R. K. SHUKIA, J. ( 1 ) THIS appeal by the State of Uttar Pradesh under section 378 Criminal Procedure Code is directed against the judgment and order of acquittal dated 24/8/1976 of the lind Additional sessions Judge, Shahjabanpur. The learned Sessions Judge acquitted all the seven accused-respondents of charges under sections 302/149, 324/149, 148 and 147 of the Indian Penal Code. ( 2 ) ALL the accused-respondents are Thakurs by caste and closely related to each other. Sikdar singh complainant injured is a Kachhwaha by caste. Both the parties were residents of village doshpur Nagra, Police Station Mirzapur District Shahjahanpur. ( 3 ) THERE was old enmity between the parties. Narpat father of Sikdar Singh complainant was murdered in the year 1938 and in that case Puttu Singh, Pratap Singh, Natthu Singh and Bachan Singh were sentenced to imprisonment for life. These persons were relations of Gajraj brother of Kalyan Singh, accused-respondent. Since then the relations between the families of the two sides were strained. Smt. Prem Wati and Mithoo of village Doshpur Nagra had a joint Khata. Mithoo was disputing the claim of Smt. Prem Wati to 1/2 share in the joint Khata. Smt. Prem Wati sold her half share consisting of 16-bighas to Sikdar Singh, complainant in the year 1967. Mutation application of Sikdar Singh was allowed in the year 1972 despite Mithoos objection. This annoyed Mithoo and lie mortgaged his 16-bigha share to Kalyan Singh accused-respondent, simply to harass Sikdar Singh complainant. The prosecution case is that Kalyan Singh and his family members occasionally damaged th6 crop of the fields purchased by Sikdar Singh. This led to proceedings under section 145, Criminal Procedure Code and the land purchased by Sikdar Singh was attached. Jai Singh (PW-3) and Jagannath Singh were appointed Supurdars of the crop consisting of wheat and pea. On 8-3-74 at about 10 a. m. Sikdar Singh complainant was returning from village Papar and in the Rasta noticed that Prem Pal and Brij Pal accused-respondents were uprooting the wheat and pea crop of his attached field. Sikdar Singh complained about this to Jai Singh (PW-3) who immediately went to the field followed by Sikdar Singh. Jai Singh reprimanded Brij Pal and Prem Pal accused and at this the latter said that Sikdar Singh poses himself to be the owner of the field and they would kill him that very day. Sikdar Singh complained about this to Jai Singh (PW-3) who immediately went to the field followed by Sikdar Singh. Jai Singh reprimanded Brij Pal and Prem Pal accused and at this the latter said that Sikdar Singh poses himself to be the owner of the field and they would kill him that very day. ( 4 ) THE same day i. e. on 8-3-74 at about 4 p. m. Sikdar Singh was sitting on the Chabutra of the Chaupal of Rameshwar (PW-4 ). Chheda and Rameshwar were also present there. Gokaran and Ram Lal real brothers and Shiv Raj son of Sikdar Singh and Sri Pal son of Gokaran were also standing in front of their houses which were close by. At that time Vijai Singh Thakur of the village came to the Chaupal and asked Sikdar Singh to come and make offerings of Akshat (rice) in the Holika fire as it was Holi festival day. Sikdar Singh declined on account of fear because the place of Holika fire was in front of the house of Kalyan Singh accused. Shortly afterwards Kalyan Singh and his brother Deep Singh armed with lathies, Prem Pal armed with a gun and Brij Pal, Shyam Pal, Ram Pal and Shiv Mangal Singh armed with country-made pistols came from the south. Kalyan singh and Deep Singh accused pointed towards Sikdar Singh and his family members and exhorted that they should be killed. Hearing this, Prem Pal fired from his gun which hit Sri Pal son of Gokaran who fell down. The Of her accused persons who were armed with country-made pistols fired at Sikdar Singh and other members of his family from the east of the Chaupal of Rameshwar causing gun shot injuries to Sikdar Singh, Ram Lal, Gokaran and Shiv Raj. This occurrence was seen by Rameshwar, Chheda, Mulaim and Raghunath. When the witnesses remonstrated the seven assailants ran away towards the south. ( 5 ) SIKDAR Singh arranged two Lehrus in order to carry the injured persons to police station Mirzapur. At that time one Ram Nath of the same village informed him that the accused persons were lying in ambush on the way to Mirzapur. Sikdar Singh then decided to proceed to Police Station Jalalabad which was about seven miles away. In the rasta there was crossing of river at Garhia Ghat. At that time one Ram Nath of the same village informed him that the accused persons were lying in ambush on the way to Mirzapur. Sikdar Singh then decided to proceed to Police Station Jalalabad which was about seven miles away. In the rasta there was crossing of river at Garhia Ghat. When the party reached Garhia Ghat Sri Pal succumbed to his injuries. Sikdar Singh took the deceased and the injured to police station Jalalabad and lodged an oral report at the police station on 9-3-74 at 6. 30 a m. Constable Ram Pratap Singh (PW- 10) prepared the check-report and made entry in the General Diary. He forwarded the papers to police station Mirzapur as the case related to the jurisdiction of that police station. The papers were received at police station Mirzapur, the same day at 9. 37 a. m. Investigation of the case was taken up by Sri. C. B. Singh (P. W. 9) Station Officer, Police Station Mirzapur. The injuries of the four injured persons namely, Sikdar Singh, complainant (PW-l), Ram Lal (PW-2), Gokaran and Shiv Raj were examined by the Medical Officer Incharge, Civil Dispensary, Jalalabad on 9-3. 74 between 5 p. m. and 6 p. m. The injury reports are Exs. Ka-14 to Ka-17. The genuineness of these injury reports was admitted on behalf of the accused. The doctor found eight fire arm injuries on the person of Sikdar Singh, two multiple fire-arm-injuries on the person of Gokaran, seven fire-arm injuries and one multiple firearm-injury on the person of Ram Lal and five fire-arm-injuries on the person of Shiv Raj. The doctor estimated the duration of these injuries at about one day. ( 6 ) THE post-mortem examination on the body of Sri Pal deceased was performed by Dr. Pratap narain (PW-6) at Shahjahanpur on 10. 3. 74 at 10. 30 a m. The post mortem examination report is ex. Ka-2. The doctor found twenty one ante-mortem external injuries which were as under: (1) One gun-shot-wound of entry. 2 cm. x. 2 cm. x skin deep on the left chest, 5 cm. above the left nipple, at 11 Oclock position, margins inverted. (2) Two gun-shot wounds of entry with inverted margins. 2 cm. x. 2 cm. x skin deep on the left side of upper and outer side of chest, 6 cm. below the top of left shoulder, each 1. 5 cm. apart. x skin deep on the left chest, 5 cm. above the left nipple, at 11 Oclock position, margins inverted. (2) Two gun-shot wounds of entry with inverted margins. 2 cm. x. 2 cm. x skin deep on the left side of upper and outer side of chest, 6 cm. below the top of left shoulder, each 1. 5 cm. apart. (3) One gun-shot-wound of entry with inverted margins. 25 cm. x. 25 cm. x skin deep on left side root of neck, 1 cm. above the clavicular join. (4) One gun-shot wound of entry with inverted margins,. 25 cm. x. 25 cm. x skin deep front of neck in the middle. (5) Two gun-shot-wounds of entry with inverted margins. 25 cm. x. 25 cm. x muscle deep on the right front of shoulder 2. 5 cm. apart from each other, two small shots recovered. (6) One gun-shot wound of entry with inverted margins,. 25 cm. x. 25 cm. x skin deep over the front of left upper arm 8 cm. below the top of left shoulder. (7) One gun-shot wound of entry. 25 cm. x. 25 cm. x skin deep just below the middle of right lower jaw. (8) One gun-shot wound of entry with inverted margins. 25 cm. x. 25 cm. x on the middle of right cheek. (9) One gun-shot wound of entry with inverted margins on the fight side of face 1. 5 cm. below the right eye, one small shot recovered from the wound,. 25 cm. x. 25 cm. x muscle deep. (10) One gun-shot wound of entry with inverted margins. 25 cm. x. 25 cm. x muscle deep, 1. 5 cm. lateral to the right eye, one small shot recovered from the muscle. (11) Two abrasions each. 5 cm. x. 3 cm. on the top and back of right ear,. 25 cm. apart from each other. (12) Two gun shot wounds of entry with inverted margins,. 25 cm. x. 25 cm. x skin deep, just on the right brow, 2 cm. apart. (13) Three gun-shot wounds, of entry, inverted margins,. 25 cm. x. 25 cm. x brain deep on the right forehead, 2 cm. below the hair line, three small shots recovered from the brain. (14) One gun-shot wound of entry. 25 cm. x. 25 cm. x brain deep, on the left forehead, 2. 5 cm. apart. (13) Three gun-shot wounds, of entry, inverted margins,. 25 cm. x. 25 cm. x brain deep on the right forehead, 2 cm. below the hair line, three small shots recovered from the brain. (14) One gun-shot wound of entry. 25 cm. x. 25 cm. x brain deep, on the left forehead, 2. 5 cm. above the left brow, one small shot recovered from brain. (15) Contused area 4 cm. x 2 cm. around the right eye. ( 7 ) THE above injuries show that the gunshot-injuries were on the left side chest, left and right shoulders, front of neck, face and forehead. Internal examination revealed fracture of frontal bone under injuries Nos. 13 and 14. Membranes and brain were lacerated. Stomach was empty and both intestines had faecal matter. In the opinion of the doctor, death was due to coma, shock and haemorrhage, as a result of gun-shot injuries which were caused by fire-arm. ( 8 ) THE Investigating Officer reached the scene of occurrence on 9. 3. 74 and prepared site plan (ex. Ka. 10) He found three empty cartridges and one Tikli at point D 1 to the east of the Chaupal of Rameshwar) and some pellets embodded in a him tree near the Chaupal. He also found some pellets embedded in the southern face of the northern wall of Rameshwars Chaupal. He found blood on the Chabutara of the house of Rameshwar at point C. He recorded statements of witnesses. After completing the investigation, the police submitted charge sheet against seven accused persons on 4. 7. 74. ( 9 ) AT the trial prosecution examined in all ten witnesses in support of its case Of these, three namely, Sikdar Singh (P. W. 1), Ram Lal (P. W.-2) and Rameshwar (P. W.-4) were eye witnesses of the occurrence. Jai Singh (P. W.-3) was examined in connection with the motive. The remaining witnesses included the Doctor who performed the post-mortem examination and the Investigating Officer. ( 10 ) THE accused denied participation in the incident and alleged false implication on account of enmity. They disputed the fact that offerings of Akshat were made in day time. They examined ganga Charan, Priest (D. W.-1) who had performed Puja before the lighting of Holika fire at about 1. 15 a. m. in the night between 7th and 8th March 1974. They also relied on some papers exs. Kha1 to Kha. They disputed the fact that offerings of Akshat were made in day time. They examined ganga Charan, Priest (D. W.-1) who had performed Puja before the lighting of Holika fire at about 1. 15 a. m. in the night between 7th and 8th March 1974. They also relied on some papers exs. Kha1 to Kha. 9. ( 11 ) THE learned Sessions Judge held that the accused had no remote motive and also no immediate motive for commission of the crime. The evidence given by the prosecution regarding the immediate motive was not worthy of reliance. He took the view that there was no question of offering Akshat in Holika fire at 4 p. m. on 8. 3. 74 and the prosecution story in this respect was not reliable. He further held that the three eye witnesses were highly interested. The account and the manner of Occurrence given by the witnesses was not worthy of reliance and it indicated that the occurrence had taken place at night when the witnesses could not see the assailants and also as to how the occurrence had in fact, taken place. The place of the occurrence given by the witnesses was not supported by the situation of the spot, there was no explanation as to how blood had fallen at point TCT shown in the site-plan. The medical evidence also failed to corroborate the prosecution version. For all these reasons, the learned Sessions Judge did not find the prosecution case worthy of reliance. He gave benefit of reasonable doubt to the accused and acquitted them. ( 12 ) THE State has not felt satisfied and hence this Government Appeal. ( 13 ) KALYAN Singh accused-respondent no. 1 died during the pendency of this appeal and, therefore, the appeal has abated against him. ( 14 ) THE learned Deputy Government Advocate has assailed the findings and the order of acquittal of the learned Sessions Judge. He has urged that the circumstances, discrepancies and improbabilities relied upon by the learned Sessions Judge in order to discard the prosecution case and the evidence of the witnesses, were not well founded and were based on erroneous appreciation of evidence and circumstances of the case and on conjectures. The findings of the learned Sessions Judge could not be considered reasonable. The findings of the learned Sessions Judge could not be considered reasonable. We have carefully considered these submissions and have examined the whole evidence on the record and we are inclined to agree with the learned Deputy Government Advocate. ( 15 ) THE finding of the learned Sessions Judge on the question of motive is against the weight of evidence and is based on an erroneous appreciation of the material on the record. The view of the learned Sessions Judge that the murder of the father of Sikdar in the year B38 could not be a motive for the commission of the crime in question may be accepted. However, his view that the other motive alleged by the prosecution was not worthy of acceptance is erroneous. The prosecution case was that Smt. Premwati and Mithoo were joint tenure-holders of 32 big has of agricultural land. Smt. Premwati sold her half share in the land to Sikdar Singh complainant in the year 1967. Mithoo raised an objection in mutation proceedings but the same was not successful. Thereafter Mithoo handed over possession of his half share to Kalyan Singh accused and the latter started harassing Sikdar Singh and damaging his crop. This led to proceedings under section 145 Criminal Procedure Code and attachment of the land which had been transfered to Sikdarlai Singh (P. W.-3) was supurdar of that land. Most of these facts were not in dispute. The learned Sessions Judge was greatly impressed by the copy of the order dated 31. 5. 1976 (ex. Kha.-7) which showed that the Consolidation Officer bad directed expunction of the names of Smt. Premwati and Sikdar Singh from the revenue records. He observed that Smt. Premwati bad no right to transfer half share of the holding to Sikdar in the year 1967. The learned Judge was wrong in making this approach. For purposes of the case in hand, it was not at all necessary to determine the civil rights of the parties in the land in dispute. What was important to note was that there was dispute between the parties over the land which Smt. Premwati was claiming as her own. That dispute bad given rise to proceedings under section 145, Criminal Procedure Code. In those proceedings the land bad been attached and given in the Supurdagi of Jai Singh (P. W. 3 ). Jai Singh stated that in the morning of 8. 3. That dispute bad given rise to proceedings under section 145, Criminal Procedure Code. In those proceedings the land bad been attached and given in the Supurdagi of Jai Singh (P. W. 3 ). Jai Singh stated that in the morning of 8. 3. 1974, Brij Pal and Prem Pal bad damaged the same crop and when Sikdar Singh bad protested, they bad threatened to kill him that very day. The learned Sessions Judge did not believe this story because neither Jai Singh, nor Sikdar mentioned this threat to anyone in the village that day. He also emphasised the fact that Jai Singh did not inform the court about the damage done to the crop and also did not lodge a report at the police station about it. Jai Singh could not have taken these steps on 8th March, 1978 as it was Holi festival day. It may be that after the murder of Shripal he felt afraid and did not think it safe to agitate the matter. Jai Singh asserted that a few days before the occurrence, crop was damaged by some accused and be bad lodged a report at the police station about it. Jai Singh was not shaken in cross-examination and his statement deserved credence. Thus, the motive including the immediate motive for the occurrence, was proved by the prosecution by the evidence of Jai Singh and Sikdar Singh. This evidence was rejected on insufficient grounds. The finding of the learned Sessions Judge on this point is wholly erroneous. ( 16 ) THE finding of the learned Sessions Judge that on 8-3-1974 at about 4 p. m. there was no occasion for making offerings of Akshat in the Holika fire and, therefore, the prosecution story was false, is wholly erroneous. There was no hard and fast rule that Akshat must be offered in Holika fire at the time it was lighted. The offering could be done even afterwards. Sikdar Singh (P. W. 1) stated in paragraphs 56 to 59 of his statement that it was not the custom in his village that Akshat was thrown in Holika fire as soon as it was lighted. According to him the wood in the Holika fire remained burning afterwards, and people could throw Akshat in day time also. He denied the defence suggestion that Akshat was not thrown in day time. According to him the wood in the Holika fire remained burning afterwards, and people could throw Akshat in day time also. He denied the defence suggestion that Akshat was not thrown in day time. Ganga Charan (D. W. 1) also admitted in paragraph 4 of his statement that Akshatt jab rak aag rahti hai, tab tak parta hai. He, however, qualified it by saying that Akshat were not offered after day break. The time when fire was to be set to Holika was to be kept distinct and apart from the period during which Akshat could be offered in the fire. The circumstance that on 8-3-1974 relatives had started visiting Sikdar and others was not at all relevant. Sikdar Singh and others bad not gone to the Holika fire to offer Akshat at night on account of fear because the place of fire was in front of the house of Kalyan Singh accused. The visit of Vijai Singh to Slkdar Singh and others at about 4 p. m. inviting them to go to offer Akshat in the Holika fire was not dependent on the fact that it was still time to offer Akshat. It could be a clever device to take Sikdar and others near the house of Kalyan Singh accused. In these circumstances, it could not be said that the story given out by the prosecution was false. ( 17 ) THE principles of evaluation of the evidence of prosecution witnesses who are related to the complainant or the victim or who had some enmity with the accused, have been enunciated by the Supreme Court in the decision Sher Singh and others v. The State of Uttar, Pradesh in the following words This is an enquiry of value upto a point but is not conclusive because there is no crime proved in small village communities where some kind of relationship cannot be established between witnesses and the victim and some petty quarrel shown to have taken place in the past between some of the witnesses and the accused. To decide a case on the basis of such circumstances, unless, they are of great or significant magnitude is to place reliance on collateral circumstances at the expense of direct evidence of guilt which really matters. The first serves as a check upon the latter but no more. To decide a case on the basis of such circumstances, unless, they are of great or significant magnitude is to place reliance on collateral circumstances at the expense of direct evidence of guilt which really matters. The first serves as a check upon the latter but no more. ( 18 ) THE learned Session Judge wrongly discarded the evidence of two injured eye witnesses namely. Sikdar Singh (P. W. 1) and Ram Lal (P. W. 2) whose presence at the time of occurrence could not be doubted. He rejected the testimony of Sikdar Singh (P. W. 1) and Rameshwar (P. W. 4) on account of their involvement in some criminal and civil cases in the past. Sikdar Singh was prosecuted in a case under Section 396, Indian Penal Code in the year 1961 but was acquitted. The witness candidly admitted these facts. The fact that the witness was once prosecuted for an offence under Section 396, Indian Penal Code was not enough to dub him as a person of bad antecedents. Rameshwar admitted that he was once convicted in a case for possession of opium. He also admitted that he had taken a loan of Rs. 1100/- from Kalyan Singh accused on 10-6-1973, but added that he had repaid that Joan. He expressed ignorance about any suit on the basis of that loan. These grounds were not sufficient to consider this witness as a witness of shady. character. ( 19 ) THE prosecution story was supported by the three eye witnesses namely Sikdar Singh Ram Lal and Rameshwar. There can be no doubt about the presence of these persons at the time of occurrence. The first two were injured. Rameshwa:- was a close neighbour and the occurrence had taken place when the victims were present at his Chaupal. Blood was also found on the Chabutra of his house at point C. Sikdar Singh narrated the main occurrence and supported the prosecution story. He stated that Prem Pal Singh accused bad fired from his gun and the shot hit Shripal (deceased) who fell down. At that time Prem Pal was about 10 or 11 paces south of Shri Pal. He added that except Prem Pal, who was towards the south, all the accused were towards the southeast. The shots fired by those accused hit him, Ram Pal, Gokaran and Sheoraj. At that time Prem Pal was about 10 or 11 paces south of Shri Pal. He added that except Prem Pal, who was towards the south, all the accused were towards the southeast. The shots fired by those accused hit him, Ram Pal, Gokaran and Sheoraj. On hearing noise Rameshwar and others came to the spot and saw the occurrence. Then the assailants ran away towards the south. The remaining two eye witnesses Ram Lal and Rameshwar also gave out the same account. The testimony of the three eye witnesses is consistent regarding the main points of the occurrence. Some minor contradictions occurred in their statements but that was only natural because the witnesses were deposing Ram after a lapse of over two years, and further the witnesses were illiterate persons. One contradiction may be noticed here. Sikdar Singh and Ram Lal stated before the Investigating Officer that while they were talking to Vijay Singh, the accused persons came and the occurrence took place. But at the time of trial they said that the occurrence took place a little while after the departure of Vijay Singh. In our opinion, this is not an important contradiction and deserves to be ignored. ( 20 ) THE learned Sessions Judge did not believe Sikdar Singh because in his opinion the place of presence of Sri Pal was not the same as was given out by this witness. Sikdar Singh stated that Shripal was 11 steps to the north of Prempal accused, on the Chabutra of Rameshwar. The site plan showed that there were two Chabutra of Rameshwar. One Chabutra was adjacent to his house and the Investigating Officer found blood on that Chabutra and marked it by letter c. The other Chabutra was in front of his Chaupal. There was a narrow lane in between the two Chabutras. The place of Shripal (deceased) was shown by letter TA on the Chabutra of the Chaupal. The learned Sessions Judge reasoned that since no blood was found at place A the statement of Sikdur that Sripal was present on that Chabutra was not correct. Rameshwar bad said that Shri Pal was present on the Chabutra on his Chaupal and after sustaining injuries he fell towards the west below the Chabutra into the lane. The learned Sessions Judge reasoned that since no blood was found at place A the statement of Sikdur that Sripal was present on that Chabutra was not correct. Rameshwar bad said that Shri Pal was present on the Chabutra on his Chaupal and after sustaining injuries he fell towards the west below the Chabutra into the lane. The learned Sessions Judge observed that no blood was found by the Investigating Officer in the lane and the presence of blood at point c on the other Chabutra remained unexplained. In our opinion, the presence of blood on the other Chabutra at place c is not inconsistent with the statement of these witnesses that Shripal was originally present on the Chabutra of the Chaupal at point A. The lane in between the two Chabutras was a narrow one. The Chabutra of the Chaupal was only one span high. The height of the other Chabutra has not come in evidence. It may be that while falling from the Chabutra of the Chaupal a part of the body of Shri Pal went across the lane and rested on the other Chabutra and thus, blood fell there. Injuries were caused on the upper part of the body of Shripal and if his head had fallen on that Chabutra, blood could be found at point C. While appreciating the evidence the learned Sessions Judge overlooked these important circumstances and took a very narrow and literal view of the evidence. In our opinion, the eye witnesses could not be considered unreliable on this point. ( 21 ) SIKDAR Singh stated that other accused were at a distance of one or two lathies from Prem Pal. He added that the other accused were towards the south east of Prem Pal. In the site plan the Investigating Officer showed the place of Prem Pal accused at point No 1, which was fifteen paces south of point A. He showed the place of presence of other accused by point No. 2 and this place was to the east of the Chabutra of the Chaupal of Rameshwar at a distance of 20 paces from point AT. The Investigating Officer found empty cartridges lying at point 2. He found pellet marks on a neem tree which was standing near the Chabutra of Rameshwars Chaut: pal and also on the southern face of the northern wall of the Chaupal. The Investigating Officer found empty cartridges lying at point 2. He found pellet marks on a neem tree which was standing near the Chabutra of Rameshwars Chaut: pal and also on the southern face of the northern wall of the Chaupal. The learned Sessions Judge observed that all this material indicated that some of the accused who fired from their fire arms were to the east of the Chabuha of Rameshwar. He added that this did not fit in with. the description of Sikdar who stated that the other accused were towards the south-east of Prem Pal. This criticism is based on a very literal reading of the statement of Sikdar. To us it appears that Sikdar could not describe the location of the other accused in a precise manner. It is significant that he indicated the direction of those accused as being to the east of Prem Pal. In our view this ground for rejecting the testimony of Sikdar w\as also not well founded. ( 22 ) THE learned Sessions Judge observed that the conduct of the victims was not natural. If they (victim) had been threatened in the morning, they would have taken precaution and rushed inside their houses as soon as the accused were visible to them. This criticism is not justified. It may be that Sikdar and others did not get time to save themselves. No explanation was sought from the victims as to why they could not rush to safety on seeing the accused. ( 23 ) THE testimony of Rameshwar has also been doubted on the ground that he did not sustain any injury. This witness stated that he was present at the Chabutra. He was not asked as to why he escaped unhurt if he was present at the Chabutra. The witness might have been in a position to explain this. Merely because this witness did not sustain any gunshot injury, it will not be reasonable to hold that he was not present at the scene. His presence at his own Chaupal at that time was only natural. ( 24 ) IN our opinion, the grounds on which the learned Sessions Judge found the testimony of the three eye witnesses unworthy of reliance are not well founded. The statements of these witnesses were consistent with regard to the essentials of the occurrence. His presence at his own Chaupal at that time was only natural. ( 24 ) IN our opinion, the grounds on which the learned Sessions Judge found the testimony of the three eye witnesses unworthy of reliance are not well founded. The statements of these witnesses were consistent with regard to the essentials of the occurrence. ( 25 ) THE evidence of the three eye witnesses finds full corroboration from the medical evidence on the record. In all 21 ante-mortem injuries were found on the dead body of 8hri Pal. Of these, 18 were gun shot wounds, two were abrasions and one was a contusion. The gun-shot injuries were on the left side of chest, left and right shoulders, front of neck and face and on the forehead. The post-mortem examination report shows that all the gun shot wounds were of the size of. 25 cms. x. 25 cms. except two gun-shot wounds one on the left chest and other on left shoulder, which were. 2 cm. x. 2 cm x skin deep. The spread of these gun-shots was within an area of about 12 x 12. This dispersion could take place if the firearm was fired from a distance of about 15 paces. The scattering of shots depends upon the size of the gun, the charge of the powder and the distance of the gun from the body. To our mind, the prosecution story that Shripal was shot at from a distance of about 10 or 11 paces, may be 15 paces as indicated by the Investigating Officer in the site plan, is consistent with the gun-shot injuries found on the person of the deceased. All the gun-shot wounds could be the result of one shot as is indicated by their uniform size. Dr. Pratap Narain (P. W. 6) stated that the injuries could be the result of one shot as well. This, the injuries found on the person of the deceased are also consistent with the prosecution story that only one shot was fired at the deceased. The view of the learned Sessions Judge that the gun-shot injuries sustained by Shri Pal deceased were received from more than cine shots is based purely on surmises. He has not analysed the data and has mechanically taken the view that all the injuries could not be caused by one shot fired from a distance of 11 steps. The view of the learned Sessions Judge that the gun-shot injuries sustained by Shri Pal deceased were received from more than cine shots is based purely on surmises. He has not analysed the data and has mechanically taken the view that all the injuries could not be caused by one shot fired from a distance of 11 steps. There is no hard and fast rule of dispersal and it depends on several factors. In this connection Mcdi has said in his Medical Jurisprudence and Toxicology, 20th Edition, page 230: the scattering of shots depends upon the size of the gun, the charge of the powder and the distance of the gun from the body. The dispersion of pellets should, however, he studied with the gun and the ammunition in question country-made hand guns with short barrels give unusually high dispersal. T ( 26 ) THE learned Sessions Judge did not doubt the date, place and factum of the occurrence, but he took the view that it had taken place at night. He observed that at night witnesses could not have seen the assailants and also could not notice who was standing where. According to him it was because of this reason that the witnesses were unable to give a consistent account of the manner of the occurrence. This view of the learned Sessions Judge is wholly arbitrary and is based on conjecture. A firing which resulted in injuries to four persons and loss of one life, could not be done in darkness. The assailants would have needed some light to make the assault and that very light would have been sufficient for the victims and witnesses to recognise the assailants and see the manner in which the occurrence had taken place. No circumstances were brought on the record which would have indicated that in all probability the occurrence had taken place at night. The estimated duration of the injuries of four persons and the estimate of probable time since death of Shripal given by the doctors are in no way inconsistent with the time of occurrence given by the prosecution. In this state of affairs the view of the learned Sessions Judge that the occurrence had taken place at night cannot be said to be a reasonable one and based on any material. ( 27 ) SIKDAR Singh and Ram Lal injured P. Ws. In this state of affairs the view of the learned Sessions Judge that the occurrence had taken place at night cannot be said to be a reasonable one and based on any material. ( 27 ) SIKDAR Singh and Ram Lal injured P. Ws. are real brothers inter-se and uncles of Sri Pal deceased. Rameshwar denied the defence suggestion that he was a distant cousin of Sikdar Singh, complainant. The defence filed extract of Khatauni of 1345 f. , (Ex. Kha-6) to show that Khurram father of Rameshwar and Narvat father of Sikdar Singh were joint Khatedars in the village. It may be that Rameshwar and Sikdar are distantly related with each other as cousins. On account of these relations, it may be said that the witnesses were not wholly disinterested and independent and that they were partisan. It is obvious that there was enmity between Sikdar Singh on the one hand and Kalyan Singh and others on the other. The statements of the three eye witnesses are not to be discarded on these grounds. The rule of prudence is that the testimony of such witnesses should be scrutinized with a little care and once that approach is made and the court is satisfied that the evidence of such witnesses bas a ring of truth, such evidence can be relied upon even without corroboration. While examining the evidence of the three witnesses we have borne in mind this rule of caution and prudence and we are satisfied that the evidence given by these witnesses has a ring of truth and it does not suffer from any in firmity which would make it unsafe to rely on it. In our opinion, the statements of the three witnesses are worthy of reliance. ( 28 ) THE evidence shows that there were two or three houses of Kachhwahas and one house of Chamar in village Deshpur Nagra and the remaining Abadi was of Thakurs. As said earlier, the accused-respondents are Thakurs by caste while the complainant is Kachhwaba by caste. In such a village one could not expect that Thakurs or Chamars would come forward td support the prosecution case even if they bad witnessed the occurrence. The prosecution cannot be blamed for producing only those witnesses who were Kachhwahas by caste. As said earlier, the presence of the three eye witnesses cannot be doubted. In such a village one could not expect that Thakurs or Chamars would come forward td support the prosecution case even if they bad witnessed the occurrence. The prosecution cannot be blamed for producing only those witnesses who were Kachhwahas by caste. As said earlier, the presence of the three eye witnesses cannot be doubted. ( 29 ) THE learned counsel for the accused respondents has contended that the assailants would not have spared Sikdar Singh, complainant because be was their (accused) main enemy. This argument is of no avail. Sikdar Singh was an injured and his presence cannot be doubted. It may be that the accused did not dare to stay at the scene of occurrence a, little longer on account of the presence of other persons and that is why they could not proceed to kill Sikdar at that time. The accused had later on lain in ambush in the rasta leading to police station Mirzapur but luckily for Sikdar he got information about it and changed his route. ( 30 ) IT has also been urged that the number of assailants might have been exaggerated by the complainant and the injuries could be caused by a lesser number of assailants than seven. We are not impressed by this argument. The evidence of the three eye witnesses is quite cogent and consistent regarding the number and names of the persons who had taken part in the assault and we see no reason to doubt that evidence. ( 31 ) STRESS has also been laid on the fact that the first information report was lodged with delay at police station Jalalabad and further, that medical examination of four injured persons was also one with delay. This contention is not well founded. Sikdar Singh must have taken some time to arrange for Lehrus to take the injured including Shripal to the police station Originally he planned to go to police station, Mirzapur but had to change his plan on learning that the accused were lying in ambush towards Mirzapur side. Police Station Jalalabad was the only other alternative before Sikdar Singh. That police station Jay at a distance of seven miles and in between a river had to be crossed at Garhia Ghat. It would have taken sufficient time to arrange a boat at night to take the two Lahrus across the river. Police Station Jalalabad was the only other alternative before Sikdar Singh. That police station Jay at a distance of seven miles and in between a river had to be crossed at Garhia Ghat. It would have taken sufficient time to arrange a boat at night to take the two Lahrus across the river. If in these circumstances Sikdar Singh could lodge report at police station Jalalabad at 6. 30 am. it could not be said that the report was delayed. The medical examination took place at primary Health Centre, Jalalabad in the evening of 8. 3. 74. Sikdar Singh was not asked as to why there was this delay. Further, the duration of injuries given by the doctor in the injury reports Ex. Ka. 14 to Ex. Ka. 17 was not challenged by the defence. The injury reports were admitted under Section 294, Criminal Procedure Code by the defence. In these circumstances no adverse inference can be drawn against the prosecution on account of the delay. The same stands fully explained. ( 32 ) ON a careful consideration of the evidence on the record and the circumstances and probabilities of the case, we are satisfied that the prosecution case is true and the evidence of the three eye witnesses is worthy of full reliance with regard to the occurrence in question. The learneg Sessions Judge lost himself in collateral circumstances which were not of great or significant magnitude and, therefore, arrived at wholly erroneous conclusions. It cannot be said that one could reasonably arrive at those conclusions on a proper appreciation of the evidence and facts and circumstances of the case. The findings of the learned Sessions Judge cannot, therefore,be upheld and deserve to be set aside. ( 33 ) THE evidence on the record goes to prove in a cogent and convincing manner that all the seven accused persons had formed an unlawful assembly with the common object of murdering Sikdar Singh and his family members and Prempal accused fired from a gun at Sri Pal, and four other accused namely Brij Pal Shyam Pal, Ram Pal and Shiv Mangal Singh fired from country-made- pistols at Sikdar Singh, Gokaran, Ram Lal and Shiv Raj Singh in prosecution of the aforesaid common object. Kalyan Singh (now deceased) and Deep Singh accused were armed with lathies and had exhorted their companions to shoot at Sikdar Singh and others and kill them. Kalyan Singh (now deceased) and Deep Singh accused were armed with lathies and had exhorted their companions to shoot at Sikdar Singh and others and kill them. As a result of injuries caused by Prem Pal to Sri Pal, the latter died. The shooting resorted to by four other accused caused injuries to Sikdar Singh, Gokaran, Ram Lal and Shiv Raj Singh. ( 34 ) PREM Pal Singh accused was charged with offences under sections 148, 302 and 324/ 149, Indian Penal Code Brij Pal, Shyam Pal Ram Pal and Shiv Mangal Singh were charged with offences under sections 148, 302{149 and 324{149 Indian Penal Code Deep Singh was charged with offences under sections 147, 302/149 and 324/149 Indian Penal Code. Kalyan Singh (now deceased) was also charged with these three offences. The offences with which accused respondents Prem Pal, Brij Pal. Shyam Pal, Ram Pal Singh, Shiv Man gal Singh and Deep Singh were charged have been fully made out against them and we convict them of those offences. ( 35 ) WE now come to the question of sentence. ( 36 ) LEARNED counsel for the respondents has drawn our attention to the fact that in their statements under section 313 Criminal Procedure Code Prem Pal Singh, Sham Pal Singh and Ram Pal Singh, accused-respondents had given out their ages as 16 years, 17 years and 19 years respectively and the learned Sessions Judge noted that the ages of Prem. Pal Singh and Shyam Pal Singh appeared to be 18 years to 20 years and age of Ram Pal Singh appeared to be 19 years on 28/7/1976. ( 37 ) IF the lower estimate of age made by the learned Sessions Judge in respect of Prem Pal Singh and Shy am Pal Singh is taken as correct, it would mean that on the date of the occurrence they were only 15 years 8 months old, that is under 16 years. The learned counsel for Prem Pal Singh accused-respondent filed a photostat copy of a report dated 25/3/1974 of the Probation Officer, Shahjahanpur showing that the age of Prem Pal Singh was mentioned as 15 years on 25/3/1974. The name of Prem Pal Singh appears at serial 3 in this report. The learned counsel for Prem Pal Singh accused-respondent filed a photostat copy of a report dated 25/3/1974 of the Probation Officer, Shahjahanpur showing that the age of Prem Pal Singh was mentioned as 15 years on 25/3/1974. The name of Prem Pal Singh appears at serial 3 in this report. Having regard to these facts we are inclined to take the view that Prem Pal Singh and Ram Pal Singh accused-respondents were below 16 years of age on the date of commission of offences and Shyam Pal Singh was over 16 years of age on that date. ( 38 ) SECTION 2 (4) of the U. P. Children Act, 1952 (briefly the Act) defines a child to mean a person under the age of 16 years. Thus, on the date of occurrence both Prem Pal Singh and Shyam Pal Singh, accused-respondents were Child within the meaning of the afore said provision. ( 39 ) SECTION 27 of the Act says Notwithstanding anything to the contrary contained in any law, no court shall sentence a child to death or transportation or imprisonment for any term ,, sub-section (1) of section 29 of the Act provides,where a child is found to have committed an offence punishable with transportation, or imprisonment, the court, if satisfied on inquiry that it is expedient so to deal with the child, may order him to be sent to an approved School for such period of stay as will not exceed beyond the time when the child will attain the age of 18 years. . . ( 40 ) IN the normal course, we would have directed that Prem Pal Singh and Shyam Pal Singh be sent to an approved School till they attained the age of 18 years, but we cannot do so because we find that now these accused persons are about 24 yean, of age. In a similar situation the Supreme Court also took the same view in the case Jayendra v. State of U. P. . Thus, the result is that no order of sentence is to be passed against these two accused persons. In a similar situation the Supreme Court also took the same view in the case Jayendra v. State of U. P. . Thus, the result is that no order of sentence is to be passed against these two accused persons. ( 41 ) SO far as the remaining four accused respondents Brij Pal Singh, Ram Pal Singh, Sheo Mangal singh and Deep Singh are concerned, we think that the ends of justice will be sufficiently met if each of them is sentenced to imprisonment for life under section 302/49 Indian Penal Code, to R. I. for two years under section 324/149 and to R I. for one year under section 147 or section 148, Indian Penal Code. ( 42 ) THE appeal has abated against Kalyan Singh accused-respondent No. 1. The appeal is allowed against accused -respondents Nos. 2 to 7. The order of acquittal of these accused persons passed by the learned Addi. Sessions Judge, Shahjahanpur is set aside. Prem Pal Singh accused- respondent is convicted of offences under sections 148, 302 and 324/149 Indian Penal Code Shyam Pal Singh, Brij Pal Singh, Ram Pal Singh and Sheo Mangal Singh, accused-respondents are convicted of offences under sections 148, 302/149 and 324/149, Indian Penal Code Deep Singh accused-respondent is convicted of offences under sections 147, 302/149 and 324/149 I. P. C. No sentence of imprisonment is being awarded to Prem Pal Singh and Shyam Pal Singh accused respondents as they are entitled to the benefit of the provisions of the U. P. Children Act, 1952. The remaining four accused-respondents Brij Pal Singh, Ram Pal Singh, Sheo Mangal Singh and Deep Singh are sentenced to undergo imprisonment for- life under section 302/149 I. P. C. to R. I. for two years under section 324/149 Indian Penal Code and to R. I. for one year under sections 148 or 147 Indian Penal Code as the case may be. All the sentences of each accused-respondent shall run concurrently. These four accused-respondents are on bail. They shall be taken into custody forthwith to serve out their sentences according to law. Order accordingly.