w w w . L a w y e r S e r v i c e s . i n



Ram Nath & Others v/s State of U.P.


Company & Directors' Information:- RAM-NATH & COMPANY PRIVATE LIMITED [Active] CIN = U24131TN1998PTC040557

Company & Directors' Information:- NATH PRIVATE LIMITED [Active] CIN = U31908PN2013PTC148540

Company & Directors' Information:- RAM NATH AND CO PRIVATE LIMITED [Strike Off] CIN = U26931UP1964PTC002986

Company & Directors' Information:- NATH AND CO LTD [Strike Off] CIN = U15141KL1946PLC000796

    Criminal Appeal No. 2643, 2671 of 1983

    Decided On, 31 May 2019

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE RAMESH SINHA & THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH-I

    For the Appellant: Brijesh Sahai, Md Singh, Advocates. For the Respondent: A.K. Malviya, M.D. Singh, D.G.A, A.G.A.



Judgment Text

Ramesh Sinha, J.

1. The present criminal appeals have been preferred by the appellants against the judgment and order dated 31.10.1983 passed by Sessions Judge, Ghazipur in S.T. No.92 of 1983 convicting and sentencing the appellants Ram Nath, Rama Shanker Pandey, Ram Murat Pandey, Ram Dhani, Ram Autar and Dalsinghar for life imprisonment u/s 302 IPC read with Section 149 IPC. They have been further sentenced to five years R.I u/s 307 IPC read with Section 149 IPC and further sentenced to two years R.I, u/s 148 IPC. All the sentences are directed to run concurrently.

2. The appellants Ram Nath, Ram Dhani and Dalsinghar died during the pendency of the aforesaid appeals and the appeal of Ram Nath, Ram Dhani and Dalsinghar has been ordered to be abated by coordinate Bench of this Court vide order dated 10.8.2017. Hence, the two appeals now survive with respect to appellant Ramashanker Pandey, Ram Murat Pandey and Ram Autar respectively for consideration by this Court.

3. The prosecution case as set-up in the FIR is that the informant Vijay Bahadur Singh submitted a written report at police station Nandganj district Ghazipur stating that yesterday in the evening on 11.7.1982 one Chakkan Singh resident of village Rasoolpur Pachrasi came to his house and made a complaint to his brother Hari Shanker Singh Pradhan and told him that Ram Murat Pandey of his village is taking out the mud from his pond by making an encroachment in his land and when he objected to it, he abused him and also had beaten. Hence he requested the deceased to come to his village and settle the matter on which his brother assured to Chakkan Singh that he would definitely come to his village and would settle everything. Thereafter his brother Hari Shankar Singh Pradhan, Harihar Chauhan and Rajdeo Singh of his village proceeded to village Rasoolpur Pachrasi. His brother and Harihar Singh Chauhan went on motorcycle whereas informant Vijay Bahadur Singh and Rajdeo Singh went on bicycles. On reaching the village Rasoolpur Pachrasi, they left their motorcycle and bicycles near the pond. Ram Nath Yadav, Pradhan of village Rasoolpur Pachrasi told them to come under the tree in the shade and they would be bringing the cot and when they were going there, Ram Nath Yadav and Rama Shankar Pandey brought the gun from their house and challenged them by firing upon them. Ram Murat Pandey of village Rasoolpur Pachrasi, Ramdhani Yadav of village Turna, P.S. Nandganj, Ram Autar resident of village Vishunpura Kala, Dalsingar resident of village Murtujipur, P.S. Saidpur and 5-7 other persons of village came there from their houses with guns and ballam and started firing on them and the unknown persons could be identified by them if they are produced. The informant and Rajdeo Singh returned back and Hari Shanker Singh and Harihar Singh Chauhan jumped into the pond and the accused persons went a step ahead and started firing on his brother Hari Shanker Singh who after being injured had fallen stumbled in the pond and thereafter had fallen down in adjoining northers field and the assailant reached there and fired at Hari Shanker Singh from close range. The informant somehow escaped from there and Harihar also received gunshot injuries. The incident had taken place at 9 a.m. in the morning. The accused Ramdhani Yadav had contested an election against his brother of village Pradhan on account of which there was enmity between them. He prayed that necessary action be taken against the accused persons.

4. On the basis of written report Ext. Ka-1, a Chik FIR was prepared by Chhangur Yadava, P.W.4 Head Moharrir at P.S. Nandganj as Ext.Ka-5 and also a case was registered under Section 147, 148, 149, 307, 302 IPC which was registered in the G.D, copy of which is marked as Ext.Ka-6. Mohd. Shamim Siddiqui, Station Officer of Police Station Nandganj who was present at the said police station when the report was lodged. He took investigation in his hand and proceeded to the place of occurrence along with Vijay Bahadur Singh and constable in a jeep. He reached at the place of occurrence at 11.10 a.m. He found the dead-body of Hari Shanker Singh lying on the spot. He prepared the Panchnama on the body of the deceased which is marked as Ext.Ka-7. He prepared photo nash Ext.Ka-8, challan nash Ext.Ka-9 and two reports Exts.Ka-10 and Ka-11 one for post-mortem and the other for recovering the blood-stained clothes of the deceased. He sealed the dead-body in a piece of cloth and deputed constables Gorakhnath Yadava, P.W.9 and Shri Narain Misir to take the sealed dead-body and the relevant papers to mortuary. The Station Officer further interrogated the witness of inquest report and Vijay Bahadur Singh. He called Harihar Singh Chauhan the injured through a chaukidar and when the injured reached the spot, Station Officer interrogated him. Blood marks were there on the clothes of the injured. Station Officer recovered the blood stained clothes of the injured. On inspection, Station Officer found blood fallen at two places. In the belt of the pond, blood was found. He recovered blood-stained and plain earth and sealed in two tins (material Exts.VII and VIII). He recovered blood-stained and plain earth where the dead-body was lying and sealed in two tins (material Exts.IX and X). About the recoveries of blood-stained clothes of the injured and the blood-stained and plain earth, Station Officer prepared fard which is on the record as Ext.Ka-12. He sent Harihar Singh Chauhan for medical examination. He further interrogated Rajdeo Singh, Chakkan Singh and many others. Site-plan was prepared of the place of occurrence as Ext.Ka-13. He recovered five empty cartridges which is marked as material Ext.XI and wads as material Ext.XII on the spot. He found motorcycle and two bicycles standing on the north of the pond at the chak road. He returned the motorcycle and one bicycle to Vijay Bahadur Singh and the other bicycle to Rajdeo Singh after getting fard supurdaginama as Ext.Ka-14 executed by them. The Station Officer further made search of accused Ram Murat and recovered double barrel gun (material Ext.XIII), licence of the gun (material Ext.XV) and the belt with live cartridges (material Ext.XV) from his house. He prepared recovery fard recovery memo as Ext.Ka-16.

5. The accused Ram Nath Yadav, Ram Murat and Ram Shanker surrendered in the court on 13.7.1982. On 26.7.1982, the Station Officer with the permission of the court interrogated accused Ram Nath, Ram Dhani, Ram Murat and Ram Shanker in the District Jail Ghazipur. Co-accused Dalsingar and Ram Autar were lodged in Azamgarh jail. He took steps for transfer of these two accused to Ghazipur. He sent articles for Forensic Science Lab, Lucknow and Agra for examination. After completing the formalities of investigation, he submitted charge sheet against all the accused on 16.7.1982.

6. The case was committed to the Court of Sessions and the trial court framed charges against the accused for the offences in question, who denied the charges and claimed to be tried.

7. The prosecution in support of it's case examined as many as twelve witnesses i.e. Vijay Bahadur Singh, P.W.1, Harihar Singh Chauhan, P.W.5 as eye-witnesses of the occurrence. Dr. S.I. Imam, P.W.2, Head constable Sadhu Singh, P.W.3, Head Moharrir Chhangur Yadav, P.W.4, Constable Janardan Singh, P.W.6, S.O Mohd. Shamim, P.W.7, Mahendra Kumar Singh, P.W.8, Constable Gorakhnath Yadav, P.W.9, Mohd. Hashim Khan, P.W.10, Suryanath Misra, P.W.11 and Dr. O.N. Rai P.W.12.

8. The accused in their statement u/s 313 Cr.P.C the charges levelled against them, have admitted the occurrence and set-up a counter version according to which it was stated by them that on account of dispute with Chakkan Singh, the deceased and the injured had come to the house of Ram Murat and Ramashanker to take revenge. Harihar Singh Chauhan is said to have fired shot at Ramashankar causing him gunshot injuries. Ramashankar retreated and hide in his house but when the deceased and the injured insisted Ramashanker to get out otherwise threatened to get open the door. Ramashanker came armed with gun and fired at them in right of private defence. In the meanwhile villagers are said have come armed and to have chased and hit the deceased and the injured.

9. The two witnesses of fact i.e. P.W.1 who is the informant of the case and the real brother of the deceased and P.W.5 Harihar Singh Chauhan, the injured witness appeared before the trial court and in their evidence before the trial court have supported the prosecution case as has been set-out in the FIR and as the accused-appellants have admitted the occurrence, it's time and place which are not in dispute, hence the testimony of the said two eye-witnesses as has been stated before the trial court is not reiterated for the sake of brevity. Both the sides have stated that on 11.7.1982 at about 9 a.m., there was a marpeet resulting in the death of Hari Shanker Singh and injuries to Harihar Singh Chauhan in village Rasoolpur Pachrasi. Both the sides, however, have their own version about the marpeet. According to the prosecution, Hari Shanker Singh deceased, Harihar Singh Chauhan injured, Vijay Bahadur Singh and Rajdeo Singh had gone to village Rasoolpur Pachrasi to amicably settle the dispute about some pokhari between Chakkan Singh on the one hand and Ramashanker Pandey and Ram Murat Pandey on the other. On account of election enmity, the accused and their associates are said to have made an attack on the deceased and the injured with guns whereas defence version is that the deceased and the injured had gone to village Rasoolpur Pachrasi to take revenge of the dispute between Chakkan Singh on one hand and Ramashanker and Ram Murat Pandey on the other. It was stated by the defence that Harihar Singh Chauhan had fired at Ramashanker causing injuries to him. Ramashanker is said to have entered his house for safety but when the deceased and the injured threatened to break open the door, he came with gun and started firing on them in right of private defence. The villagers are said to have come to the help of Ramashanker and to have attacked the deceased and the injured.

10. The doctor Om Narayan Rai P.W.12 examined the injuries of injured Harihar Singh Chauhan on 11.7.1982 at 2.30 p.m. Ext.Ka-26 and found following injuries on his person:-

I. Multiple fire-arm wounds on antero lateral and lateral aspect of right upper and forearm from the shoulder to wrist joint. Depth measuring from skin deep to 1.4 cm. All the depths were directed medially.

II. Firearm wound on front of right side chest 5 cm. below the centre of right nipple.

III. Firearm wound on front of right side chest 5.5 cm. below and medially to the injury no.2.

IV. Firearm wound on front of right side chest 12 cms below the injury no.2.

V. Firearm wound on antero lateral aspect of right thigh 18 cms above the right knee joint, skin deep.

11. All the wounds are of 0.3 cm x 0.3 cm size. All the wound margins are lacerated and inverted. There was bleeding from some of the wounds and some wounds were filled with blood clot (red). All the wounds were caused by firearm and were within about six hours duration. Probing in injuries nos.2, 3 and 4 not done because that may lead to some other serious injury. Injury no.5 was simple. Rest all the injuries are kept under observation and patient was referred to District Hospital Ghazipur for x-ray A.P. and lateral view of whole of the right arm from shoulder to wrist joint and x-ray A.P. and lateral view of lower half of the chest and upper half of abdomen (The X-Ray should cover injuries nos.2, 3 and 4) and for necessary treatment.

12. The doctor S.I. Imam, P.W.2 conducted post-mortem on the dead-body of the deceased Hari Shanker Singh on 12.7.1982 at 1 p.m. which is marked as Ext.Ka-2 and found following injuries on the person of the deceased:-

I. Gun shot wound 2 cm. x 2 cm. x base of the skull deep, margins inverted, blackening and tattooing present on the neck 4 cm. above the supra sternal notch underlying vertebrae, trachea, vessels and base of the skull posterior part fractured. One wadding and a big size bullet recovered for sample.

II. Gun shot wound margin inverted. No blackening and tattooing seen 1 cm. x 1 cm. x muscle deep on the right side anterior axillary fold.

III. Multiple gun shot wound in an area of 25 cm. x 15 cm. on the right side chest anterio laterally, margin inverted. No blackening and tattooing seen. Each gun shot wound is 1/10" x 1/10" in diameter underlying lung damaged, plueral fluid contained about one litre blood. Heart ruptured. Few small pellets were recovered from the chest cavity.

IV. Gun shot wound margin inverted, blackening and tattooing seen, 10 cm. x 7 cm on the right inguinal region. One piece of wadding and pellets recovered from the abdominal cavity. Abdominal cavity deep.

V. Gun shot wound blackening and tattooing seen, margins inverted 10 cm. x 10 cm. in the peritoneum x bone deep, one wadding and pellets recovered from the wound.

VI. Gun shot wound multiple cm. x cm. x muscle deep in an area of 10 cm. x 5 cm. on the left side thigh anteriorly. No blackening and tattooing seen. Margins inverted.

VII. Gun shot wound, margins inverted, no blackening and tattooing seen on the left shoulder cm. x cm. x muscle deep.

VIII. Incised wound 2 cm. x cm on the left side head x bone deep 4 cm. above the left ear.

13. In the opinion of the doctor, the deceased died due to shock and hemorrhage on account of ante-mortem injuries.

14. The accused-appellant Ramashanker Pandey is said to have suffered injuries and he surrendered and was lodged in jail in 13.7.1982. His injuries are said to have been examined on 15.7.1982 by Dr. Surjeet Singh, D.W.1 who was the Medical Officer in the District Jail, Ghazipur. Ext.Kha-1 is the copy of injury report which shows following injuries on the person of the accused Ramashanker:-

1. Small round wound with scab 2 mm in diameter left thigh dorsally in the upper part.

2. Small round wound with scab 2 mm in diameter left thigh laterally in the upper part.

15. In the opinion of the doctor D.W.1 Surjeet Singh, both the injuries were simple about four days old and stated to have been caused by gun. On the advice of the doctor, two injuries of the accused were x-rayed on 7.8.1982. Ext.Kha-2 is report of the Radiologist and it shows that two radio-opaque shadows were seen and D.W.2 Lalji Prasad who was produced before the trial court who was X-Ray Technician was produced by the prosecution from the side of the defence to prove the x-ray report and proved the same as Ext.Kha-2 which was prepared by Dr. C.P. Srivastava who was radiologist in the District Hospital and said witness was acquainted with his writing and signatures and proved X-Ray report as Ext.Kha-2 of Ramashanker Pandey.

16. The other prosecution witness produced by the prosecution who are formal in nature i.e. police witnesses who have proved Chik FIR, G.D, Inquest Report, other police documents and the Investigating Officer who submitted charge-sheet against the accused persons and the appellants. Their testimony have also not been assailed by the counsel for the accused-appellants, hence the same is not reiterated by the Court.

17. The learned trial court after examining the prosecution evidence and the defence set-up by the accused-appellants found that it was the accused who were responsible for the death of the deceased and caused injuries to the injured Harihar Singh Chauhan and convicted and sentenced the appellants for the charged offence. Aggrieved by the same, the appellants have preferred the instant appeal against the judgement and order of the trial court.

18. Heard Sri Brijesh Sahai, learned counsel for the appellants and Sri Jai Narain, learned AGA for the State and perused the record.

19. The sole ground argued by the learned counsel for the appellants is that it was the prosecution side who was the aggressor and Harihar Singh Chauhan had fired shot at the appellant Ramashanker Pandey with gun who received injuries on his thigh and the said accused appellant apprehending danger to his life retaliated in firing at the deceased Hari Shanker Singh who died and caused injuries to the injured Harihar Singh Chauhan by gun. Further the villagers had come in the rescue of Ramashanker and Ram Murat Pandey. He further submitted that the injuries sustained by the accused-appellant Ramashanker Pandey on his person was examined by D.W.1 Dr. Surjeet Singh in jail on 15.7.1982 and moreover X-Ray was also conducted of the injuries of the accused and radio opaque shadow was found. He argued that the trial court rejected the defence version only on the ground that the injury of accused-appellant Ramashanker was examined after three days of the incident and X-Ray was performed after twenty two days of the incident which cast doubt about the injuries sustained by the said injured. The prosecution has failed to prove that the injuries received by the accused-appellant Ramashanker was manufactured by him. The trial court has observed that even if the accused-appellant had right of self defence but as the deceased and the injured were returning back after being challenged by the accused, then the plea of right of self defence as has been pleaded by the accused ceased and they had exceeded their right of self defence and convicted the accused-appellants for the offence under Section 302 IPC and other offences. He vehemently argued that the deceased had received gunshot injuries on his front side of the body which shows that he was not retaliating or running back, hence trial court committed error in observing that the deceased and the injured were returning back, hence it did not accrue to the accused any further right of self defence. Thus he submitted that the impugned judgement and order passed by the trial court in convicting the appellant by disbelieving the defence version and believing the prosecution case is liable to be set-aside.

20. Learned AGA on the other hand has vehemently opposed the argument of learned counsel for the appellants and submitted that as the appellants have admitted the date, time and place of occurrence and have also not challenged the testimony of P.W.1 Vijay Bahadur Singh and P.W.5 Harihar Singh Chauhan, the injured witness and have taken the plea of self defence in which they shot dead the deceased and caused injuries to the injured goes to show that they have admitted the incident. So far as the plea of self defence as has been taken by the accused-appellants that the deceased and the injured had come to take revenge from the accused persons because of Pradhani election and the injured Harihar Singh Chauhan fired at accused-appellant Ramashanker with gun who received injuries who thereafter ran away in his house to hide and thereafter the deceased and the injured went to his house and broke open and in retaliation accused Ramashanker shot dead the deceased and caused injuries to the injured with his licensee gun, the trial court has rightly rejected the defence version as it found to be not true whereas the prosecution case which was found proved beyond reasonable doubt against the accused-appellants and has rightly convicted and sentenced the accused appellants.

21. We have gone through the record as well as the impugned order passed by the trial court in the light of the submissions advanced by learned counsel for the parties.

22. It is admitted to the parties that the incident has taken place in village Rasoolpur Pachrasi where the accused persons were living. The prosecution case as has been set-out in the FIR that one Chakkan Singh had gone to make a complaint to Hari Shanker Singh (deceased) at his house about the mud being taken from the pond by Ram Murat Pandey forcibly and when he protested it, there was quarrel between the two on which Hari Shanker Singh, Pradhan had told him that he would go next morning to village Rasoolpur Pachrasi to settle the dispute with Ram Murat Pandey. Accordingly P.W.1 Vijay Bahadur along with his brother Hari Shanker Singh Pradhan, Harihar Singh Chauhan and Rajdeo Singh all the four went to village Rasoolpur Pachrasi on motorcycle and two bicycles and when they reached there, the accused Ram Nath Yadav and Ramashanker Pandey asked them to sit on a cot under a Baniyan tree but after being seated, the accused went to their houses and came with a gun and fired shot at the deceased and the injured who had fallen in the pond while trying to save their lives but when the deceased had fallen, the accused chased them and fired at him and at that moment, the other accused persons along with 5-7 unknown persons came out of the houses with guns and spear and attacked the deceased and injured. The informant Vijay Bahadur P.W.1 and Rajdeo Singh ran away from the place of occurrence to save their lives. The deceased was done to death by the accused persons whereas the injured received injuries. The P.W.1 Immediately took a bus and rushed to the police station to lodge an FIR and submitted written report Ext.Ka-1 against the accused persons and the FIR was lodged promptly at 10.05 a.m. at the police station which was at the distance of five miles from the place of occurrence. The police also reached the spot at 11 a.m and thereafter the inquest proceedings were conducted on the dead-body of the deceased by the Investigating Officer P.W.7. The dead-body of the deceased was sent for post-mortem examination after completing the other formalities by P.W.7.

23. The injuries of the injured was examined on the same day who was also sent for medical examination by the P.W.7 as the accused-appellants have admitted the incident and have pleaded that the deceased and the injured were shot by the accused-appellant Ramashanker and others in right of self defence, hence the Court proceeds to examine whether it was the prosecution side who had attacked the accused persons or was it the accused persons who had murdered the deceased and caused injuries to the injured.

24. It is apparent from the prosecution case that on 11.7.1982 at 9 a.m., the deceased Hari Shanker Singh (Pradhan) and the injured along with P.W.1 Vijay Bahadur and one Rajdeo had gone to village Rasoolpur Pachrasi to settle the dispute with the accused Ram Nath Yadav. The deceased Hari Shanker Singh and injured Harihar Singh Chauhan went on a motorcycle whereas informant Vijay Bahadur Singh and Rajdeo Singh went on bicycles. On reaching the village Rasoolpur Pachrasi, they left their motorcycle and bicycles near the pond. Seeing the deceased and others, Ram Nath Yadav, Pradhan of village Rasoolpur Pachrasi told them to come at his door under the Baniyan tree so the deceased, injured, Vijay Bahadur Singh and Rajdeo Singh all proceeded along with Western mend of the pond to the door of Ram Nath where he was sitting on a cot and Ramashanker was standing nearby. Both the accused went to their houses to bring cots for the deceased and others to sit on. But the two accused instead coming with a cot came armed with guns. By that time the deceased and others were 8-10 steps away from the Banyan tree on the Western mend of the pond. Ram Nath Yadav and Ramashanker lost no time and fired at the deceased and the three accompanying him. As the deceased and the injured were close by, the gun fire hit them. They jumped in the pond on the East. Vijay Bahadur Singh and Rajdeo Singh who were a little behind, took a turn and ran away to save their lives. Other four accused accompanied by six more, who too were armed with guns and spear, came out from the houses of Ram Nath and Ramashanker. Thus all the accused and their companions chased the deceased and the injured. At first the deceased and the injured ran towards the East, but there being water in the pond, they took a turn towards the North. Assailants were firing at both the deceased and the injured. Harihar Singh Chauhan managed to run away even though he had gun shot injuries. Hari Shanker Singh negotiated the pond, crossed the Chak Road but fell down in the adjoining Northern field. Assailants reached there and fired at Hari Shanker Singh from a close range and attacked him with spear also as a result of his injuries caused, Hari Shanker Singh died on the spot.

25. The trial court examined the prosecution case in order to ascertain whether it was aggressor or not and after going through the entire evidence, it came to the conclusion that the deceased and the injured along with P.W.1 Vijay Bahadur and one Rajdeo Singh had gone for amicable settlement with the accused persons at village Rasoolpur Pachrasi. They were empty handed and had gone unarmed. Further no recovery of any weapon was made from the place of occurrence or from their possession. Thus the finding in that regard by the trial court appears to be correct which has come to the conclusion that the deceased had gone unarmed which suggests that as a matter of fact had gone to amicably settle the dispute between Chakkan Singh on one hand and Ramashanker and Ram Murat on the other hand. The plea of self defence which was taken by the accused-appellants including Ramashanker and others that they in right of self defence have killed the deceased and caused injuries to the injured was also examined by the trial court in it's great depth and it has come to the conclusion that the defence version was not found to be correct firstly on the ground that the injuries caused to the prosecution side resulted in the death of Hari Shanker Singh who received as many as eight injuries on his person out of which seven were gun-shot injuries and one was incised wound and the gun-shot injuries were received by the injured Harishankar Singh Chauhan on his person which were also five in number on various parts of the body including vital part of the chest etc. whereas the injuries sustained by the accused-appellant Ramashanker was concerned, he received two injuries on his person. First was small round wound with scab 2 mm in diameter left thigh dorsally in the upper part and second was small round wound with scab 2 mm in diameter left thigh laterally in the upper part, which in the opinion of the doctor Surjeet Singh D.W.1 who has examined the injured on 15.7.1982, were found to be simple in nature and four days old and suspected to have been caused by gun and for the said two injuries were also advised X-Ray which was performed by the radiologist and two radio opaque shadow were seen and the said X-Ray was done after twenty two days of the injuries received by Ramashankar Pandey. The trial court found that the injuries which were sustained by the said accused were three days old and X-Ray was twenty two days old which goes to show that the same was simple in nature and could be self manufactured. One more circumstance about the genuineness of the injury sustained by Ramashanker, which was examined by the trial court

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was that the incident had taken place on 11.7.1982 and during the said period, he did not get his injuries examined which goes to show that the injuries which were received by the injured could not be said to have been caused in the present incident and could be a manufactured one. Moreover, no cross report of the incident was lodged from the side of the accused persons which further goes to show that the defence which has been taken by them is not a true one as the accused Ramashanker Pandey had surrendered before the court on 13.7.1982. No explanation has come forward as to why Ram Shanker Pandey was not examined either on 13.7.1982 or 14.7.1982 also was doubted by the trial court regarding genuineness of the injuries. 26. Thus the defence version which has been given by the accused was rightly rejected by the trial court who believed the prosecution case to be proved beyond reasonable doubt against the accused persons. So far as argument of learned counsel for the appellants is concerned that even if the case of the prosecution is taken on it's own face value, the accused have exceeded the right of private defence as has also been observed by the trial court as when the deceased and the injured were shot by fire-arm weapon, they retaliated and tried to run away but the accused firstly fired on them and their right to self defence ceased and then too it cannot be a case for conviction and sentence under Section 302 IPC for life imprisonment as the case would not travel beyond Section 304 Part-1 IPC, the said argument of learned counsel for the appellants also has no substance as the deceased and the injured were unarmed when they had gone for an amicable settlement of the dispute and the accused who attacked on them with deadly weapon i.e. gun and spear and deceased received injuries of gun and spear and injured received injuries of gun which goes to show that they had all intention to kill the deceased and the injured. 27. In view of the foregoing discussions, the participation of the accused-appellants is well established by the prosecution evidence and the trial court has rightly convicted the appellants for the offences, which they have been charged with and there appears to be no infirmity or illegality in it's judgment, hence the conviction and sentence of the appellants by the trial court is hereby upheld. 28. The appellants Ramashanker Pandey and Ram Murat Pandey are on bail. They shall be taken into custody forthwith to serve out the sentence awarded by the trial court. Their bail bonds and sureties are cancelled. 29. The appellant Ram Autar is stated to be in jail. He shall serve out the sentence awarded by the trial court. 30. The aforesaid two appeals lack merit and are, accordingly, dismissed with regard to appellants Ramashanker Pandey, Ram Murat Pandey and Ram Autar. 31. The copy of this judgement along with the lower court record be transmitted to the trial court concerned immediately for compliance at once.
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