Kanwaljit Singh Ahluwalia, J.The prosecution projected before the trial Court that on 14.05.2005, on five scooters, each having 2/3 riders, in order to commit smuggling of illicit liquor were passing through Rajvat Crossing. The men hired by the authorized contractor in order to foil an attempt to smuggle illicit liquor had formulated a team and were present at Rajvat crossing. Seeing the team of contractor, the alleged riders on the five scooters fired shots, resultantly, Kulveer was killed and Ramavtar (P.W. 4) received fire arm injuries. To assail the conviction and sentence, appellants, have filed two separate appeals. Jagdish @ Jaggi @ Raja S/o. Jagir Singh, Manjeet Singh, Baljeet Singh, Bittu @ Kulwant Singh, Chhinda @ Surendra Singh, Mahendra Singh and Jaranel Singh @ Jelly have filed D.B. Criminal Appeal No. 282/2006 and Gopi @ Prem Singh and Jagdish @ Jagga have instituted D.B. Criminal Appeal No. 331/2006. We shall decide both the appeals by this common judgment.

2. The written report (Exhibit-P/1) giving details of the occurrence and participation of the accused was presented by Vikram Singh (P.W. 1) before S.H.O., Police Station Shivaji Park, Alwar. In pursuance thereof, FIR 99/2005 (Exhibit-P/41) was registered for the offence under Sec. 147, 148, 149, 302, 307 IPC and Section 16/54 Excise Act and Section 3/25 of Arms Act.

3. In the investigation of the said FIR, eleven persons, namely (1) Jagdish @ Jaggi @ Raja, (2) Gopi, (3) Baggi, (4) Jagdish S/o. Jagtar (5) Manjeet, (6) Jaranel Singh @ Jelly (7) Girraj, (8) Mahendra, (9) Chhinda, (10) Bittu, (11) Baljeet Singh alongwith two others, were nominated as accused. Out of the said eleven persons, Girraj Meena died during the course of the trial and proceedings were dropped against him. Baggi being juvenile, was sent for the trial before concerned Juvenile Justice Board.

4. Out of the said nine persons, Jagdish @ Jaggi @ Raja S/o. Jangir Singh, was substantively convicted for the offence under Sec. 302 IPC, whereas, remaining accused were convicted under Sec. 302/149 IPC. Bittu @ Kulwant Singh S/o. Ranjeet Singh and Chhinda @ Surendra Singh S/o. Dalip Singh were substantively convicted for the offence under Sec. 307 IPC, whereas, remaining accused were convicted for the offence under Sec. 307/149 IPC. All the appellants were convicted for the offence under Sec. 148 IPC. Seven appellants, namely Prem Singh, Manjeet Singh, Baljit Singh, Bittu @ Kulwant Singh, Chhinda @ Surendra Singh and Mahendra Singh S/o. Jagtar Singh were also convicted for the offence under Sec. 3/25 Arms Act. The trial Court having convicted the above appellants, vide a separate order of even date, sentenced them as under:

U/s. 302 and 302/149 IPC - to undergo life imprisonment and to pay a fine of Rs. 2000/- each.

U/s. 307 and 307/149 IPC - to undergo ten year R.I. and to pay a fine of Rs. 1,000/- each, in default of payment of fine, to further undergo two months R.I.

U/s. 148 IPC - to undergo two year R.I.

U/s. 3/25 Arms Act - to undergo two years R.I. and to pay a fine of Rs. 1,000/-, in default of payment of fine, to further undergo two month R.I.

5. The prosecution story was unfolded by Vikram Singh (P.W. 1) in written report (Exhibit-P/1). He stated in the Court that on 14.5.2005, in the morning at about 5:30 A.M., they received an information from an informant that certain persons were smuggling illicit liquor. Upon receiving the information, they all stood near Rajvat ground, near Hanuman Mandir. Police and Excise officials were informed accordingly. Around 5:30 A.M., from Rajvat ground, 4/5 scooters came having two or three riders on each scooter. They reached near the railway crossing carrying illicit liquor and country made pistol. Vikram Singh along with his companion Pradeep were sitting at one side of Rajvat ground. Kulveer and Ramavtar were sitting along railway line. Sushil and Rajveer were sitting towards the side of Mandir. Seeing them, accused said that persons of the contractor have come and they started firing. Jagdish @ Jaggi @ Raja fired at Kulveer. He fell at the spot. Then, Chhinda fired a shot which hit Ramavtar. When the accused were running after firing, Rajveer and Sushil made a effort to apprehend Baggi. Baggi fired a shot. Rajveer ducked the same by lowering himself down. Vikram Singh stated that in all, they were 12/13 persons, which included Mahendra, Bittu, Jaranel, Jagdish @ Jagga, Gopi, Girraj etc. He informed the contractor that their persons had received injuries and one person had died. Ramavtar was in an injured condition. Vikram Singh along with his companions transported Kulveer and Ramavtar to hospital, where Kulveer was declared dead by the doctor.

6. Besides the first informant, the presence of Ramavtar (P.W. 4), the injured at the spot is stamped. He has received an injury in the occurrence and thus, is an eyewitness of the occurrence.

7. Ramavtar appearing in the Court as P.W. 4, stated that on 14.5.2005, Vikram Singh who was incharge on behalf of the contractor, came in the morning at 4:00 A.M. and said that an information has been received that 4/5 scooters are coming from a side of Rajvat crossing. Vikram Singh constituted a team and they were taken to the spot. They reached at the place of occurrence at about 5:00 AM. It was about 5:30 A.M., then three or four scooters came. The last scooter following the other scooters slipped. They were 11/12 persons on the scooters. They were armed with country made pistol. Rajvinder and Sushil were sitting towards the road on brim. Vikram Singh and Pradeep were sitting behind the bushes. Ramavtar and Kulveer were sitting on the railway line near crossing. Then Jaggi @ Raja and Gopi fired shot which hit Kulveer. This witness identified the accused Raja and Gopi in the Court. This witness further stated that when he reached near Kulveer, the accused Bittu and Chhinda fired a shot, which hit him. This witness identified Bittu and Chhinda. This witness further stated that at the spot, the accused Baljeet, Manjeet, Jelly, Baggi @ Bagga, Chhinda, Bittu, Mahendra, Jagga, Jelly and Gopi and two or three other persons were present, whose names are not known to him.

8. In cross-examination, this witness stated that Gopi had not fired a shot. Gopi was driving the scooter.

9. Sushil (P.W. 2) stated that on 14.5.2005, he along with others had gone to Hanuman Mandir and Rajvat crossing. In the raiding party, there were 8/10 persons. This witness stated that due to shot fired by Jaggi @ Raja, a person had died. Bittu and another, who were not present in the Court, fired a shot at him and Rajveer. Ramavtar had received pellet injuries from the shot fired by Raja. Then this witness stated that those all persons, who were smuggling illicit liquor were 11/12 in number and they were riding on four or five scooters. This witness stated that he can only identify three or four persons. Then this witness further stated that Jagdish @ Raja had fired a shot on the person of the deceased. This witness refused to identify Jagdish @ Jagga, Mahendra Singh, Baljeet and Gopi.

10. Rajveer Singh (P.W. 3) stated that on 14.5.2005, at about 5:30 P.M., on the information received from the informant, they reached at Rajvat crossing to apprehend illicit liquor. He along with Sushil were sitting on the brim of the road. Vikram Singh and Pradeep were sitting behind the bushes. Kulveer and Ramavtar were sitting near railway crossing. At that time, five scooters having ten or twelve riders came. They were carrying illicit liquor and country made pistol. All scooters crossed but one scooter slipped before the railway line. On that scooter, Jagdish @ Raja and Gopi were riding. They announced that the persons belonging to the contractor are present, and they be killed. Jaggi @ Raja and Gopi started firing. Then Kulveer asked as to why are you firing, then Jaggi @ Raja fired a shot on Kulveer. Then Ramavtar said that as to why you are firing, then Bittu fired a shot on Ramavtar and then, everybody ran here and there.

11. The other witnesses have also deposed on same lines. We need not notice the testimony of various other witnesses who had participated in the investigation or have recovered the weapons from the accused.

12. Suffice it to say that the prosecution in all had examined 26 witnesses. Accused in their statement recorded under Sec. 313 Cr.P.C. has denied all incriminating circumstances put to them and had pleaded false implication. The accused has examined two witnesses in defence.

13. Rano Bai (D.W. 1) pleaded alibi on behalf of his son-in-law Manjeet.

14. Sita Ram Kapoor (D.W. 2) stated that on 20.8.2005, while passing in front of police station, the police had informed him that Chhinda of their village had been detained and they had obtained his signatures on various documents and also on document Exhibit-P/84.

15. Mr. Biri Singh Sinsinwar, the learned Senior Counsel assisted by Mr. Rajesh Choudhary; and Mr. Sanjay Gangwar appearing on behalf of Mr. Ali Mohd. Khan, have submitted that in the present case, accused were not known to the witnesses. Therefore, the witnesses were not in position to identify the accused and it was incumbent for the investigating agency to hold the Test Identification Parade.

16. A perusal of the testimony of the eyewitnesses reveal that they have named the accused. It is true that some of the witnesses have stated that 4/5 scooters were coming or they have stated that 11/12 accused were coming and have prominently named four accused Jagdish @ Jaggi @ Raja, Gopi, Bittu @ Kulwant Singh and Chhinda @ Surendra Singh, as the one who have actively participated in the occurrence, and to others, no specific role has been assigned.

17. The witnesses were not cross-examined on the question regarding identity of the accused or about the fact that they never knew the accused earlier. The accused, in the present case also have not sought Test Identification Parade. In these circumstances, we are of the view that the arguments raised that the prosecution should have held Test Identification Parade is without any basis, especially when witnesses stated that they knew the accused.

18. Secondly, it is urged before us that from the prosecution story and the statement made by the witnesses, it is appellant that there was no previous grudge or enmity between the witnesses and the accused and the common object of unlawful assembly was to transport the illicit liquor. The learned counsel for the appellants contended that at the best, it is a case of smuggling of illicit liquor and to carry that object over, the accused who caused injuries and purposely had hit the deceased Kulveer and injured Ramavtar had exceeded the object of common assembly and they shall be individually liable for their act. It is contended that those who actively caused injuries shall be alone responsible and others are entitled to benefit of doubt.

19. The learned counsel for the appellants has further contended that Ramavtar (P.W. 4) in cross-examination has stated that Gopi was driving the scooter and had not fired the shot.

20. To appreciate the arguments raised, we have examined the medical evidence.

21. Dr. Phool Singh Choudhary (P.W. 13) who on 14.5.2005 was pasted as Medical Jurist, at Government Hospital, Alwar, had conducted the autopsy on the dead body of Kulveer. He had found 16 injuries on the person of Kulveer, the deceased. The injuries are on various parts of the body i.e. head, face, neck, chest, shoulder and chin. The blackening was also present around the injuries. Thus, the shots were fired at Kulveer from a close range. It is not a case of firing of one shot, but the deceased had died due to multiple shots fired. The firing of numerous shots, rule out the argument raised that the common object of the assembly was only to smuggle the illicit liquor and not to cause death of persons, who had caused obstruction.

22. As per Phool Singh Choudhary (P.W. 13), two injuries were also present on the person of Ramavtar (P.W. 4).

23. In the present case, occurrence had taken place on 14.5.2005 at 5:30 AM. The written report was made to Police Station at 7:30 AM. The special report had reached the Additional Chief Judicial Magistrate, Alwar on 16.5.2005. Thus, there was a delay of two days in reaching of the special report. Therefore, the possibility that the witnesses have widened the net by over implicating the accused cannot be ruled out, especially, when the witnesses in the categoric terms have stated that Jaggi @ Raja and Gopi had fired at Kulveer and Bitu and Chhinda had fired at Ramavtar. We are of the view that possibility that the prosecution witnesses have inflated the number of accused cannot be ruled out.

24. Vikram singh (P.W. 1) in the Court stated that Jagdish @ Jaggi @ Raja had fired at Kulveer, whereas Chhinda had fired at Ramavtar. He further stated that the name of their companion were Mahendra, Bittu, Jarnel, Jagdish @ Jagga, Gopi, Girraj etc and in all there were 12/13 persons. Thus, besides two persons, Vikram Singh has named seven persons to whom no specific overt role is assigned.

25. Sushil (P.W. 2) stated that he can only identify three or four persons. He has also assigned specific overt role to Jagdish @ Jaggi @ Raja and Bittu.

26. Ramavtar (P.W. 4) also stated that Jagdish @ Jaggi @ Raja and Gopi had fired shot at Kulveer. Bittu had fired a shot at Ramavtar. Though he submit that he knew other accused for the last three years, he has not assigned any specific role to the other accused. Ramavtar, the injured, in his examination-in-chief, stated that Jagdish @ Jaggi @ Raja and Gopi had fired a shot at Kulveer, whereas Bittu and Chhinda had fired shot at him. This witness in cross-examination has stated that Gopi was driving the scooter, but has not fired the shot. Be that as it may, this witness has also not assigned any specific overt role to the other accused.

27. Taking totality of the circumstances, in our view, we cannot rule out that the prosecution witnesses have inflated the number of accused and had widened the net too far and had involved numerous persons and furthermore, specific role has been assigned to four persons and commensurate injuries attributed to them have emerged in the prosecution case.

28. Consequently, taking the statement of Ramavtar (P.W. 4), who is injured in the occurrence, we are of the view that the involvement of Jagdish @ Jaggi @ Raja S/o. Jangir Singh, Gopi @ Prem Singh, Bittu @ Kulwant Singh, Chhinda @ Surendra Singh is fully established. To remaining appellants, we shall extend benefit of doubt as a matter of abundant caution.

29. Consequently, the appeal of Manjeet Singh, Baljeet Singh, Mahendra Singh, Jagdish S/o. Jeet Singh and Jaranel Singh is accepted. The conviction pronounced and sentence awarded qua them is set aside and they are acquitted of the charges.

30. Since we have extended the benefit of doubt to the five appellants, we modify the conviction of Jagdish @ Jaggi @ Raja, Gopi @ Prem Singh, Bittu @ Kulwant Singh and Chhinda @ Surendra Singh from the offence under Sec. 302 and 302/149 to Section 302/34 IPC.

31. Similarly, we modify their conviction for the offence under Sec. 307 and 307/149 IPC to Section 307/34 IPC. However, we uphold the sentence awarded by the trial Court on counts, which we have modified. We hold that the sentence awarded by the trial Court on all counts after modification of the offences, shall remain intact. As a result of above discussion, the appeal preferred by Manjeet Singh, Baljeet Singh, Mahendra Singh, Jagdish S/o. Jeet Singh and Jaranel Singh is accepted. The appeal filed by Jagdish @ Jaggi @ Raja, Gopi @ Prem Singh, Bittu @ Kulwant Singh and Chhinda @ Surendra Singh is disposed of.