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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 513-514 OF 2014

BALESHWAR MAHTO & ANR. .....APPELLANT(S)

VERSUS

STATE OF BIHAR & ANR. .....RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

These appeals are preferred by two appellants, named, Khelawan

Yadav  and  Baleshar  Mahto  (hereinafter  referred  to  as  A-1  and  A-2

respectively).  While A-1 has been convicted for the offence punishable

under Section 302 of the Indian Penal Code (for short, 'IPC') and also

under Section 27 of  Arms Act,  for  which he is sentenced to undergo

Rigorous Imprisonment (RI) for life, A-2 has been found guilty for the

offence punishable under Section 307, IPC and also  Section 27 of the

Arms Act. Sentence awarded to him is RI for 7 years under both counts.

The aforesaid conviction and sentences given by the Sessions Court

have been upheld by the High Court vide its common judgment dated

13th March,  2013  in  the  two  separate  appeals  preferred  by  these

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appellants. It  is this judgment which is impugned by the appellants in

these appeals.  

2. Case  against  the  appellants,  as  set  up  by  the  prosecution  was  that

Anandi  Prasad (PW-7)  along with his  father, Lala  Mahto and brother

Bindeshwar Prasad had gone to their field to sow paddy seeds.  While

they were plowing the field, A-1 armed with rifle, Dulli Mahto armed with

lathi,  Rajendra  Mahto  armed  with  gun,  Arun  Yadav  armed  with  gun,

Umesh Prasad armed with garasa, Subhash Prasad armed with bhala,

Baleshwar Mahto (A-2), Siwan Mahto armed with gun, Ram Bilas Yadav

armed  with  Garasa,  Surendra  Yadav  armed  with   gun,  Ram  Lagan

Prasad armed with  gun  came there.   A-1  questioned Anandi  Prasad

(PW-7) for their aforesaid act as according to A-1 those fields belonged

to him.  PW-7, however, resisted this claiming that these were their fields

which they were plowing. This resistance on the part of PW-7 led Dulli

Mahto  to  exhort  others  to  kill  PW-7  and  his  father  and  brother.

Khelawan opened fire from his rifle and the firing of which hit  on the

head of  Lala Mahto and his  head was smashed and he felled down

there.  Baleshwar also pened fire which hit on the left shoulder of Anandi

and  also  on  his  head.   Rambilahs  hit  him on  his  head  with  'grasa'.

Umesh also hit on the head of Bindeshwar, the brother of Anandi.  Duli

hit them with 'lathi' other accused had also opened fire due to which no

body could dare to come there.  Lala Mahto, father of PW-7 succumbed

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to the injuries inflicted by the aforesaid persons.   

3. PW-7 informed Bind Police Station about the aforesaid incident by giving

his Fardbeyan (Exhibit 9). In his Fardbeyan, PW-7 also mentioned that

Brahmdeo Sao, Kameshwar Prasad and Ramu Sao had witnessed the

aforesaid  occurrence.   FIR  was  registered  on  the  basis  of  the  said

Fardbeyan and investigation commenced thereafter.  On the conclusion

of the investigation, the charge-sheet was submitted under Sections 302

and 307, IPC as well as under Section 27 of the Arms Act for causing

murder of Lala Mahto and attempt to murder for PW-7 and his brother

Bindeshwar Prasad.  All the accused persons were put on trial. The trial

court found A-1 and A-2 guilty of the offences, as mentioned above, but

acquitted all  others.   Against  the acquittal  of  other  accused persons,

challenge was not laid by the State or the complainant and, therefore,

their  acquittal  attained  finality.   However,  these  appellants  filed  their

separate appeals challenging the conviction and sentences awarded by

the trial court in which attempt they have failed as the High Court has

found the appeals to be devoid of any merits.  During the pendency of

the  appeal  before  the  High Court,  the  appellants  were  given  bail  by

suspending their sentences, the High Court, therefore, directed them to

surrender before the trial court to serve out their sentences.   

4. In the SLPs filed by the appellants, leave was granted on 21st February,

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2014.   Thereafter, on 13th October, 2014,  A-2 was released on bail.

Insofar as A-1 is concerned, he was not granted bail and, therefore, he

has remained in jail during the pendency of these appeals.  

5.  Mr.  Nagendra  Rai,  learned  senior  counsel  appeared  for  these  two

appellants  to  argue  these  appeals.   Mr.  Abhinav  Mukherji,  counsel

contested  the  appeal  by  making  his  submissions  on  behalf  of  the

respondent–State. Insofar as appellants are concerned they have made

threefold submissions in their endeavour to show that the prosecution

has not been able to prove the case beyond reasonable doubt and, in

fact,  it  was  a  case  of  faulty  and  partial  investigation.  The  threefold

submissions in  this  behalf,  projected by the learned counsel,  are the

following:  

(i) It is submitted, in the first instance, that it was admittedly a case of

land dispute as both the parties were claiming that the land which was

being plowed by the complainant belonged to the accused persons.  It

was  further  pointed  out  that  even  as  per  the  prosecution,  quarrel

erupted when the appellants objected to the said fields being plowed by

PW-7, his father and brother. Learned counsel argued that, in fact, in

the  fight  that  ensued,  even  accused  party  was  attacked  by  the

complainant's party and both the sides had received injuries.  However,

the Investigation Officer (IO) did not bother to mention about the injuries

suffered by the persons belonging to the accused party and this aspect

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was totally sidetracked.  Referring to the deposition of Dr. C.P. Sinha

(PW-2), it was pointed out that A-2 was also found injured on whose

person as many as six injuries were found.  It was argued that there

were two plots, Plot No. 3497 and Plot No. 3595 whereas Plot No. 3497

belonged to the complainant party, Plot No. 3495 belonged to accused

persons.  It was submitted that at the time of incident, the complainant

party was in fact plowing Plot No. 3495 which belonged to the accused

party.  For this purpose, the deposition of PW-10, Shri. Jai Narain Singh

who is also the resident of that area was referred to. On this basis, it

was argued that fault lied with the complainant party who had interfered

with  the  plot  belonging  to  the  accused  party  which  gave  justifiable

reason  to  the  accused  party  to  protest  and  because  of  this  reason

sudden  fight  took  place.   The  submission  was  that  it  was  not  a

pre-meditated act but both the parties got raged due to the aforesaid

dispute about the ownership of the plots.  A-1, therefore, could not be

convicted  of  committing murder and punished under Section 302 of

IPC, more so, when accused party also got injured in the said fight.

(ii) It was further submitted that the medical evidence by the doctors

who examined PW-7, his brother as well as his father was at variance

with the ocular evidence i.e. the description of the incident as given by

the PW-7.  In this behalf, it was submitted that PW-2, Dr. C.P. Sinha,

who had examined Bindeshwar Prasad, brother of PW-7, found that the

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injuries were caused by hard fluid substances and was simple in nature.

The same medical evidence was also referred to in respect of father of

PW-7 which showed only one incised wound which according to PW-2

was caused by a sharp cutting weapon.   

The  learned  counsel  for  the  appellants  referred  to  postmortem

report (Exh. 7) of deceased Lala Mahto.  It is stated therein that injury

was caused by sharp cutting heavy weapon.  It was, thus, argued that

version of PW-7 that it was a gun shot injury, was clearly wrong and

contrary to the medical evidence and, therefore, PW-7 did not describe

the incident correctly and was unworthy of any credence.

(iii) Last submission of the counsel for the appellants was that injuries

on the deceased as well  as on PW-7 and his brother were not  duly

explained.  This submission was also based on what is argued above,

namely, the injuries as stated by the eye-witnesses are at variance with

the injuries recorded in the medical examination of these persons.

It  was,  thus,  submitted  that  when  there  happens  to  be

inconsistency between the ocular and the medical evidence and  when

medical  evidence  makes  the  oral  testimony  improbable,  the  same

becomes  a  relevant  factor  in  the  process  of  evaluation  of  such

evidence.   However,  the  High  Court  has  not  at  all  appreciated  the

medical  evidence even when the medial  evidence completely derails

the prosecution version so far  factum of  murder by means of rifle is

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concerned.   In  such  case  the  ocular  evidence  should  have  been

rejected in toto.

It was also submitted that in the present case when evidence of

prosecution witnesses (PWs) has been disbelieved with regard to other

co-accused  (since  acquitted)  then  in  that  event  there  was  no

justification  to  accept  its  reliability  with  regard  to  other  co-accused.

Number of judgments were cited in support of the aforesaid arguments

advanced by both the counsel for the appellants.

6. Learned counsel for  the State, on the other hand, submitted that  the

appellants  had  made the  aforesaid  submission  by  selectively  picking

certain portions from oral testimonies of the witnesses. According to him,

when the ocular evidence is read in its entirety along with the medical

evidence, the plea of the appellant would be found to be untenable.  It

was submitted that the High Court in its detailed judgment had dealt with

all the aforesaid submissions and after duly appreciating the same did

not find any substance therein. He also referred to the statements of

some independent  witnesses  as  well  who supported  the  prosecution

version.  He emphasised that even as per the deposition of PW-2, bullet

injury by rifle was not ruled out.   

7. After considering the respective submissions along with the material on

record and going through the judgments of  the courts  below, we are

inclined to concur with the view taken by the High Court in affirming the

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conviction and sentence of these two appellants.  

8. We may  mention,  in  the  first  instance,  that  in  the  statement  of  the

appellants  recorded  under  Section  313  of  the  Code  of  Criminal

Procedure (Cr.PC), the defence taken was that of the total denial of the

occurrence. It was stated that because of the long standing land dispute

they were falsely implicated in this case.  On the contrary, according to

these appellants, they were attacked by the complainant party for which

the accused party had got P.S. Case No. 117/1982 registered against

them and the case in-question was nothing but a counter blast.  This

defence is not only against the record but not even argued or pleaded by

the counsel for the appellants.  On the contrary, the entire focus of the

appellants' argument is that on the basis that due to the land dispute, a

sudden quarrel and scuffle took place between the two parties wherein

both were injured.   This is clearly contrary to the stand taken by the

appellants in their statements given under Section 313 of Cr.P.C. where

they completely denied the occurrence itself.

9. Regarding the argument of the counsel for the appellants that there is

contradiction between the oral evidence and the medical records, we do

not find any such inconsistency as alleged by the defence.  Insofar as

injury inflicted on the deceased Lala Mahto is concerned, no doubt PW-2

(Dr. C.P. Sinha) has stated that it seemed to have been caused by a

sharp cutting weapon. However, at the same time it is pointed out that

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injury in nature was one incised weapon 4 ½ x1”x scalp bone deep on

the right side of head injuring the right parital lob of brain laceration of

this condex cells resulting to unconsciousness and paralysis of the left

side  of  the  body.   It  is  significant  to  mention  that  he  has  further

categorically stated that in his opinion such an injury could have been

caused by rifle  shot as well.  Likewise, in the postmortem report also, it

is stated that injury was ante-mortem which was incised wound of the

same measurement and description as given in report of PW-2.  This

post-mortem report further discloses that on dissection, it was found that

skull was cut and fractured corresponding to the level of the injury and

brain was lacerated by pieces of bone.

10. Likewise,  insofar  as  injuries  which  were  found  on  the  person  of

Bindeshwar Prasad, brother of PW-7 description thereof is as under:

“(i) One lacerated wound 1”x1”/4x1”/4 on the  head internally.

(ii) Three lacerated wound of various sizes- sizes ranging 2 ½” x ¼ “x ¼” to 1”x ¼”  x ¼” on the back.”  

No doubt,  it  is  mentioned  that  the  aforesaid  injuries  were  simple  in

nature.  However, the learned counsel for the appellants conveniently

omitted  to  mention  about  the  injuries  inflicted  upon  PW-7  which

according to PW-2 were as under:

“1. Multiple Pea sized gunshot wound (pillets) on the left scapular region of the back.  'All were superficial.'

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2. One Pea sized pillet wound on the left side of head posterially.  It was also superficial.”

These injuries are sufficient to rope in A-2 for offences under Section

307, IPC.  When we examine the matter in the aforesaid perspective we

do not find any inconsistency between ocular evidence and the medical

evidence.  How medical evidence is to be collated with ocular evidence,

is described by this Court in Kamaljit Singh vs. State of Punjab1 in the

following fashion:

“8.  It  is  trite  law  that  minor  variations  between  medical evidence  and  ocular  evidence  do  not  take  away  the primacy of the latter. Unless medical evidence in its term goes  so  far  as  to  completely  rule  out  all  possibilities whatsoever of injuries taking place in the manner stated by the  eyewitnesses,  the  testimony  of  the  eyewitnesses cannot be thrown out. (See Solanki Chimanbhai Ukabhai v.  State of Gujarat  [(1983) 2 SCC 174 : 1983 SCC (Cri) 379 : AIR 1983 SC 484]. The position was illuminatingly and  exhaustively  reiterated  in  State  of  U.P.  v.  Krishna Gopal [(1988) 4 SCC 302 : 1988 SCC (Cri) 928 : AIR 1988 SC 2154]. When the acquittal by the trial court was found to  be  on  the  basis  of  unwarranted  assumptions  and manifestly erroneous appreciation of evidence by ignoring valuable  and  credible  evidence  resulting  in  serious  and substantial miscarriage of justice, the High Court cannot in this  case  be  found  fault  with  for  its  well-merited interference.”   

11. Here, PW-7 is also an injured witness.  When the eye-witness is also an

injured person, due credence to his version needs to be accorded.  On

this aspect, we may refer to the following observations in Abdul Sayeed

vs. State of Madhya Pradesh2:

1 (2003) 12 SCC 155 2 (2010) 10 SCC 259

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“28.  The  question  of  the  weight  to  be  attached  to  the evidence  of  a  witness  that  was  himself  injured  in  the course of the occurrence has been extensively discussed by  this  Court.  Where  a  witness  to  the  occurrence  has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is  a witness that  comes with a  built-in  guarantee of  his presence at the scene of the crime and is unlikely to spare his  actual  assailant(s)  in  order  to  falsely  implicate someone. “Convincing evidence is required to discredit an injured witness.” [Vide  Ramlagan Singh  v.  State of Bihar [(1973)  3  SCC  881:1973  SCC  (Cri)  563:AIR  1972  SC 2593], Malkhan Singh v. State of U.P. [(1975) 3 SCC 311 : 1974 SCC (Cri) 919 : AIR 1975 SC 12],  Machhi Singh  v. State of Punjab [(1983) 3 SCC 470 : 1983 SCC (Cri) 681], Appabhai v. State of Gujarat [1988 Supp SCC 241 : 1988 SCC (Cri)  559 :  AIR 1988 SC 696],  Bonkya  v.  State of Maharashtra  [(1995) 6 SCC 447 : 1995 SCC (Cri) 1113], Bhag Singh  [(1997) 7 SCC 712 : 1997 SCC (Cri) 1163], Mohar v. State of U.P. [(2002) 7 SCC 606 : 2003 SCC (Cri) 121] (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan [(2008) 8 SCC 270 : (2008) 3 SCC (Cri) 472],  Vishnu  v. State of Rajasthan  [(2009) 10 SCC 477 : (2010) 1 SCC (Cri) 302],  Annareddy Sambasiva Reddy  v.  State of A.P. [(2009) 12 SCC 546 : (2010) 1 SCC (Cri) 630] and Balraje v. State of Maharashtra [(2010) 6 SCC 673 : (2010) 3 SCC (Cri) 211]

29.  While deciding this issue, a similar view was taken in Jarnail  Singh  v.  State  of  Punjab  [(2009)  9  SCC  719  : (2010) 1 SCC (Cri) 107] , where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29) “28.  Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full  details of the incident as he was present at the time when the assailants reached  the  tubewell.  In  Shivalingappa  Kallayanappa  v. State of Karnataka [1994 Supp (3) SCC 235 : 1994 SCC (Cri) 1694] this Court has held that the deposition of the injured  witness  should  be  relied  upon  unless  there  are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident. 29.  In State of U.P. v. Kishan Chand [(2004) 7 SCC 629 :

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2004 SCC (Cri) 2021] a similar view has been reiterated observing that the testimony of a stamped witness has its own  relevance  and  efficacy.  The  fact  that  the  witness sustained  injuries  at  the  time  and  place  of  occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard  his  testimony,  it  should  be  relied  upon  (vide Krishan v. State of Haryana [(2006) 12 SCC 459 : (2007) 2 SCC (Cri) 214] ). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.”

30. The law on the point can be summarised to the effect that  the  testimony  of  the  injured  witness  is  accorded  a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence  at  the  scene  of  the  crime  and  because  the witness  will  not  want  to  let  his  actual  assailant  go unpunished merely to falsely implicate a third party for the commission  of  the  offence.  Thus,  the  deposition  of  the injured  witness  should  be  relied  upon  unless  there  are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.”

12. In this very judgment, relationship between the medical evidence and

ocular  evidence  was  also  discussed,  based  on  number  of  earlier

precedents, as under:  

“33.  In  State of Haryana v. Bhagirath  [(1999) 5 SCC 96 : 1999 SCC (Cri) 658] it was held as follows: (SCC p. 101, para 15)

“15.  The opinion given by a medical witness need not be the  last  word  on  the  subject.  Such an  opinion  shall  be tested  by  the  court.  If  the  opinion  is  bereft  of  logic  or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts  it  is open to the Judge to adopt the view which is more objective or probable. Similarly if  the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is

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said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject.”

(emphasis added)

34.  Drawing on Bhagirath case [(1999) 5 SCC 96 : 1999 SCC (Cri) 658] , this Court has held that where the medical evidence is at variance with ocular evidence, “it has to be noted that it would be erroneous to accord undue primacy to  the  hypothetical  answers  of  medical  witnesses  to exclude the eyewitnesses' account which had to be tested independently and not treated as the ‘variable’ keeping the medical evidence as the ‘constant’ ”.

35.   Where the eyewitnesses'  account  is found credible and trustworthy, a medical opinion pointing to alternative possibilities  cannot  be  accepted  as  conclusive.  The eyewitnesses'  account  requires  a  careful  independent assessment and evaluation for its credibility, which should not  be  adversely  prejudged  on  the  basis  of  any  other evidence,  including  medical  evidence,  as  the  sole touchstone for the test of such credibility.

“21.  …  The  evidence  must  be  tested  for  its  inherent consistency  and  the  inherent  probability  of  the  story; consistency with the account of other witnesses held to be creditworthy;  consistency  with  the  undisputed  facts,  the ‘credit’ of the witnesses; their performance in the witness box;  their  power of  observation,  etc.  Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. [Vide Thaman Kumar v. State (UT of Chandigarh) [(2003) 6 SCC 380 : 2003 SCC (Cri) 1362] and Krishnan v. State [(2003)  7  SCC 56 :  2003 SCC (Cri)  1577]  at  SCC pp. 62-63, para 21.]”   

13. We  may  point  out  at  this  stage  that  apart  from  PW-7,  there  were

independent  witnesses  and  injured  eye-witnesses  whose  depositions

have been taken into account.  We would like to reproduce following

description of  these witnesses as recorded by the High Court  in  the

impugned judgment.

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“The remaining witnesses happen to be material witness. PW-4 had deposed that on the day and time of occurrence while he was going to ease himself towards south to his village  he  found  Lala  Mahto   ploughing  the  field  while Anandi  was sowing the seed.   At  that  time Dulli  Mahto armed with lathi, Ram Lagan Prasad, Surendra, Rajendra, Arun armed with gun, Ram Bilas and Umesh armed with Garasa and Subhash armed with  Bhala  came and said that they will  not allow to plough the filed.   Lala Mahto retaliated by saying that land belongs to him, hence he will plough.   On  this  Dully  Mahto  ordered.  Khelawan  fired causing  injury  over  head  of  Lala  Mahto  who  fell  down. Blood  began  to  ooze.   Thereafter,  Baleshwar  had  fired causing injury over left  upper portion of back as well as over head.  Ram Bilash assaulted with Garasa over head of Anandi.   Umesh and Dulli  assaulted Bindeshwar with Paina which was corrected as Dully  had assaulted with Lathi and Umesh with Garasa then thereafter all of them left the place.  They have taken dead body to P.S. along with Anandi and Bindeshwar.  During cross-examination he had  narrated  that  the  total  area  of  the  disputed  land happens to be six decimal having boundary North Dully Mahto,  South  Harnath  Sah,  West  Lala  Mahto  and  East Prabhu Mahto.  He had not  seen quarreling Duli  Mahto with  Lala  Mahto  with  regard  to  the  disputed  land. However, the  dispute  was  going  on  amongst  them with regard to other plot lying in the same vicinity.  A 144 and 145  Cr.P.C.  proceeding  had  already  been  fought  in between.  In para-5 he had deposed that he was going towards pond lying South to the village and during said course he had seen mob present at the disputed land who were only accused persons.  He heard sound of firing from that place only.  He became afraid of and remained there. The persons who were engaged in nearby field witness the same.  In para-6 had said that the villagers came after half an  hour.   Accused  persons  had  already  escaped  there from before arrival of the villagers. Then thereafter he had gone to the place of occurrence and had seen the injured. In para-10 there happens to be contradiction. In para-11 had denied with regard to counter case.  He had further denied having Dulli Mahto in injured condition.

14. P.W.-5 is one of the injured who had deposed that on the alleged date and time of occurrence he along with his father Lala Mahto brother Anandi and Indu had gone to the P.O. land and were engaged in agriculture work.  At that very time Dulli armed with lathi, Ram Khelawan armed with  rifle,  Sheo  Nandan,  Baleshwar,  Ram Lagan,  Arun,

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Surendra and Rajendra armed with gun, Subhash armed with Bhala,  Ram Bilas and Umesh armged with Garasa came  there  out  of  whom  Kehlawan  had  forbidden  his brother Anandi to plough the field.  He claimed the land belongs to him.  The same was retaliated over which Dulli ordered to kill.   Ram Khelawan fired causing injury over head of  his  father.  Baleshwar  fired causing injury  over upper portion of back Anandi as well as head.  Ram Bilas had assaulted with  Garasa over  his  head.   Umesh and Dulli had asaulted him with Garasa and lathi respectively. Other  accused  were  terrorizing  the  villagers  by  making indiscriminate  firing.  Then  thereafter  all  the  accused persons left therefrom.  Brahamdeo Sah, Jagarnath Yadav, Kameshwar Yadav and Biseshwar Sah along with others have witnessed the  occurrence out  of  whom Biseshwar had gone in camp of accused.  Thereafter, the vilalgers lifted his father to P.S. along with them where his brother Anandi gave his fardbeyan.  Thereafter they were sent to hospital  from where they were referred to PMCH during course of which his father died.  On 20.07.1982 he had produced  blood  stain  cloth  before  the  police.   During cross-examination  at  para-2  had  admitted  that  both  the persons are on litigating term since before the occurrence. In  para-4 he had disclosed that his father had ploughed the aforesaid land about three or four days ago.  As he was  not  present  so  he  could  say  whether  any  sort  of litigation had taken place or not.  At the time of occurrence paddy seed was being sown.  Then said that at that very time the field was being ploughed as well  as they were also engaged in putting seed.  He had given the boundary of the land North Dulli  Mahto,  South Harnath Sah, East and  West  Lala  Mahto  (Prosecution  party).   Then  had disclosed that the Khesra number of P.O. land happens to be 3497.  He is not aware with the fact whether there was any sort of dispute with regard to P.O. land.  In para-9 had said that he had gone to P.O. land along with his father and brother.  They have not met with accused in midst of way.  He had not seen the accused persons in the vicinity of the P.O. land.  In para-11 had said that for the first time he had seen accused persons at some distance from his filed  approximately  four  lagga  west  who  were  variously armed. They came and said to shoot over which firing was made.  His brother Indu fled away while they remained in the field.  Firing was made which cause injury to his father. At that very time his father was east to him at a distance of 4-5  hands.   He  has  seen  his  father  sustaining  firearm injury  at  Southern-Western  corner  of  the  field.   He  fell down over which he along with Anandi rushed and tried to

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lift.  No firing was made at that very time.  Then said that they  had already  sustained injury.  He further  said  that Anandi had sustained injury  just after falling of his father. The whole occurrence was over within 5 to 10 minutes. He had said that even after sustaining gun shot injury his brother  rushed  to  his  father.   He  also  gone  there  and during course thereof, he was assaulted.  In para-14 had said that he had not found any injury over the person or Umesh  and  Ram  Khelawan  at  the  P.O.  He  himself volunteered in course of  fleeing there was confrontation with villagers during course of which they sustained injury. He had also heard with regard to Dulli Mahto.  In para-12 had disclosed that he had seen blood at Southern-Western corner of his field.”   

14. The aforesaid analysis of ours is sufficient to reject the other contentions

advanced by  the  appellants.   When the appellants  had  come to  the

place  of  occurrence  armed  with  deadly  weapons,  their  intention  and

purpose would be more than apparent and, therefore,  the appellants

cannot argue that  incident occurred at the spur of  the moment.  The

argument that there was a longstanding land dispute between the two

parties,  in  fact,  goes  against  the  appellants  as  it  shows  previous

animosity due to the said dispute because of which the appellants in

order to teach 'lesson'  to the complainant party attacked them in the

manner  described  by  the  prosecution.   In  view  of  the  aforesaid

discussion, various judgments cited by learned counsel for appellants

will have no bearing or application to the facts of the instant case.  It is,

therefore, not even necessary to discuss them.

15. We, therefore,  do not  find any error  in convicting A-1 for  the offence

punishable under Section 302 IPC as well as Section 27 of the Arms Act

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and A-2 for the offence punishable under Section 307 IPC and Section

27 of the Arms Act.   

16. Coming  to  the  sentence,  insofar  as  A-1  is  concerned,  since  life

imprisonment  is  the  minimum  sentence  that  is  to  be  awarded  for

commission of offence of murder under Section 302 of IPC, we maintain

the same.  However, we are conscious of the fact that A-1 is almost 80

years of age.  Further, incident occurred almost 34 years ago.  In these

circumstances, he may prefer a representation to the State for remission

of his further sentence.  When such a representation is filed by A-1,

same shall be given due consideration by the competent authority within

the four corners of law.   

A-2 is also 80 years of age.  Going by this consideration coupled with

the fact that incident happened 34 years ago, we modify the sentence of

7 years R.I. to that of the period already undergone.  Since he is on bail,

his bail bond shall stand discharged.   

Appeals are disposed of in the aforesaid terms.  

.............................................J. (A.K. SIKRI)

.............................................J. (N.V. RAMANA)

NEW DELHI; JANUARY 09, 2017.