JUDGMENT : Raghubar Dayal, J. Kunjan Singh, Narain Lalji and Mohan were acquitted by the Additional Sessions Judge, Kheri of the offences under Section 302 read with Section 34 and Section 324 read with Section 34 Indian Penal Code. The State appeal against acquittal was allowed by the High Court and the appellants other than Kunjan were convicted on two counts of offences under Section 302 read with Section 34 for committing the murder of Har Sewak and his son Daya Ram and also of the offences under Section 324 read with Section 34 causing simple hurt to Ram Pipari and Raja Ram. Kunjan was convicted of the offence under Section 302 Indian Penal Code for the murder of Daya Ram and was sentenced to death. He was also convicted of the offence under Section 302 read with Section 34 for the murder of Har Sewak. He was further convicted of the offence under Section 324 read with Section 34. All the appellants were sentenced to life imprisonment under Section 302 read with Section 34 and to shorter terms of imprisonment for the offence under Section 324 read with Section 34 Indian Penal Code. 2. Kunjan filed Criminal Appeal No. 195 of 1963 in this Court as a matter of right in view of Article 134(1)(a) of the Constitution. The other three convicted persons were granted certificate under Article 134(1)(c) of the Constitution by the High Court on the ground that Kunjan Singh had a right of appeal to this Court and his co-accused who had been sentenced to imprisonment for life be also given a chance to have their cases argued before this Court as they had been convicted on the same facts as were found proved by the Court against Kunjan Singh. The appeal by these three persons is Criminal Appeal No. 8 of 1964. 3. A preliminary objection has been taken on behalf of the State in view of the decision of this Court in Narsingh v. State of Uttar Pradesh, (1955) 1 SCR 238 . This decision, however, may not apply to the present case as the certificate is not granted under any misapprehension of these persons having a right of appeal to this Court as had led to the grant of certificate in Narsingh case. This decision, however, may not apply to the present case as the certificate is not granted under any misapprehension of these persons having a right of appeal to this Court as had led to the grant of certificate in Narsingh case. On principle, it may not be possible to take objection to the cases of these persons being heard in this Court when this Court has to hear an appeal by a co-accused on merits and there exists the possibility of its appreciating the evidence on facts in a manner different from the appreciation by the Court below. If this Court acquits a person who had a right of appeal on the view that the evidence produced in the case is inadequate to establish the charges on which the various accused were tried and convicted, it is just and proper that the benefit of that view be available to the other co-accused. It is merely a matter of procedure whether the appeal of those persons comes to this Court under certificate under Article 134(1)(c) or on special leave being granted by this Court to those persons. It appears to us to be better procedure that such convicted persons should apply to this Court for special leave under Article 136 of the Constitution and be not granted a certificate by the High Court under Article 134(1)(c) as such certificate should not be granted when on the merits alone a certificate would not have been granted by the High Court. A certificate should not be granted merely because another co-accused has a right of appeal to this Court or has been granted special leave to appeal to this Court. We therefore hold that the certificate granted by the High Court is defective and, in the circumstances of this case, grant special leave to the co-accused to appeal to this Court. 4. The prosecution case in brief is that Har Sewak and Shayam Lal, father of Siya Ram, brothers, partitioned their common house in Village Paratapibehar, within the police circle of Dhaurahra, a few years before the incident which took place on the night between May 11-12, 1961. A partition wall divided the common compound. Shyamlal's house was on the north and Har Sewak's on the south. For certain reasons, Har Sewak had enmity with Siya Ram. Kunjan Singh is said to be a friend of Siya Ram. A partition wall divided the common compound. Shyamlal's house was on the north and Har Sewak's on the south. For certain reasons, Har Sewak had enmity with Siya Ram. Kunjan Singh is said to be a friend of Siya Ram. It is alleged that Kunjan Singh and the other appellants who are his associates, presumably, at the instance of Siya Ram, took part in this incident and committed the various offences. Siya Ram and one Thakur were also prosecuted in connection with the incident, but were discharged by the committing Magistrate of want of evidence. 5. On the night of May 11, Har Sewak, his wife Ram Piari and younger son Raja Ram were sleeping in a thatched verandah of the house which face east. Daya Ram and his wife were sleeping inside the room which had a door on the north, opening into this verandah. Adjoining to the west of that room is another room and adjoining the verandah on the west is also a room. These three rooms are inter-connected. Adjoining the room in which Daya Ram slept and to its east, but without any communicating door, is the barotha which has door on the south and also on the north. The northern door opens to the courtyard and the southern door opens on a chabutra or platform beside which runs the public thoroughfare. On the east of the courtyard and this barotha is another long barotha which has a door on the east opening on another thoroughfare running north-south and has also a door opening towards the courtyard i.e. a door on the west. 6. The prosecution case is that Ram Piari happened to wake up first and drew the attention of her husband to the fact that there appeared to be some persons on the partition wall. Har Sewak flashed his torch and noticed the persons on the wall and so did Raja Ram and Ram Piari. They then tried to go to the barotha on the south of the house and were hit by gunshots. Har Sewak fell down in the barotha. Four persons viz. the accused appellants, jumped into the courtyard. Kunjan Singh held a gun and the other three had pistols. Lalji remained near Ram Piari and Raja Ram in the courtyard and kept on threatening them with a pistol. These two persons were also beaten with fists and sticks by the accused. Har Sewak fell down in the barotha. Four persons viz. the accused appellants, jumped into the courtyard. Kunjan Singh held a gun and the other three had pistols. Lalji remained near Ram Piari and Raja Ram in the courtyard and kept on threatening them with a pistol. These two persons were also beaten with fists and sticks by the accused. 7. Daya Ram and his wife went to the rooms on the west. The accused found the door of the room opening on the verandah chained from inside. They broke open the chain and dragged Daya Ram to the courtyard. When Kunjan Singh aimed a shot at him, Daya Ram happened to run towards the room on the south of the verandah and in which he had been sleeping that night. Before he could close the door of that room and when he was in the process of closing it, Kunjan Singh fired at him. Daya Ram fell down inside the room. Kunjan Singh entered the room and fired a second time at Daya Ram. Thereafter, the four accused left the house via the barotha on the south of the house. 8. On coming out of the house, one blank shot was fired. Some neighbours, including Badri, Brij Lal, Dhondhey, happened to collect near the Pakaria tree and a thatched shed on the south of the house. The distance between the tree and the shed is about 10 paces. They happened to see the accused go out of the house, cross the chabutra southwards and then go eastwards in the light of the torches which were flashed by them, and of a lantern which was hanging at the northwest corner of the shed. After the departure of the accused these persons went inside the house, found Har Sewak and Daya Ram lying dead in the barotha and the room respectively and Raja Ram and Ram Piari injured. Raja Ram wrote out a report and sent it to the police station through Matadin, father of the chowkidar who happened to be ill at the time. The report reached the thana at 7 a.m. on May 12, 1961. 9. Station Officer Rana proceeded to the spot, examined the dead bodies, held inquests and sent the corpses and the injured persons to the hospital. The report reached the thana at 7 a.m. on May 12, 1961. 9. Station Officer Rana proceeded to the spot, examined the dead bodies, held inquests and sent the corpses and the injured persons to the hospital. He found three shots and nine wads inside the house and also took into possession the torch of Har Sewak and the two lanterns, one hanging from the beam on which the thatch of the varandah rested and the other which was hanging from the corner of the shed outside the house. 10. As a result of the investigation, the four appellants were sent up for trial with the result previously stated. 11. The case against the appellants rests on the testimony of Ram Piari, Raja Ram, the two inmates of the house who were injured in the incident and on the statements of Badri Vishal, Bhajan, Dhondhey, Brij Lal, Kedari, Madho and Daya Ram. The trial court did not consider these witnesses reliable for various reasons. The High Court has gone into great detail in examining the validity of each reason given by the learned Sessions Judge for considering the testimony of these witnesses unreliable and after full consideration of what could be said in support of those reasons, came to the conclusion that most of those reasons were fanciful and unjustified. We were taken through the entire record by Mr Mulla, the learned counsel for the appellants. We have considered the various criticism he urged against the witnesses and the way the High Court approached their testimony. We are of opinion that the High Court has very effectively and fully dealt with the reasons given by the Sessions Judge for discarding the testimony of these witnesses and that the approach of the High Court in the appreciation of the evidence has been very correct. We are in fully agreement with the reasons given by the High Court for accepting the testimony of the two injured persons and of the persons who happened to collect near the house and see the assailants when they left the house. We do not consider it necessary to discuss the testimony of the witnesses as it had been very fully dealt with by the High Court both when it, in the first instance, dealt with the reasons given by the learned Sessions Judge for not relying on that evidence and itself considered the evidence afresh. 12. We do not consider it necessary to discuss the testimony of the witnesses as it had been very fully dealt with by the High Court both when it, in the first instance, dealt with the reasons given by the learned Sessions Judge for not relying on that evidence and itself considered the evidence afresh. 12. The main piece of evidence which, according, to, the defence, affects adversely the testimony of Raja Ram and Ram Piyari, the witnesses who were injured in the incident and undisputedly had good opportunity to see the assailants is the medical evidence. It is urged that the injuries on the two deceased persons and the two injured persons do not fit in with the version given by Ram Piari and Raja Ram. We would like to discuss the criticism in this respect, as some of it does not appear to have been raised in the courts below. 13. Har Sewak, Raja Ram and Ram Piyari, got gunshot injuries due to one firing of the gun and which took place when they were going from the thatched varandah to the barotha on the south. There is nothing on the record to indicate precisely the place where these persons actually were when they received the shot. It can however be presumed that in their attempt to go to the barotha on the south, they would like to proceed as much southwards inside the varandah as possible and then turn eastwards to reach the barotha as this will mean the least exposure to the persons on the wall. When leaving the verandah and proceeding towards the barotha, these persons would have their left sides towards the partition wall over which the culprits were. In coming out of the verandah, they are expected to stoop, as the height of the front part of the thatch is usually lower than a person's height. We have to keep these considerations in mind in determining whether the injuries observed on these persons could be due to a single shot fired from the partition wall on the north. It is urged for the appellant that the injuries could not be due to one shot for two reasons. We have to keep these considerations in mind in determining whether the injuries observed on these persons could be due to a single shot fired from the partition wall on the north. It is urged for the appellant that the injuries could not be due to one shot for two reasons. One is that the location of the injuries on these three persons indicates that the spread of the pellets must have had a diameter of at least 5 feet and that this is not possible within a distance of a few yards which is the length of the courtyard. There is no expert evidence in this connection on the record. The doctor was not questioned about it. No ballistic expert has been examined. It however appears that the suggestion that the spread of the pellets, must have had a diameter of about 5 feet is on account of the fact that Har Sewak received a gun shot wound on the front of the left side of the head, Ram Pairi on the left side of the, head 3" above the left brow and Raja Ram received a gunshot wound on the mid dorsum of the left foot and also on the supposition that the three persons must have been proceeding in a sort of single file and in erect position. There is no justification for the supposition about their posture at the time they received the shots. 14. Dr Chawla has deposed that it was possible that the nine gunshot injuries on the person of Har Sewak could be caused by one fire provided the victim was standing in an oblique position and his neck was also projected a bit oblique. Such a position could be visualised at the moment when Har Sewak was on the point of emerging from underneath the thatch over the varandah on to the courtyard. In stopping, usually the neck would get projected forward. If Har Sewak received the shots when on the point of emerging from the verandah, the other two would have received the shot at about the same stage of their movements and therefore the distance between the head and the foot would be appreciably lower than it would be when a person be in an erect position. If Har Sewak received the shots when on the point of emerging from the verandah, the other two would have received the shot at about the same stage of their movements and therefore the distance between the head and the foot would be appreciably lower than it would be when a person be in an erect position. If the shots hit these persons in such a position, when all the injuries on the left side of three injured persons could be due to one gunfire as deposed by Ram Piari and Raja Ram. There is no reason why they should not depose to there being more gun fires than one if it had been so factually. 15. Har Sewak had also 4 gun shot wounds in an area of 5" x 2" over the front of right chest upper part, each measuring ?" x ?" x muscle to ?" x ?" x cavity. It may appear apparently that the gun fire from the left side would not be responsible for these gunshot wounds, but this can be said for a certainity only if it can be said that Har Sewak's body was absolutely in the direct line of the gun fire. This, however, is not possible to hold definitely. In fact, when crossing from the verandah to the barotha, they would be walking to some extent obliquely to the east and west line i.e. obliquely to the wall from which the firing took place, and, if so, we do not consider it impossible that a few pellets of the shots fired from the left side hits Har Sewak on the front of the right chest. We repeat that we see no reason why Ram Piari and Raja Ram should not have deposed to another shot fired and which hit Har Sewak if it was really a fact. Har Sewak can have any position at the time when he was hit. Of course, the position was mostly a position which offered the left side to the persons firing the gun. We therefore do not consider that the medical evidence about the injuries on Har Sewak, Ram Piari and Raja Ram is such as to belie the statements of Raja Ram and Ram Piari that they all received injuries from one gunshot fire, from the left side. 16. We therefore do not consider that the medical evidence about the injuries on Har Sewak, Ram Piari and Raja Ram is such as to belie the statements of Raja Ram and Ram Piari that they all received injuries from one gunshot fire, from the left side. 16. Daya Ram was fired at twice, once when he was just on the point of closing the door and a second time after he had fallen down. The High Court seems to have considered the second shot to be fired when Daya Ram was in a standing position as it had visualised the possibility of his having got up after the fall on receiving the first shot, running, and then receiving their second shot and then falling down again. It is not clear why such a supposition is necessary to explain the injuries on Daya Ram. Daya Ram had one gunshot wound of entrance behind the upper part of the left ear and the corresponding exit wound was over the right side head 3" above the right ear. The second gunshot wound of entry was on the left arm over the front and outer side of mid one-third of the left arm. Its wound of exit was over the back and inner side of the left arm lower one-third. The direction of this wound is from up, downwards. The third wound of entry was over the left side chest. The injury on the left side of the chest could well be due to the gunshot fired when Daya Ram was entering the room and closing the door. His getting the shot on the left side, depended on the portion of the door which happened to be open and through which the shot travelled. The entry wound and the track on the arm showed that the shot was fired from a higher level to that of the room and therefore could have been due to the shot fired inside the room after Daya Ram had fallen. The wound on the head indicates that the shot travelled from just behind the upper part of the left ear towards the right and in an upward direction, if the position of the head be taken to be the normal position of a person when standing. The wound on the head indicates that the shot travelled from just behind the upper part of the left ear towards the right and in an upward direction, if the position of the head be taken to be the normal position of a person when standing. If Daya Ram had been standing when he received this shot that would mean that the shot was fired from a much lower level than the level of the head of Daya Ram. There seems to be no reason why Kunjan Singh should deliberately stoop low or crouch in order to fire at Daya Ram. There is also no reason why Daya Ram should be in an erect position after he had already received gunshot wound due to the first firing when he was entering the room. The probability, to our mind, is that he was lying on the ground when this shot was fired. The question then is whether it is impossible that such a wound be due to a firing from a gun fired or aimed from a higher level to a lower level. If it is possible, then both this wound and the wound on the arm could be due, to one firing. The statements of the two witnesses Ram Piari and Raja Ram are only about a second gunshot fire having taken place when Kunjan Singh was inside the room. They did not see from where he fired or in which position he or Daya Ram was. This wound may not be possible if Daya Ram was laying with his head facing upwards, but is possible if he was lying with his right side of the head towards the floor and the left side of the head uppermost. In this case also we see no reason why the witnesses should not speak to the actual number of fired shots if there were more than two firings at Daya Ram and there could be no reason for committing an error in the number of actual gun fires. It is the only speculative, especially with respect to the second firing on Daya Ram as to what was the relative position of Daya Ram and Kunjan Singh at the time. Suffice it to say that we do not consider it impossible that the injuries on Daya Ram could not be due to gun fires by Kunjan Singh, as deposed to by the witnesses. Suffice it to say that we do not consider it impossible that the injuries on Daya Ram could not be due to gun fires by Kunjan Singh, as deposed to by the witnesses. 17. Lastly, we may refer to one other aspect of the case. The defence suggested and the Sessions Judge was inclined to consider it possible or even probable that the incident in which Har Sewak and Daya Ram were killed was not an incident of persons intending to commit murders, but was one of dacoity during the commission of which these persons and others received the injuries. The High Court has fully dealt with the question and come to the conclusion that it was not a case of dacoity. Learned counsel for the appellants did not press this line of defence before us. We agree with the High Court that a case of dacoity cannot be made out merely on the estimate of time during which the incident continued, being two hours. There is no positive evidence about the commission of the dacoity, the two defence witnesses being rightly rejected with respect to their statements tending to show that the incident was of dacoity and not of pre-planned murder. 18. We are of opinion that the High Court was justified in coming to the conclusion which it did and in reversing the order of acquittal by the Sessions Judge. The appeals are accordingly dismissed.