Jai Mal Singh and Others vs State

S.I. Jafri, J.—Jaimal Singh, Dhoom Singh, Tej Pal Singh, Antu, Krishna, Karta, Om Pal, Manga, Mahi Pal Soran, Dila, Mangta, Sukhpal, Naqli, Bhoora, Raja, Om Prakash, Mukanda, Yunus, Zahid, Behu, Durga, Sukbbir, Manga and Illam Singh, have preferred this appeal against their conviction and sentences recorded by Sri. A.L. Srivastava, II Additional District and Sessions Judge, Saharanpur by his judgment and order dated 30-5-77. Jaimal Singh, Dhoom Singh, Yunus, Zahid and Illam Singh were convicted u/s 307/149 and 148 IPC and they were sentenced to undergo RI for seven years and two years respectively. Saran, Dilla, Om Prakash and Mukanda were convicted u/s 307/149 and 148 IPC and they were sentenced to undergo 5 years RI and two years RI respectively. Tej Pal Singh, Antu, Krishna, Karta, Om Pal, Manga, Mahipal, Mangta, Sukhpal, Naqli, Bhoora, Raja, Behu, Durga, Sukhvir and Manga were convicted u/s 307/149 and 147 IPC and they were sentenced to undergo four years RI and one year RI respectively. Antu was convicted u/s 307/149 and 147 IPC and he was sentenced to 3 years RI and one year''s RI respectively.

Antu died during the pendency of his appeal and as such, his appeal abates.

Out of the Appellants mentioned above, Jaimal Singh, Dhoom Singh, Yunus, Zahid and Illam Singh were alleged to have been armed with fire-arms. Soran, Dilla, Om Prakash and Mukanda Appellants were armed with spears and the rest of the Appellants were armed with lathis.

Jaimal Singh, Dhoom Singh, Tej Pal, Antu, Krishna, Karta, Om Pal Manga, Mahi Pal, Soran, Dilla Mangta, Sukhpal Naqli, Bhoora, Raja, Om Prakash and Mukanda belongs to village Olara where the occurrence is said to have come about. This village namely Olara situates at a distance of about 1 1/2 miles from the police out post Nanauta, Police Station Badgaon, District Sabaranpur. Illam Singh belongs to village Rampur which lies at a distance of about six miles from village Olara. Manga Appellant is a resident of village Hangawali which lies at a distance of about three miles apart from village Olara. Yunus and Zahid hail from villages Abha and Balupura respectively. Both these villages situate at a distance of about two miles from village Olara. Behu belongs to village Nariyala which situates about 10 miles away from the village Olara whereas Sukbbir and Durga belongs to village Saliyar which is at a distance of 8 miles from the village Olara.

It is alleged by the prosecution that there existed animosity between the Harijan residents of village Olara on one hand and Non-Harijans of the same village, particularly Gujars on the other hand from before the present occurrence over some agricultural land and a litigation in that regard was going on at the time of occurrence. This village is predominantly inhabitated by Gujars, who are alleged to be quite influential and well to do persons. It is also alleged that a case of dacoity was pending in the Court of Judicial Magistrate, Saharanpur at the time of occurrence on the complaint filed by Dhoom Singh Appellant against some of the Harijans of the village including Sub-Inspector Jai Pal Singh PW 23, who is the investigating officer of the instant case.

In village Olara, the Harijan Basti is situated on northern and western side and a road (Rasta) from outside the village, leads to the Basti facing east-west. This road had a number of pits which caused great inconvenience to the people at large while passing through it.

The case of the prosecution, in brief, is that on the day of occurrence i. e. on 26-10-73 at about 9 a.m., Raghubir, Mahendra, Baljit, Suddan and Kurdi, all Harijans, were repairing the aforesaid road by putting earth in the pits by taking it from either sides of the road from fields of Dhoom Singh and Karta Appellants. In the mean-while, Jai Mai Singh Appellant, uncle of Dhoom Singh Gujar, arrived there, resented at their digging of earth from field and asked them to refrain from digging the earth from his field whereupon Raghuvir and other Harijans on the spot replied that they were repairing the road for the convenience and benefit of the entire village and it would not cause any damage to their plots. Thereaftre, Jai Mal Singh became enraged and returned towards his house uttering threats for teaching a lesson to the Harijans soon The Harijans continued to repair the road. Shortly thereafter, Jaimal Singh and all other Appellants armed with their respective weapons as stated above, came at the place where the Harijans were engaged in repairs of the road and they started firing at them which resulted in injuries to Mahendra, Baljeet, Sugan and Raghuvir. On sustaining the injuries, the aforesaid persons ran towards the Harijan Basti in order to save their lives but the Appellants gave them a hot chase and after entering the Harijan Basti, they resorted to indiscriminate firing at innocent Harijans. They also did not even spare Ladies and minor children some of whom were sitting inside their houses and some outside their houses at that moment and in this way a reign of terror was unleashed by the Appellants. In all, 24 persons sustained gun-shot injuries which included minor children and Ladies as well. After inflicting fire-arm injuries to the Harijans in the aforesaid Basti, the Appellants walked away from the place of occurrrence.

After the occurrence, Pirthi Singh PW 11 wrote down a report of the occurrence on the dictation of Raghubir Singh and thereafter, Raghubir Singh went to the Police Out-post Nanauta which is a Reporting out-post and handed over his written report to Ratan Lai Verma, Head Constable who prepared the chik report at 10 A.M. and registered a case under Sections 147/148/307/149/452 IPC against the Appellants. Police out-post Nanauta is situated at a distance of about one and half miles from village Olara.

The injuries on the persons of injured Baljeet, Deshraj, Suggan, Mahendra, Dharma, Keshav Ram, Birham, Km. Kamlesh, Har Chand, Mir Singh, Sumera, Nathi, Rishi Pal, Jag Mal, Raj Pal, Nag Raj, Rama, Ghaseeta, Raghubir Singh, Kalla Devi, Sultani, Manohar and Jeoti were examined by Dr. S.K. Mishra PW 2 at the Primary Health Centre Nanauta. All of them had sustained gunshot injuries. The injuries on the person of Smt. Ghisso were examined by Dr. M.V. Goyal in the District Hospital Saharanpur. The doctor had also found gunshot injuries on her person. Their injury reports are marked as Ex Ka-1 to Ka-23.

Out of the Appellants, Jai Mai Singh, Karta, Anta (since dead), Om Pal. Dilla, Mahi Pal, Behu and Sukhpal were] examined by Dr. G.S. Gupta DW 3 on 29-10-1973 and following injuries were found on their person.

Appellant Jaimal Singh sustained one faint contusion in the lower part of left leg. Appellant Karta sustained three contusions and two scabbed wounds.

Appellant Antu sustained two faint contusions and one scabbed wound 1 cm x 0.5 cm on the outer side of the knee joint.

Appellant Om Pal sustained three faint contusions on the back of upper part of right thigh, on the left buttock and on the outer side of upper part of left thigh.

Appellant Dilla sustained one abraded contusion on the outer side upper part of left thigh, one faint contusion on the left supra scapular region and traumatic swelling over right ankle on the outer and dorsal aspect.

Appellant Mahi Pal sustained one scabbed contusion on the right side of the head 4 cm above the outer end of the right eye brow, one faint contusion on the outer side upper part of the left thigh and swelling on the left elbow joint but no mark of injury.

Appellant Behu sustained two scabbed contusions on the front and lower part of the left leg and on the upper part outer side of the left leg.

Appellant Sukhpal sustained one contusion on the outer side upper part of the right thigh, swelling on the outer side of the left ankle and he also complained of pain in both sides of chest.

Jai Pal Singh, Sub-Inspector was present at the Police outpost Nanauta at the time of registration of the case. He took up the investigation of the case in his hands and recorded the statements of the witnesses. He also went to the place of occurrence and after inspecting the place of occurrence, prepared site-plan Ex Ka 38. He found blood in the field of Karta and Collected the same, prepared the requisite mrmos. He also visited the Harijan Basti where he found two empty cartridges on way to Harijan Basti from the place of occurrence on the road and took the same in his possession. He prepared the requisite recovery memos and sealed the recovered empty cartridges. In the Harijan Basti, he also found empty cartridges at several places and took them in possession. He has also found blood stains in number of houses. He also round pellet marks on the doors and wall of the houses of the Harijan Basti and also took the pellets in his possession. The Appellants namely Jai Mai, Karta, Antu, Om Pal, Dilla, Mahipal, Behu and Illam were arrested after 2 P.M. in village Olara by the police constables Rajeshwar Prasad PW 14, Jai Pal PW 15, Jagdish PW 16, Rohtash Singh PW 17 and Malkhan Singh PW 25 after giving them beating. These Appellants were sent to the police outpost Nanauta by the Sub-Inspector through the remaining Appellants surrendered in the Court subsequently. During the course of investigation, Sub-Inspector Jai Pal Singh PW 3 took into his possession the licensed gun No. 2889-70 belonging to Jai Mal Singh. He also took into his possession the licensed gun No. 3449/422 of Yunus Appellant. At the time of arrest of Ham Singh Appellant, a country made pistol was recovered from his possession. All the aforesaid three fire-arms were sent to Ballastic Expert for comparision with the above mentioned empty cartridges found by Sub-Inspector Jai Pal Singh during investigation. The Ballastic Expert marked the empty cartridges as EC 6, EC 7, EC 8, EC 11, EC 12 and EC 13 and on comparision and test with the aforementioned fire-arms, it was found by him that empty cartridge marked EC 6 was fired from the gun bearing No. 3449/422 of Yunus Appellant whereas the empty cartridges marked EC 8, EC 12, EC 13 were found to have been fired by gun bearing No. 2889-70 belonging to Jai Mal Singh Appellant. The empty cartridge marked EC 11 was found to have been fired from the country made pistol marked 3/74 alleged to have been recovered from Ham Singh Appellant. The report of the Ballastic Expert is Ex Ka 55 dated 29-7-1974. Initially, the investigation was conducted by Jai Pal Singh PW 23 but subsequently, it was finalised by Sri. Mahendra Singh PW 24 who submitted charge-sheet Ex Ka 54 against all the Appellants.

The accused pleaded not guilty to the charge and stated that they were falsely implicated in the case due to enmity. The Appellants also examined five witnesses in their defence and they are Hukam Singh, DW 1, Ijtikbar Ali Khan DW 2, Ishwar Dayal DW 3, Subhan Ahmad DW 4 and Dr. Q.S. Gupta DW 5. The defence case is that the Harijans of village Olara were cutting the crop of their fields and when they were confronted by the accused, they assaulted the accused and caused injuries to them. The defence case further is that a large number of persons had assembled there and they could not see in the melee as to who had fired causing injuries to the complainant''s side. They have also stated that Dhoom Singh Appellant had filed a complaint u/s 395 IPC against Sub-Inspector Jai Pal Singh who had falsely implicated them in the case.

The learned Sessions Judge after considering the evidence adduced in the case in its entirety came to the conclusion that the prosecution had fully succeeded in bringing home the Jguilt of the accused and accordingly, he convicted and sentenced all the Appellants as mentioned above.

The prosecution examined in all 25 witnesses in support of its case and out of them, Baljeet PW 1, Kesho Ram PW 6, Mahendra PW 7, Meer Singh PW 8, Jeoti PW 9, Megh Raj PW 10, Baljeet son of Chirwa PW 12, Molar PW 13 and Pirthi PW 11 were examined as eyes witnesses of the occurrence.

Baljeet Singh PW 1 is an injured witness. He sustained as many as 13 gun-shot injuries on his person. He deposed that Harijan Basti in his village situates towards the north and west of the Abadi of village Olara and the Harijans of his village reside mainly in the aforesaid Basti. He further stated that adjaccent to the Harijan Basti, there is a place known as "Pitra Sthan" where the Harijans do worshipping. Narrating the incident, the witness further deposed that the road leading to Harijan Basti was in bad condition and Harijans had decided to repair the same by covering the pits of the road by taking the earth from the adjacent fields. The Harijans, namely, he, Raghubir, Mahendra, Suggan and Kurdi began to do the repairs on the road at about 9 A.M. on the day of the occurrence. Appellant Jaimal Singh arrived there and asked them to refrain from taking the earth from the fields whereupon they replied that the road was in bad condition and they were doing ''Shramdan'' (Voluntary labour) for covering the pits by putting earth for the welfare and benefaction of the entire village. Jai Mal Singh Appellant threatented to see them soon and returned back to the village and he, Raghubir, Mahendra, Suggan and Kurdi resumed the work of repairing the road.

After a short-while, all the Appellants including Jaimal, Yunus, Zahid, Illam Singh, Dhoom Singh who were armed with fire-arms, Dilla, Soran, Mukanda, Om Pal who were armed with spears and rest of the Appellants armed with lathis, came at the place of occurrence and inflicted injuries on them by firearms, and all of them except Kardi had sustained gun-shot injuries. He alongwith Raghubir and others in order to save their lives, ran towards Harijan Basti, but they were chased and on reaching Harijan Basti, the Appellants resorted to indiscriminate firing all around on Harijans which included ladies and minor children and in this way 24 Harijans in all received nicety one gun-shot injuries on their person and a reign of terror was thus created. The Appellants after inflicting injuries, walked away from the Harijan Basti. He further deposed that a litigation was going on between the Appellant Dhoom Singh on one hand and Dharmpal, Mulhar, Phuggan, Harkesh and Kurdion the other in respect of plot No. 331 which had been allotted by the former Pradhan Bharat Singh Harijan to the aforesaid Harijans of village Olara. He also admitted in cross-examination that Dhoom Singh Appellant 1 had filed a complaint u/s 395 IPC against Jai Pal Singh Sub-Inspector and some other Harijans including some of the close relations of the Appellants. It has also come in his admission that Yunus Appellant belongs to village Abha and Zahid Appellant is a resident of village Babupura and both these villages situate at a distance of two miles from Olara village. It was also stated by him that Behu Appellant hails from village Narivala which lies at a distance of 10 or 11 miles from village Olara. Durga and Sukhvir Appellants are residents of village Sariyala which lies at a distance of about 8 or 9 miles from the village Olara while Illam Singh Appellant resides in village Rainpur which lies at a distance of six miles from his village. He further stated that Manga Appellant is a resident of village Hangawali which lies at a distance of four miles from the village Olara where the occurrence had taken'' place. It has further been admitted by him that on 22-9-1977, Dhoom Sinkh Appellant had filed a complaint against Manga and Naqli for uprooting and damaging his crop.

Baljeet Singh is an injured witness who has sustained as many as 13 gun-shot injuries on his person and, as such, I hold him a natural witness. He has given out an ocular account of the incident. Moreover, nothing material could be spun out by the defence in his cross examination as to render his testimony tainted with doubt except that the participation of the accused belonging to the villages other than Olara, seems to be doubtful and an exaggeration. The witness has admitted in cross-examination that Manohar had gone to police station and on the basis of his information the police had met him at the dried basin of riverlet Sukhi while he alongwith others was being taken to the Hospital. He further stated that the police-men were on their way to his village at the time when he alongwith others was being taken to the Hospital. This has been denied by Ratan Lal Verma PW 4 Head Constable of police outpost Nanauta emphatically. Baljeet Singh was very seriously injured at the time when he was being taken to the Hospital and he had not gone to police station with Manohar. Under the circumstance, the defence cannot gain any substantial advantage out of the aforesaid admission of the witness.

The statement of Baljeet PW 1 has received ample corroboration by the evidence of Keshav Ram PW 6, Mahendra PW 7, Jeoti PW 8, Mir Singh PW 9, Megh Raj PW 10, Baljeet son of Chirwa PW 12 and Molar PW 13. Out of these eye-witnesses, Keshav, Molar, Mahendra, Jeoti and Baljeet PW 1 are also the injured witnesses. They have all received gun-shot injuries which also find corroboration by the medical evidence produced in this case. Besides, these witnesses are all residents of the Harijan Basti and as such, they are natural witnesses as well. They have substantially established the prosecution case. However, the part of their evidence as regards to the participation of the Appellants belonging to villages other than village Olara in the occurrence seems to be tainted with doubt.

The learned Counsel for the Appellants has rightly submitted that the participation of the Appellants who belong to villages other than Olara, is clouded in grave doubts because according to the prosecution evidence, the occurrence started all of a sudden and without premeditation. It was also submitted that the villages other than Olara to which the Appellants belong are situated at a distance between two miles to 11 miles from village Olara where the occurrence had taken place. Under the circumstances, it is difficult to believe that the Appellants belonging to villages Rampur, Hangawali, Abha, Babupura, Nariyali and Sariyal would reach the village Olara within few minutes to take part in the occurrence which had flared up all of a sudden. There seems to be some element of substance to what these accused persons had stated that they were falsely implicated in the case by the police in league with the complainant. There is no evidence worth the name on record of the case that these Appellants had assembled in the village Olara prior to the occurrence. Moreover, there was no motive for them to have joined hands with the accused of village Olara for committing the offence. The arrest of these Appellants has no doubt been shown after 2 P.M. in village Olara by the evidence of constables Rajeshwar Prasad PW 14, Jai Pal PW 15, Jagdish PW 16, Rohtash PW 17 and Malkhan Singh PW 25 but even if it be assumed that they were arrested in village Olara, after 2.30 P.M. on the day of occurrence, it cannot be taken for granted that they had participated in the occurrence which took place in village Olara on that date at 9 or 9.30 A.M. Whenever any riot takes place in any village, persons of the adjoining villages do go to the village subsequently to enquire about the welfare of their friends, relations and acquaintences.

No doubt, in the FIR lodged by Raghubir injured at the reporting out post Nanauta at 10 A.M. on the day of occurrence, all the 25 Appellants are named as accused but Raghubir First Informant was not examined by the prosecution in support of the prosecution case. Under the circumstances the FIR of the case has not been of any assistance to the prosecution case as a corroborative piece of evidence. No explanation has been furnished by the prosecution for not examining Raghubir injured in the case.

According to the report of Ballastic Expert which is Ex Ka 55, it is opined by the Expert that empty cartridge marked Ex EC 6 found at the place of occurrence by the Investigating Officer had been fired from the licenced gun of Yunus Appellant and empty cartridge marked EC 11 was fired from the country made pistol marked 3/74, alleged to have been recovered from 111am Singh Appellant but the prosecution in this case did not examine the Ballastic Expert to prove his report and it had simply tendered the report of the Ballastic Expert in evidence. It was rightly submitted by the learned Counsel for the Appellants that the report of Ballastic Expert is not signed by the Director or Deputy Director of State Forensic Science Laboratory and therefore, in view of the provisions contained in Section 293 Code of Criminal Procedure , the said report cannot be read in evidence without the examination of Ballastic Expert. It was further submitted by the learned Counsel for the Appellant Ham Singh that Ham Singh was prosecuted separately subsequent to his conviction and sentence in the present case on the charge u/s 25 Arms Act and he was acquitted by the learned Magistrate. A certified copy of the aforesaid judgment was filed before me praying that it be admitted as an additional evidence. I had allowed the prayer and admitted the aforesaid judgment as Additional Evidence in the case u/s 391 Code of Criminal Procedure . An affidavit was also filed on behalf of Ham Singh by his pairokar that no appeal has been preferred by the State against the said judgment and order of the Magistrate acquitting Ham Singh of the charge u/s 25 Arms Act. In the arms case, the alleged recovered country made pistol was said to be the same which was alleged to have been recovered from Ham Singh in the present case on the day of occurrence i.e. on 26-10-1973. The learned Magistrate in the said case has held the arrest of Illam Singh Appellant in village Olara on 26-10-73 as highly doubtful. Therefore, the alleged recovery of the country made pistol from Ham Singh has been rendered doubtful. Under the circumstance, it is also doubtful that Ham Singh, Yunus, Mange Ram, Zahid, Behu, Sukhbir and Durga were arrested in village Olara as alleged by the prosecution.

Now the case against the Appellants who are residents of village Olara remains to be determined. It was submitted by the learned Counsel for the State that the participation of the Appellants of village Olara in the occurrence has been fully established by the evidence of the eye witnesses viz. Baljeet PW 1, Keshav Ram PW 6, Mahendra pW 7, Meer Singh PW 8, Joti PW 9, Megh Raj PW 10, Baljeet PW 12 and Molhar PW 13 and out of them, Baljeet PW 1, Kesho Ram, Mahendra, Mir Singh, Jeoti and Baljeet are injured as well. As held above, the defence could not elicit any substantial material out of the deposition of the above mentioned witnesses which might discredit their evidence. They are the best available natural witnesses and their evidence also inspires confidence.

It was also submitted by the learned Counsel for the Appellants that the accused belonging to village Olara who were said to have been armed with spears and lathis did not inflict any injury on the Harijans and, therefore, their participation in the occurrence is rendered doubtful. The argument is itself devoid of any merit as these accused were members of the unlawful assembly and had shared the common object of the said assembly to cause injury to the Harijans and in prosecution of the said common object of the assembly, co-accused Jaimal Singh and Dhoom Singh armed with fire-arms had caused 91 gun-shot injuries to 24 Harijans of village Olara. Baljeet PW 1, Kesho Ram PW 6, Mahendra PW 7, Mir Singh PW 8, Jeoti PW 9, Megh Raj PW 10, Baljeet son of Churwa PW 10 and Molhar PW 13 have consistently named these persons (accused) in their statements as being members of the unlawful assembly alongwith Jaimal Singh and Dhoom Singh who had caused gunshot injuries to them and other Harijans. Moreover, it is difficult to believe that Jaimal Singh and Dhoom Singh would have descended upon the Harijan Basti and caused gun-shot injuries to 24 persons without the participation of the Appellants belonging to village Olara who were armed with spears and lathis.

The learned Counsel for the Appellants further contended that out of the Appellants Jaimal Singh, Karta, Anta, Om Pal, Dilla, Mahipal, Behu and Sukhpal had sustained injuries and the prosecution witnesses have offered no explanation about their injuries. The argument advanced also carries no merit. The eye-witnesses of the occurrence have emphatically denied to have caused any injury to the accused. Moreover, constables Rajeshwar Prasad PW 14, Jaipal PW 15, Jagdish PW 16 and Rohtash PW 17 and Malkhan Singh have deposed that they could arrest the above-mentioned accused after giving them beating in village Olara after 2 P.M. on the day of the occurrence. Consequently, it is abundantly clear that the Appellants had sustained injuries during the course of their arrest by the afore-mentionjed police constables. The injuries found on the person of the accused on medical examination by Dr. G.S. Gupta DW 3 are minor and simple in nature. The injuries are therefore, the result of beating given to the accused during the course of their arrest by the Police personnels as deposed by them.

The defence case that the accused had received injuries at the hands of Harijans who were forcibly cutting their standing crops in the field of Karta or Dhoom Singh Appellants is also belied by the evidence on record. Jaipal Singh DW 23, during the course of investigation, found several empty cartridges on road leading to Harijan Basti and also inside the said Basti. He has also found blood stains in the houses in the Harijan Basti. The Investigation Officer has also found a number of pellets on the walls of the houses of Harijans in the Harijan Basti including the house of Mir Singh PW 8. It is worthy of consideration here that Nathi aged about 4 years, the son of Mir Singh PW 8 had also sustained gun-shot injuries. This clearly falsifies the defence case that Harijans were forcibly cutting away the crop of the Appellants and shooting had occurred at their field on their protest and not at houses of the Harijans inside the Harijan Basti or on the road leading to Harijan Basti. The accused have also not lodged any report at the Police outpost regarding their version or the occurrence.

The accused have examined Hukam Singh, a resident of village Olara. He is Harijan by caste. He deposed that there was enmity between the accused Dhoom Singh on one hand and Harijans of the village on the other. He stated that in October 1973, there was a quarrel over the harvesting of the crop of Karta Appellant but he could not specify as to which of the persons were cutting the crop of Appellant Karta. He denied the fact that any firing was done in the village. In cross-examination, he admitted that he had heard the noise at the plots and firing had also taken place there and a number of persons had sustained gun-shot injuries on the passage adjoining Dhoom Singh''s plot. He has admitted in cross-examination that accused Dhoom Singh had filed a complaint against him and it, therefore, appears that this witness Hukam Singh had come in the witness box to oblige Dhoom Singh Appellant so that in consideration thereof, he may withdraw the complaint filed against him. His statement that no firing occurred in the village is also belied to the hilt from a number of recoveries made by the Investigating Officer including empty cartridges pellets on the walls in Harijans Basti blood stains in the houses of Harijan Basti and gun-shot injuries sustained by Ladies and children. Hukam Singh in the circumstances, can very well be characterised as a got up witness. His evidence also fails to inspire confidence and the trial Court was fully justified in discarding his testimony. Moreover, it is difficult to believe that the occurrence had taken place in the field of Karta or Dhoom Singh Appellant as claimed by the defence.

The learned Counsel for the Appellants canvassed his argument that the Investigating Officer Jaipal Singh PW 23 had found blood in the field of Karta Appellant which goes to show that the occurrence did take place in the field of Karta Appellant when the complainant''s side was cutting the crop of the accused and on the protest of the accused a marpit had taken place in the said field. This argument by the learned Counsel carries no force in as-much-as the field of Karta lies adjacent to the road where Baljeet PW 1 and others were covering the pits in the road. After being injured on the road, Baljeet and others must have run for safety through the field of Karta towards the Basti, hence the blood must have oozed out from their injuries and fallen in the field of Karta accused. Furthermore, no crop was found standing in the said field owned by Karta Appellant by the investigating officer Jaipal Singh PW 23. On the other hand, he had found sugar-cane crop standing in the adjacent field of Dhoom Singh accused which was also not damaged. The statement of Jaipal Singh has gone unchallenged by the defence in cross-examination.

In the circumstances of the case, there was also ample motive for the Appellants to have committed the offence and I, therefore, hold that the Appellants 1 to 18, all residents of village Olara had participated actively in the occurrence which resulted in causing as many as ninety one gunshot injuries to 24 persona including six injured witnesses examined in this case.

Lastly, it was contended by the learned Counsel for the Appellants that 13 years have since rolled by since the occurrence had taken place. The Appellants have been leading a peaceful family life and keeping in view the long span of time, the bitterness between the accused and the victims must have been mitigated to a greater extent and the wounds of the injured might also have been healed up to some extent and if the injured are compensated in terms of money, their wounds shall completely be healed up. There appears substance in the contention of the learned Counsel for the Appellants that if the Appellants are sent to jail for the incident which had taken place over 13 years ago, their family members shall be put on the verge of starvation and the education of their children is also bound to suffer and cat short.

I also feel that the victims would not gain anything substantial if the Appellants are sent to jail for undergoing the sentences regarding an occurrence which had taken place as far back as 13 years. In the circumstances, I am of the view that substantial justice would be done in the case if the Appellants belonging to village Olara are sentenced to pay fine instead of sending them back to jail to undergo the sentences. Moreover, our judicial system lays great stress on reformatory aspect of the prisoners and I have also taken account of this consideration while awarding the sentence of fine to the Appellants instead of sending them back to jail after 13 years of the occurrence.

I, therefore, consider it proper to affirm the conviction of the Appellants belonging to village Olara u/s 307/149/147 and 148 IPC respectively as recorded by the trial Court. It was also pointed out by the learned Counsel for the Appellants that the Appellants have remained in Jail for period ranging from few days up to about 3 months.

In the result, the appeal is partly allowed. The conviction and sentences imposed on Appellants Ham Singh, Manga Ram son of Khila Ram, Yunus, Zahid, Behu, Sukhvir and Durga are set aside and they are acquitted. They are on bail. They need not surrender. Their bail bonds are discharged. The licensed gun bearing No. 3449/422 belonging to Appellant Yunus shall be returned to him |by the trial Court.

The conviction of the Appellants Jaimal Singh, Dhoom Singh, Tej Pal, Krishna, Karta, Om Pal, Manga son of Tareef, Mahipal, Soran, Dilla, Mangta, Mukanda, Naqli, Bhoora, Raja, Om ''Prakash and Sukhpal is affirmed u/s 307/149 IPC as recorded by the trial Court.

Jaipal Singh, Dhoom Singh Appellants are sentenced to pay a fine of Rs. 2000/- each and the period of imprisonment already undergone by them u/s 307/149 IPC. They are further sentenced to the period of imprisonment already undergone by them u/s 148 IPC. Their conviction u/s 148 IPC is also affirmed as recorded by the trial Court.

Tej Pal, Krishna, Karta, Om Pal, Manga son of Tareef, Mahipal, Soran, Dilla, Mangta, Sukhpal, Naqli, Bhoora, Raja, Om Prakash and Mukanda Appellants are sentenced to pay a fine of Rs. 1,000/- each and the period of Imprisonment already undergone by them u/s 307/149 IPC. Appellants Tej Pal, Krishna, Karta, Om Pal, Manga son of Tareef, Mahipal, Mangta, Sukhpal, Naqli, Bhoora, and Raja are further sentenced to the period of imprisonment already undergone by them u/s 147 IPC. Their conviction u/s 147 IPC is affirmed as recorded by the trial Court.

Appellants Dilla, Mukanda, Soran, Oni Prakash are further sentenced to the period of imprisonment already undergone by them u/s 148 IPC. Their conviction u/s 148 IPC is affirmed as recorded by the trial Court.

It appears from the record that Tej Pal Singh was minor on the day of occurrence being below 16 years of age and under the circumstances Tej Pal Singh being minor cannot be sentenced to Jail Imprisonment, in view of Section 27 of the U.P. Children Act, 1951 (U.P. Act No. 1 of 1952) but the fine imposed on him of Rs. 1000/- shall be realised from his personal assets if any. The Appellants are allowed two months time to deposit the fine in the Court of II Additional Sessions Judge Saharanpur from the date of the receipt of the record from High Court. Out of the fine of Rs. 19,000/- so deposited by them, Rs. 16,000/- shall be given to the victims i.e., Rs. 666.66 shall be disbursed to each of the injured, namely, Baljeet, Deshraj, Suggan, Mahendra, Dharampal, Kesho Ram, Birham, Km. Kamlesh, Harohand, Mir Singh, Sumera, Nathi, Rishipal, Jagmal, Raj Pal. Nag Raj, Rama, Ghaseeta, Raghubir, Kalla Devi, Sullani, Manbhar, Jeoti and Smt. Ghisso u/s 357 Code of Criminal Procedure as compensation by the 2nd Additional District and Sessions Judge, Saharanpur who shall further ensure that the amount of compensation awarded by this Court is disbursed to the injured. In the event of death of any of the injured, the amount of compensation shall go to their heirs. The remaining amount of fine of the disbursement shall go to the State Exchequer.

The learned Counsel for the Appellants, Sri. C.S. Saran, states that the Appellants shall not treat the imposition of fine on them as enhancement of sentence.

In default of payment of fine, Jaimal Singh, Dhoom Singh Appellants shall undergo one year and nine months RI each and Soran, Dilla, Mukanda and Om Prakash Appellants shall undergo 15 months RI each. Appellants Tej Pal Singh, Krishna, Karta, Om Pal, Manga, Mahipal, Mangta, Sukhpal, Naqli and Bhoore shall undergo one years RI each in default of payment of fine.

During the pendency of appeal, Antu Appellant met his natural death and therefore his appeal abates.