IMPORTANT POINT
Conviction and sentence must be maintained where occurrence and presence of accused persons have been proved to hilt.

JUDGMENT

The two appellants herein, along with four other persons, were charged for committing offences under Sections 148, 302, 302/149 as well as Section 307/149 of the Indian Penal Code, 1860 (IPC). First Information Report in this behalf was registered with Police Station Sahawar, District Etah, Uttar Pradesh. The case of the prosecution, as can be discerned from the FIR which was lodged by complainant-Netrapal (PW-1) on 24th March, 1985 at 9.05 a.m. and mentions the date and time of the incident as 23rd/24th March, 1985 at 00:30 hours, is to the following effect:

2. In the night of 23rd/24th March, 1985, the complainant-Netrapal, along with his father Sonpal, was sleeping in the verandah of their sitting room and his uncle Raghuvar Dayal, along with the brother of the complainant, viz., Bhoop Singh, was sleeping inside of the said sitting room. At about 12.30 a.m., six accused, viz., Genda Lal, Ganpat, Sripal, Virendra, Ram Shankar Lodha and Iqbal came there armed with rifles and katta. They woke up the complainant's father-Sonpal and asked him where his son Chandrapal was. Hearing their voice, the complainant also woke up. His father told the accused persons that Chandarpal was plying rickshaw somewhere in Delhi and was not in the house. On hearing this, Genda started hurling filthy abuses and asked complainant's father as to where Bhoop Singh was, as they had come there to take revenge. At that very time, hearing the noise of these people, Bhoop Singh along with uncle Raghuvar Dayal woke up from sleep and came out of the room where they were sleeping. On seeing Bhoop Singh, Ganpat shouted loudly that he was Bhoop Singh and he could be killed as he was their enemy. On hearing this, Genda fired with his rifle at Bhoop Singh which hit Bhoop Singh and as a result thereof he fell down on the spot. Other persons also started firing from their rifles/weapons. The complainant came out running and raised alarm. On hearing his shouts, many persons from the village gathered there who also started shouting. Seeing all these persons from the village having gathered there, the accused persons fled away from the scene. Bhoop Singh succumbed to the injuries suffered by him. In the FIR, it was further mentioned that the dead body of Bhoop Singh was lying on the spot.

3. After recording of the aforesaid FIR, the police reached the place of occurrence and inquest was done. The dead body was sent for postmortem. Two persons who sustained injuries viz., Raghuvar Dayal (PW-2) and Sonpal (PW-3), were sent for medical examination. The police took up the investigation and, thereafter, on completion of the investigation, filed chargesheet under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C.) in the Court. Charges were framed under the aforesaid provisions.

4. The prosecution examined six witnesses which included three eye-witnesses viz., PW-1, PW-2 and PW-3, out of which PW-2 and PW-3 were injured eye-witnesses. Apart from these three witnesses, two doctors viz., Doctor O.P. Vaidya (PW-4) who had conducted post-mortem of Bhoop Singh and the Doctor who had medically examined the injured persons, were also examined. The Investigating Officer S.I. Dinesh Kumar Sisodiya, was examined as PW-5 and Head Constable Bhanwar Singh as PW-6. Statements of the accused persons were recorded under Section 313 Cr.P.C., who denied the material which had surfaced during the trial and with which they were confronted.

5. As per the postmortem report of Bhoop Singh, he suffered three ante mortem injuries. Two injuries were in the nature of abrasion below left eye and on chin, on left side which were not serious in nature. However, third injury which was the result of fire arm wound of entry 2X2 c.m. through and cavity deep on left side front of neck middle part along with margins lacerated and inverted became fatal and, in the opinion of the Doctor (PW-4), death of Bhoop Singh was caused due to hemorrhage and shock as a result of the said fire arm injury.

6.