the public way which hit kishan. the appellants no. 2 and 3 were not conversant with the intention of their companion om prakash who committed murder of kishan. to constitute common intention it is necessary that the intention of each one of them should be known to the rest of the accused. there was no common intention or prearranged plan to kill kishan nor the accused appellants no. 2 and 3 had participated in any manner in the act of murder of kishan. the apex court in the case of harjit. singh and ors. v. state of punjab : [2002]supp1scr581 has held that 'common intention is a state of mind of an accused which can be inferred objectively from his conduct displayed in the course of commission of crime as also prior and subsequent attendant circumstances. mere participation in the crime with others is not sufficient to attribute common intention to one of others involved in the crime. the sub-jective element in common intention therefore should be proved by objective test. it is only then one accused can be made vicariously 'liable for the acts and deeds of the other co-accused.' the accused appellants no. 2 and 3 had not participated in the commission of murder. the shots were fired by accused appellant om prakash on the public way while fleeing away from the house of kela ram. in view of the above discussion the accused appellants no. 2 and 3, namely jai prakash and ram kumar cannot be held liable for the offence under section 302 with the aid of section 34 i.p.c. and they are entitled to be acquitted of the charge under section 302 read with 34 i.p.c.25. the accused appellant no. 1 om prakash having caused the death of victim kishan by opening fire by his licensed gun he cannot escape liability of conviction under section 302 i.p.c.26. partly allowing the appeal the order of conviction and sentence under section 302 i.p.c. passed by the trial court against accused appellant no. 1 om prakash is affirmed. the accused appellants no. 2 and 3 jai prakash and ram kumar are acquitted of the charge under section 302 read with 34 i.p.c. the conviction of all the accused appellants no. 1 to 3 for the offence under section 307/34 i.p.c. is altered to section 323 read with 34 i.p.c. and each of them is sentenced to rigorous imprisonment for one year. the impugned judgment and order stands modified accordingly.27. all the appellants were released on bail by the order of this court dated 22-9-1982. the chief judicial magistrate, bijnor shall cause them to be arrested and lodged in jail to serve out the sentence awarded by the trial court and modified by us.28. certify the judgment to the lower court within a week. the record of the case be transmitted to the court below immediately. the compliance shall be reported by the chief judicial magistrate, bijnor within four weeks from date of receiving the copy of this order.
Judgment:

Saroj Bala, J.

1. This Criminal appeal is directed against the judgment and order dated 26-8-1982 passed by the Additional Sessions Judge-I, Bijnor in Sessions Trial No. 337 of 1981 whereby convicting the accused appellant No. 1 Om Prakash under Sections 302 I.P.C. and 307/34 I.P.C. and appellants No. 2 and 3 Jai Prakash and Ram Kumar under Sections 302, 302/34 and 307/34 I.P.C. and sentencing them to rigorous imprisonment for life for the offence under Section 302/34 and five years' rigorous imprisonment for the offence under Section 307/34 I.P.C. All the sentences were to run concurrently. The appeal filed on behalf of accused appellant No. 4 Ganga Ram stood abated vide order dated 9-10-2007.

2. The prosecution case as unfolded at the trial was that the first informant Kela Ram (P.W.3) was a peon in Janta Junior High School, Ganjalpur and Suresh Chand (P.W. 1) was the Manager of said school. There was a dispute over the office of Manager between Suresh Chand (P.W.1) and accused appellant Om Prakash. The proceedings under Section 107/116 Cr.P.C. were initiated against both the parties and the date 15-6-1981 was fixed for hearing of that case. The accused appellants came to the house of the first informant two days prior to the incident and demanded the keys of the almirahs, kept in the school premises. The complainant said that he would handover the keys only after receiving an order from Suresh Chand. The accused Om Prakash being annoyed with his reply threatened the first informant with dire consequences. On 5-6-81 at about 10.30 p.m. the, accused Om Prakash armed with a gun along with co-accused Jai Prakash, Ganga Ram and Ram Kumar all armed with lathi and sticks came at the house of first informant and demanded the keys of the almirahs. The first informant having refused to deliver the keys he as well as his wife and father were subjected to assault with lathi, sticks, kicks and fists. Accused Om Prakash started firing from his gun when he raised alarm. The outcries raised by the first informant attracted Suresh Chand (P.W. 1), Kishan (victim) Yasin, (P.W.2), Parma (D.W. 1) and Gullar to the spot. Seeing the witnesses the accused fled away from the house of first informant. Kishan, Parma and Yasin sustained fire arm injuries and first informant, his father and wife suffered blunt object injuries. Kishan died at the spot due to gun shot injuries. The written report (Ext. Ka-1) was scribed by Suresh Chand (P.W. 1) at the dictation of Kela Ram and was lodged at the police station Mandawar on 6-6-81 at 1.30 a.m. On the basis of written report the F.I.R. (Ext. Ka-7) was prepared by constable Mahesh Chand Sharma (P.W. 4) and crime was registered in the General diary (Ext. Ka-8). The special report was sent through C. P. Om Prakash on 6-6-81 at 7.30 a.m. and an entry in this regard was made in the General diary (Ext. Ka-9). The accused Om Prakash, Jai Prakash and Ram Kumar were arrested the same day and were lodged in the lock up of police station at 12.15 O'clock noon and entry (Ext. Ka-11) in this regard was made in the G.D.

3. The inquest on the dead body of Kishan was conducted by S.H.O. K. K. Tyagi (P.W.7). The inquest memo, photo-lash, challan lash, letter to C.M.O. (Exts. Ka 13 to Ka-16) were prepared during the course of inquest and sealed dead body was handed over to C. P. Surendra Singh (P.W. 5) and Ishan Singh for transportation to the mortuary of Civil Hospital, Bijnor for post-mortem. The blood stained bedding was taken in police custody under the memo (Ext. Ka3). The torches of the witnesses were inspected and handed over under the memo (Ext. Ka-2) and (Ext. Ka-17). The site plan of the place of offence (Ext. Ka-18) was prepared. Two empty cartridges were recovered from the spot and memo (Ext. Ka-4) was prepared. At the time of arrest of accused Om Prakash recovery of single barrel gun No. 2242-71 and two live cartridges . 12 bore was made from his possession and memo (Ext. Ka-19) was prepared.

4. The autopsy on the dead body of Kishan was conducted by Dr. S. P. Saxena on 6-6-81 at 4 p.m. He noticed the following ante-mortem injuries:

1. Lacerated wound. 5 cm x .5 cm on the left side of face 3.0 cm, below the left ear. On exposing one pellet embodied in muscle recovered.

2. Lacerated multiple wounds 4 in No. in the area of 8.0 cm. x 4. 0 cm on the left side of chest 2.0 cm. lateral to left nipple, wound measuring .7 x .5 cm, .6 cm. x .5 cm, .5 cm, x .5 cm, .5 cm x 4 om respectively. On ex-posing underlying muscle lacerated in, between the 4th & 5th rib of left side, pleura lungs and pevicordum luevatu. Muscle of left side of heart lacerated, two pellets recovered from the left side of heart muscle 1/2 1b, of blood present in the left thoracic cavity.

3. Lacerated wound on the left lower 1/3 region of anterior lateral of chest .5 cm x .5 cm 13 cm below the left nipple. On exposing one pellet recovered from the wall of stomach. Underlying peritonium is lacerated.

4. Lacerated wound .5 cm x .5 cm on the anterior lateral surface of lower part of left side chest 5.0 cm below the injury No. 3 vertically. On exposing the muscle plus peritonium lacerated. On further exposing, bowl of large intestine was lacerated.

One pellet recovered from large intestine.

5. Lacerated wound .5 cm x .5 cm on the left side of abdomen 10 cm horizontally lateral on left side to the umbilicus.

On exposing underlying muscle, peritonium and bowl of small intestine was lacerated.

One pellet recovered from the bowl of small intestine.

1 1b. of blood present in abdominal cavity.

6. Lacerated wound .5 cm x .5 cm on the left side of neck. 6.0 cm above the left sternocloricular joint which was skin deep.

7. Lacerated wound .6 cm x .5 cm on the back of left side neck at the root. One pellet recovered from the muscle on exposing.

8. Lacerated wound oval in shape .6 cm x .4 cm on the left shoulder 4.0 cm medial to top of left shoulder. On exposing one pellet embedded in the muscle recovered.

9. Lacerated wound 10 in No. in area of 17.0 cm x 4.0 cm on the anterior lateral surface of left upper arm each measuring in between .7 cm x .5 cm to .4 cm x .4 cm respectively.

On exposing one pellet recovered from this muscle.

10. Lacerated wound 3 in No. in area of , 5. 0 cm x 3.0 cm on the front of left shoulder, each measuring 6 cm x .4 cm, .5 cm x 5 cm, and .5 cm x .4 cm respectively.

The death was caused by shock and aemorrhage as a result of ante-mortem injuries.

5. The injured Kela Ram was medically examined by Dr. B. C. Sharma on 6-6-81 at 9.15 a.m. and a lacerated wound 1 cm x 1/2 cm x muscle deep, oblique on the root of the left thumb on its palmer side caused by blunt object simple nature and about quarter day old was found as noted in the injury report (Ext. Ka. 21).

6. The injured Sukhan (P.W.6) was medically examined by Dr. B. C. Sharma on 6-6-81 at 9 a.m. and following injuries were found on his body as per injury report (Ext. Ka-22).

1. Lacerated wound 2 1/2 cm x 1/2 cm x scalp deep oblique, on left head, 7 1/2 cm above the left ear.

2. Lacerated wound 3 cm x 1/2 cm x muscle deep oblique on the upper 1/3 of the left index finger. Advised x-ray.

3. Complaint of pain on the left abdomen but no mark of any injury is seen.

The injuries were caused by blunt object and were about quarter day old.

7. The injured Smt. Muniya was medically examined at 9.45 a.m. by the same doctor and following injuries were noticed on her body as per injury report (Ext. Ka. 23):

1. Contusion 4 cm x 2 cm on left upper and back side of the head 7 cm upward and backward from the left ear.

2. Contusion 4 1/2 cm x 2 cm on back of left shoulder.

Duration- 1/4 day, caused by blunt object.

The injured Yasin was medically examined the same day at 9.30 a.m. and following injuries were noticed on his body as per injury report (Ext. Ka-24):

1. Abrasion 0.3 cm x 0.3 cm, on left lower 1/3 cm x medial of the left thigh 6 cm above the left knee joint. No blackening, no tattooing and no burning.

2. Abrasion 1/2 cm x 0.3 cm on lower 1/3 of the back bone. No blackening, no tattooing and no burning.

Duration- 1/4 day. Simple, caused by blunt object.

The injured Parma (D.W.1) was medically examined on 10-6-81 at 11 a.m. and following injuries were found on his body as noted in the injury report (Ext. Ka. 25):

1. Black dried scab abrasion 0.2 cm x 0.2 cm on the left thumb on the just opposite of the nail. No tattooing, no burning, about four days old.

2. Brownish wound 0.3 cm x 0.2 cm on the left upper thumb on the medial border and mid of the left thumb nail, this nail border broken. No burning, no tattooing.

Duration- not possible to give. No pus. Slight tenderness was present. Advised x-ray.

8. The investigating officer (P.W.7) after interrogation of the witnesses and completing all the necessary formalities submitted the charge sheet against the accused.

9. After committal, charges were framed under Sections 302, 302/34 and 307/34 I.P.C. The accused having pleaded not guilty, they were tried.

10. At the trial the prosecution examined Suresh Chand (P.W.1), Yasin (P.W.2), Kela Ram (P.W.3) and Sukhan (P.W.6) as witnesses of fact. The rest of the evidence was of formal nature about which reference has been made as above.

11. The plea of the accused persons was that of total denial. It was admitted that all the accused were members of one family and belonged to the same group. It was admitted that the proceedings under Section 107/116 Cr.P.C. were initiated against both the parties and were pending. It was not disputed that a decree was passed by Civil court in the suit instituted by Suresh Chand and an appeal filed by the accused was pending before the High Court. It was not denied that the deceased Kishan was step son of Parma. The accused Om Prakash stated that they were in possession of the school and their lock was placed over the school premises. The keys of the school were not in the custody of Kela Ram. He was called at the police station and his gun was taken. The witness Parma (D.W. 1) was examined in defence.

12. The trial court after analysing the entire evidence and circumstances came to the conclusion that the prosecution proved its case against the accused beyond reasonable doubt and recorded the finding of conviction.

13. We have heard Sri V.P. Srivastava, learned Senior Advocate appearing on behalf of the appellants and learned A.G.A. for the State and have scrutinised the trial court record.

14. The finding of conviction has been assailed on the grounds: According to the F.I.R. the injured witnesses Kela Ram and Yasin sustained pellet injuries but their injury reports reveal blunt object injuries; deceased Kishan was son of Parma (D.W. 1), according to whom he (victim) was done to death by Kela Ram by opening fire from gun; dead body was found in the house of Parma; the witness Parma also sustained gun shot injuries; the target of attack was Kela Ram but he sustained a minor injury which creates doubt with regard to the genesis of crime; the firing place was in front of the house of Parma; the witness Parma being the father of deceased the manner of incident as stated by him should have been given weight. The learned Counsel alternatively argued that accused Om Prakash had no intention to kill the victim. The offence would fall under Part II of Section 304 I.P.C. and rest of the accused are liable for the offence under Section 323 I.P.C.

15. The learned A.G.A. supporting the finding of conviction argued that the date, time and place of the offence are admitted. The deceased was not real son of Parma (D.W. 1). The witness Parma had married the mother of deceased Kishan and Kishan was the son born to her out of the wedlock of her previous husband. The mother of Kishan had died long before the incident. Parma was a prosecution witness and he having been won over was produced by the defence. The prosecution evidence consisted of three injured witnesses.

16. Coming to the prosecution evidence the witness Kela Ram (P.W.3), the first informant supported the prosecution story as narrated in the F.I.R.. He deposed that the Harijans of his village had formed a party and on 26-1-81 took an unlawful possession over Janta Junior High School. They removed the school board and replaced it with the board having the name Ambedkar Junior High School and held a function under the presidentship of V.P. Mauriya, a political leader and placed locks over the school premises. The keys of the almirahs and iron safe kept in school premises were in his custody which were being demanded by the accused. His refusal to handover the keys was disliked by them. On 5-6-81 at about 8.30 p.m. the accused Om Prakash armed with gun along with accused Jai Prakash, Ganga Ram and Ram Kumar armed with lathis came to his house and again demanded the keys of the school. He having refused to oblige the accused persons subjected him to assault with lathi kicks and fists. His father Sukhan and wife Miniya were assaulted when they tried to intervene. The accused Om Prakash opened fire from his gun and caused injuries to Kishan and others.

17. The witness Suresh Chand (P.W.1) was manager of Janta Junior High School. He deposed that Janta Junior High School was established and registered in the year 1973. Temporary recognition was granted to the school by the education department. The school building was constructed with donation given by the members of the management committee. He was manager of the school on the date of the incident. On 26-1-81 Om Prakash and others with the help of people of their community changed the name of school as Dr. Ambedkar Junior High School after deleting the name of Janta Junior High School and took unlawful possession over the school building. On 17-5-81 the accused persons placed their locks over the school premises and stopped the functioning of the school. The proceedings under Section 107/116 Cr.P.C. were initiated by the police. The almirahs fixed in the school premises were under his lock and key and keys were in the custody of Kela Ram. Kela Ram refused to handover the keys whenever demanded by the accused. The accused had threatened Kela Ram two or three days before the incident as he refused to deliver the keys. Kela Ram was working as peon in the school. Narrating the incident he deposed that at about 10.30 p.m. he was at his house and woke up on hearing the sound of fire and alarm coming from the side of the house of Kela Ram. He hurriedly reached there carrying torch and lathi. The witness Gullar, Yasin, Parma, Bhagwant and Kishan were present there. He flashed torch light and saw the accused persons subjecting Kela Ram, his wife and father, to assault. A lantern was burning in the verandah (Usara). The accused persons came at the common passage from the house of Kela Ram on being challenged, by the witnesses. The witnesses came in front of the house of Raja Ram and flashed torch light towards the direction of accused. At this accused Om Prakash opened two shots of fire with intention to kill them and caused injuries to Kishan, Yasin and Parma. Kishan died on the passage.

18. The witness Yasin (P.W.2) reached the spot flashing torch light on hearing the sound of assault and firing and saw the accused subjecting Kela Ram, Kishan, his wife and father Sukhan, to assault. Accused Om Prakash opened two shots of fire at them which hit Kishan.

19. Sukhan (P.W.6) deposed that the accused subjected him, his son and daughter-in-law to assault by giving kick and fist blows. The accused reached southern passage on being challenged by the witnesses. Accused Om Prakash opened two shots of fire at the passage situated in front of his house and thereafter the accused fled away.

20. Yasin (P.W.2), Kela Ram (P.W.3), Sukhan (P.W.6) are injured witnesses. They were medically examined on 6-6-81 between 9 a.m. to 9.45 a.m. Simple injuries caused by the blunt object were found on their bodies by Dr. B. C. Sharma. The incident took place at two places. The witnesses Kela Ram and Sukhan were subjected to assault in the Chhappar outside their house. The injuries by blunt object were caused to Kela Ram, Sukhan and Munni Devi by accused appellants Jai Prakash, Ram Kumar and Ganga Ram. Accused appellant Om Prakash was armed with his licensed gun. The injured witnesses and witness Suresh Chand (P.W. 1) have stated without mincing words that two shots were fired by the accused appellant Om Prakash on the public way near the house of Raja Ram which hit the victim Kishan. The witness Yasin (P.W.2) and Parma (D.W. 1) also sustained pellet injuries. The injured Kela Ram, Sukhan and Munni Devi were subjected to assault by wielding of lathi, kicks and fist blows. The accused appellant Om Prakash was arrested on 19-6-81 and licensed gun and two empty cartridges recovered from him were sent for examination to the ballistic expert. The ballistic expert reports (Exts. Ka- 27 and Ka-28) show that the empty cartridges recovered from the spot were fired from the licensed gun of accused appellant Om Prakash. The ballistic expert report having been admitted by the defence, the ballistic expert was not summoned by the trial court. The empty cartridges recovered were sealed on the spot. The licensed gun of accused appellant was taken in police custody at the time of his arrest and was sealed. The sealed bundle was deposited by the investigating officer at the police station on 6-6-81 and entry in this regard was made by C. P. Naresh Chandra in the G.D. (Ext. Ka-11). The witness (P.W. 4) categorically stated that so long the articles remained at the police station the seals were intact and no body got the opportunity to tamper with the sealed articles. The witness was not cross-examined by the defence. The ballistic expert found the seals of the bundle intact. The investigating officer K. K. Tyagi (P.W. 7) testified that the recovered articles were sealed by him at the spot and they were deposited at the police station in that very state. On the face of this evidence no fault can be found with the ballistic expert reports (Exts. Ka. 27 and Ka. 28)

21. At this juncture it would be appropriate to examine the manner of the incident as spoken by the defence witness Parma (D.W. 1). The victim was his step son. The witness Suresh Chand (P.W. 1) deposed that the economic condition of Parma was very poor. Parma and Kishan had no interest in school. Parma (D.W.1) deposed that Kela Ram (P.W.3) armed with gun and Suresh Chand aimed with lathi came at the baithak outside his house at about 9.30 p.m. on 5-6-81 and Kela Ram exhorting that 'you always keep the company of Om Prakash opened fire at Kishan. In the cross-examination he denied that 8-9 days after the incident he had instituted a complaint with regard to the murder of Kishan against Ghasita, Ram Lal, Ram Swaroop and Ram Bahadur. He denied that his statement was recorded in the said complaint. He denied having stated that on 15-6-01 at about 6 p.m. accused Ghasita, Ram Lal, Ram Swaroop and Ram Bahadur threatened to kill him if he deposed against the accused Om Prakash and others. The witness Parma was present at the place of incident when | the Investigating officer reached there the same night and after inquest on the dead body he along with constables and dead body went to Bijnor but he did not make any complaint to the higher authorities at Bijnor that his son was killed by Kela Ram. Kishan not being real son of Parma it is quite likely that he was won over by the accused after the incident. Moreover Kela Ram (P.W.3) and Suresh Chand (P.W. 1) were not going to get any advantage out of the killing of Kishan. According to Parma the shot was fired by Kela Ram from a distance of one pace but no blackening, tattooing or singing was found around the injuries of victim by the doctor. The prosecution witnesses have stated that shots were fired by accused Om Prakash from a distance of more than 6 or 7 paces. In this backdrop the testimony of Parma (D.W. 1) with regard to manner of incident does not inspire confidence.

22. The evidence of eye witnesses Suresh Chand (P.W.I), Yasin (P.W.2), Kela Ram (P.W.3) and Sukhan (P.W.6) brings out that accused appellants Jai Prakash, Ram Kumar and Ganga Ram caused injuries to Kela Ram, Sukhan, Munni Devi by wielding of lathi, kicks and fists and accused Om Prakash caused the death of Kishan on the public way by opening fire from his licensed gun. The accused appellant Om Prakash opened fire from his licensed gun aiming at the witnesses and having killed Kishan he cannot escape the liability for the offence under Section 302 I.P.C.

23. This brings us to the question of joint liability of accused appellants No. 2 and 3 Jai Prakash and Ram Kumar for the offence under Section 302 read with Section 34 I.P.C. These appellants along with co-accused appellant Om Prakash went to the house of Kela Ram (P.W.3) and demanded the keys of the almirah kept in school premises. Kela Ram having refused to deliver the keys he as well as his father and wife were subjected to assault by blunt objects. All the appellants were armed with blunt objects. They caused injuries with lathis, kicks and fists. A single lacerated wound on root of left thumb on its palmer side was found on the person of Kela Ram. Two lacerated wounds muscle deep on head and left index finger were found on the body of Sukhan. The injured Munni Devi suffered two contusions on left upper back side of head and back of left shoulder. According to medical reports (Exts. Ka-21, Ka-22, Ka-23) the injuries were of simple nature. Accused appellants No. 2 and 3 have been convicted under Section 307 read with Section 34 and Section 302 read With Section 34 I.P.C. To constitute an Offence under Section 307 I.P.C. two ingredients have to be established namely (i) intention or knowledge relating to commission of murder and (ii) the doing of act towards it. For an offence under Section 307 I.P.C., presence of intention or knowledge is material and not the consequence of the actual act done for the purpose of carrying out the intention. In the absence of intention or knowledge there can be no offence of attempt to murder. The injured witnesses Kela Ram (P.W.3) and Sukhan (P.W.6) have riot stated that the accused appellants No. 2 and 3 intended to kill them! The evidence shows that they received simple injuries. In the absence of intention or knowledge which is necessary ingredient of Section 307 I.P.C, the accused appellants No. 1, 2 and 3 cannot be held guilty for the offence under Section 307 I.P.C. The accused appellants having voluntarily caused simple hurt to the witnesses Kela Ram, Sukhan and Munni Devi in furtherance of their common intention, they are liable for the offence under Section 323/34 I.P.C.

24. The depositions of the eye witnesses reveal that shots were fired by the accused appellant No. 1 Om Prakash on the public way from his gun killing Kishan. The accused appellants No. 2 and 3 had gone with co-accused Om Prakash to the house of Kela Ram to have the keys of almirah kept in the premises of school and in furtherance of their common intention they subjected Kela Ram and others to assault and caused simple injuries. After coming out of the house of Kela Ram the gun shots were fired by accused appellant No. 1 Om Prakash on the public way which hit Kishan. The appellants No. 2 and 3 were not conversant with the intention of their companion Om Prakash who committed murder of Kishan. To constitute common intention it is necessary that the intention of each one of them should be known to the rest of the accused. There was no common intention or prearranged plan to kill Kishan nor the accused appellants No. 2 and 3 had participated in any manner in the act of murder of Kishan. The Apex Court in the case of Harjit. Singh and Ors. v. State of Punjab : [2002]SUPP1SCR581 has held that 'common intention is a state of mind of an accused which can be inferred objectively from his conduct displayed in the course of commission of crime as also prior and subsequent attendant circumstances. Mere participation in the crime with others is not sufficient to attribute common intention to one of others involved in the crime. The sub-jective element in common intention therefore should be proved by objective test. It is only then one accused can be made vicariously 'liable for the acts and deeds of the other co-accused.' The accused appellants No. 2 and 3 had not participated in the commission of murder. The shots were fired by accused appellant Om Prakash on the public way while fleeing away from the house of Kela Ram. In view of the above discussion the accused appellants No. 2 and 3, namely Jai Prakash and Ram Kumar cannot be held liable for the offence under Section 302 with the aid of Section 34 I.P.C. and they are entitled to be acquitted of the charge under Section 302 read with 34 I.P.C.

25. The accused appellant No. 1 Om Prakash having caused the death of victim Kishan by opening fire by his licensed gun he cannot escape liability of conviction under Section 302 I.P.C.

26. Partly allowing the appeal the order of conviction and sentence under Section 302 I.P.C. passed by the trial Court against accused appellant No. 1 Om Prakash is affirmed. The accused appellants No. 2 and 3 Jai Prakash and Ram Kumar are acquitted of the charge under Section 302 read with 34 I.P.C. The conviction of all the accused appellants No. 1 to 3 for the offence under Section 307/34 I.P.C. is altered to Section 323 read with 34 I.P.C. and each of them is sentenced to rigorous imprisonment for one year. The impugned judgment and order stands modified accordingly.

27. All the appellants were released on bail by the order of this Court dated 22-9-1982. The Chief Judicial Magistrate, Bijnor shall cause them to be arrested and lodged in jail to serve out the sentence awarded by the trial Court and modified by us.

28. Certify the judgment to the lower court within a week. The record of the case be transmitted to the court below immediately. The compliance shall be reported by the Chief Judicial Magistrate, Bijnor within four weeks from date of receiving the copy of this order.