JUDGMENT

C. NAGAPPAN, J. –

1. Both the appeals are preferred against the judgment and order dated 22.12.2010 passed by the High Court of Uttarakhand at Nainital in Criminal Appeal No.927 of 2001.

2. The appellants 1 to 4 in Criminal Appeal No. 1884 of 2011, Sudarshan Verma, Jagdish, Deep Narain and Rajendra were accused Nos. 1 to 4 and the appellant Ganesh Datt in Criminal Appeal No.1881 of 2011 was accused No.5 in Sessions Trial case No.109 of 1990 on the file of Vth Additional Sessions Judge, Nainital and were tried for the charges under Sections 147, 148, 302 read with 149, 307 read with 149 and Section 324 read with 149 IPC, and the Trial Court convicted and sentenced each of them to undergo life imprisonment under Section 302/149 IPC; Rigorous Imprisonment for a period of 7 years under Section 307/149 IPC; Rigorous Imprisonment for a period of one year under Section 324/149 IPC, Rigorous Imprisonment for a period of six months under Section 147 IPC and Rigorous Imprisonment for a period of one year under Section 148 IPC. Challenging the conviction and sentence they preferred Criminal Appeal No.927 of 2001 and the High Court of Uttarakhand at Nainital dismissed the appeal. Aggrieved by the same they have preferred the present appeals.

3. Shorn of unnecessary details the case of the prosecution is as follows :

PW1 Bali Raj, PW2 Moti Lal deceased Prabhunath and Raj Bali are sons of PW3 Ram Lakhan. On 26.8.1989 at about 6.00 a.m. they along with servant Bahadur, were sitting in the verandah of the house of Prabhunath and at that time accused persons Sudarshan Varma armed with country made pistol, Deep Narain armed with gun, Jagdish armed with axe (Farsa), Rajendra and Ganesh Datt armed with lathis came there and accused Sudarshan shouted to kill them today itself and by so saying he fired at Prabhunath with pistol and accused Deep Narain fired gunshots at PW2 Motilal and Raj Bali and accused Jagdish attacked PW2 Motilal with axe on neck which he defended by left hand resulting in injuries and accused Rajendra and Ganesh attacked them with lathis. On the sound of fire and shouting the villagers came there and accused fled away.

4. Accused Sudarshan who was then the village Pradhan went to the Police Station Rudrapur and lodged a First Information Report against Prabhunath, Motilal and Bali Raj at 7.25 a.m. on 26.8.1989 and a case was registered as Crime No. 583 of 1989 for the alleged offences under Sections 307 and 324 IPC. PW3 Ram Lakhan took the injured Prabhunath, PW2 Moti Lal and Raj Bali to the Police Station Rudrapur and lodged a First Information Report at 8.10 a.m. on the same day against accused Sudarshan, Jagdish, Deep Narain, Rajendra and Ganesh Datt, on which a case was registered as Crime No.583-A for the alleged offences under Section 147, 148, 149, 307, 324 and 323 IPC and the injured were sent to hospital.

5. PW6 Dr. A.K. Rana, Medical Officer in Jawahar Lal Hospital Rudrapur examined Prabhunath at 9.40 a.m. on 26.8.1989 in the hospital and found the following injuries:

“i) An abrasion 4 cm x 4 cm on top of head 12 cm from left ear lobe. Fresh bleeding present.

ii) A contusion 15 cm x 10 cm on left jaw with multiple punctured wound on whole surface. Advised X-ray skull. Fresh bleeding present. Punctured wound size 0.5 cm x 0.25 cm x not probed (depth) with margins inverted.

iii) A contusion 15 cm x 20 cm on left side of whole neck with multiple punctured wounds measuring 0.25 cm x 0.25cm x not probed (depth) with margins of wound inverted. Advised X-ray neck and left shoulder. Fresh bleeding present.

iv) An incised wound 7 cm x 5 cm x muscle deep on left upper arm, 4 cm above top of left elbow. Fresh bleeding present.

v) An incised wound 5 cm x 5 cm bone deep on tip of left elbow extending upwards. Fresh bleeding present.

vi) An incised wound 5 cm x 2 cm x muscle deep on left side bone of middle finger. Fresh bleeding present.”

He opined in his report Exh.A8 that injury No.1 was simple and could have been cause