Honble SHARMA, J.–Ten appellants viz. Shiv Singh, Mohan Singh, Rajendra Singh, Suresh, Jaidev, Bhupendra, Kishan, Vijay, Nirbhay and Mohammad along with one Khem Singh (now deceased) were the accused on the file of learned Additional Sessions Judge (Fast Track) No. 2 Bharatpur bearing Sessions Case No. 51/2001. Learned Judge vide judgment dated August 5, 2002 convicted and sentenced the appellants as under:–

U/s. 302/149 IPC:

Each to suffer Life imprisonment and fine of Rs. 500/- in default to further suffer six months imprisonment.

U/s. 323 IPC:

Each to suffer simple imprisonment for six months.

U/s. 148 IPC:

Each to suffer simple imprisonment for one year.

Appellants Rajendra Singh and Nirbhay were also convicted and sentenced under section 3/25 Arms Act to suffer simple imprisonment for one year and fine of Rs. 500/- in default to further suffer two months simple imprisonment.

All the sentences were ordered to run concurrently.

(2). The prosecution case as unfolded during trial is as under:–

On August 4, 1997 at 11.30 AM informant Prakash (Pw.1) submitted a written report (Ex.P-1) at police station Nadabi, stating therein that around 6-7 AM when he accompanied by his younger brother Brijendra Singh (deceased) had been to their field, the appellants armed with Lathis, Pharsas and Guns came over there. Shiv Singh exhorted to kill the informant and Brijendra Singh thereupon Rajendra Singh opened fire that hit the neck of Brijendra Singh. Another fire opened by Nirbhay caused injury on the left side of chest and third fire opened by Mohan Singh hit the chin of Brijendra Singh. Mohammad then gave Pharsa blow on the nose whereas other assailants inflicted lathi blows. Brijendra Singh died on the spot. Hearing the alarm raised by informant Siya Ram and Ram Kishan rushed to the spot. Before fleeing away the assailants gave beating to informant and Siya Ram and threatened their family members. The Police Station Nadbai registered a case under sections 147, 148, 149, 302 and 323 IPC and 3/25 Arms Act and investigation commenced. Post mortem on the dead body was performed, statements of witnesses were recorded, the accused were arrested, necessary memos were drawn and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2 Bharatpur. Charges under sections 147, 148, 149, 323, 307 and 302 IPC and 3/25 Arms Act were framed. The appellants denied the charges and claimed trial. The prosecution in support of its case examined as many as 15 witnesses. In the explanation under section 313 Cr.P.C., the appellants claimed innocence. The appellants examined one witness in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.

(3). We have heard learned counsel for the parties and closely scrutinised the material on record.

(4). Death of Brijendra Singh was homicidal in nature as is evident from the postmortem report (Ex.P-31) according to which following ante mortem injuries were found on the dead body:–

1. Contusion (red) 2 1/2 x 2cm on Lt. arm antro laterally in upper half

2. Abrasion (bright red) 3 x 1/3 cm on chest Rt. side below clavicle in Ist ICS,

3. Abrasion (bright red) 1 1/2 x 1/3 cm on chest Rt. side below clavicle in IInd ICS

4. Abrasion (bright red) 2 1/2 x 3/4 cm on Rt. elbow posteriorly.

In all gun shot wound there is wound of entry no any wound of entry. There is no blackening, no gun powder, no burning and no tattooing direction is inward to body. Margin of wound are inverted.

On face 7 gun shout wound 1/4 x 1/4 cm x bone deep with bleeding.

On neck 13 gun shot wound 1/4 x 1/4 muscle deep with bleeding

On Rt. shoulder region 2 gun shot wound 1/4 x 1/4 x bone deep with bleeding.

On Lt. shoulder 2 gun shot wound 1/4 x 1/4 cm x bone deep.

On lt. side of chest 8cm shot wound 1/4 x 1/4 with bleeding.

In the opinion of Dr. Mangi Singh (Pw.9) the cause of death was due to injury to lung

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