R. K. SHUKIA, J. ( 1 ) MOHAN Singh alias Mohan Lal, Bhagwat Singh, Sheo Sampat, Shyam Lal and Raja Ram have preferred this appeal against the Judgment and order dated 13/3/1978 passed by Shri S. Prasad IV Additional Sessions Judge, Fatehpur whereby the learned Sessions Judge has convicted and sentenced all the aforesaid five appellants under section 147 I. P. C. to two years R. I. under section 148, I. P. C. to three year R. I. and under section 302/149 I. P. C. to imprisonment for life. Mohan Singh alias Mohan Lal, appellant is further convicted under section 302 I. P. C. simpliciter and sentenced to imprisonment for life. All the sentences were ordered to run concurrently. ( 2 ) BRIEF facts of the prosecution case are that appellants and complaints party belong to the same village Bhurchuni, P. S. Khakheru district Fatehpur. Appellants Mohan Singh alias Mohan Lal and Rajaram are real brothers. Other appellants are their nephews and belong to one party. Vijai Singh alias Udai Pratap Singh (deceased) was cousin of the complainant Man Singh (P. W. 2) It is alleged that Shyam Lal, appellant had initiated a criminal case under section 325 I. P. C. against Vijai Singh alias Udai Pratap Singh (deceased) and certain other persons before the present incident, the trial of which was pending at the time of this incident. A day before this incident Vijai Singh alias Udai Pratap Singh came back after attending the aforesaid case in the court and since then he was lying ill with fever on 7. 7. 76. On 7. 7. 76 at about 3. 30 p. m. when Vijai Singh alias Udai Pratap Singh was lying ill to aforesaid illness on a cot in a varandah on his roof. All the five appellants armed with guns came near his cot and on exhortation of four co. appellants, Mohan Singh alias Mohan Lal, appellant fired his gun at Vijai Singh alias Udai Pratap Singh from a very close range which hit him below and medical to both nipples and he died on the spot due to that injury. All the five appellants armed with guns came near his cot and on exhortation of four co. appellants, Mohan Singh alias Mohan Lal, appellant fired his gun at Vijai Singh alias Udai Pratap Singh from a very close range which hit him below and medical to both nipples and he died on the spot due to that injury. This occurrence is alleged to have been seen by Smt. Chandrakali (P. W. 3) mother of the deceased who raised alarm, which attracted the attention of several persons of the village including, complainant Man Singh Mahendra Pratap Singh alias Kallu (P. W. 4), Ram Bhawan and others who saw all the appellants running away toward the roof of the house of Ram Bhawan through a heap of bricks going towards the roof of Shyam Lal, appellants. ( 3 ) AFTER the incident was over Smt. Chandrakali narrated all about the incident to the complainant Man Singh who wrote a report Ext. Ka 2 and took it to the public outpost Dhata where he handed it over to constable Moharrir, Sheo Raj Singh on 7/7/1976 at 6. 15 p. m. on the basis of which a chick report Ext. Ka. 15 was prepared. The case was registered under sections 147/148/149/302, I. P. C. against all the appellants and investigation was entrusted to Shri Bali Karan Singh S. I. (P. W 5) who was present at the police station. He reached on the spot, prepared an Inquest report and after completing all the formalities sent the dead body of Vijai Singh alias Udai Pratap Singh for postmortem. Thereafter he recorded the statements of Man Singh, Smt. Chandrakali, Mahendra Pratap Singh alias Kallu Singh and certain others. He also inspected the spot and prepared site plan Ext. Ka-7. He found heap of bricks towards the west of the house of Ram Bhawan and had shown it in the site plan. He also found bamboos lying there, prepared memo Ext. Ka. 9 and gave the same in the supurdagi of the complainant. ( 4 ) DR. M. M. S. A. Khan (P. W. 4) conducted the post-mortem examination on the dead body of Vijai Singh alias Udai Pratap Singh on 9. 7. 86 at 10 a. m. and found the following ante-mortem injuries thereon: 1. Gun shot wound of entry 1 x 1 x cavity deep present over the xiphesternal region 41/21! ( 4 ) DR. M. M. S. A. Khan (P. W. 4) conducted the post-mortem examination on the dead body of Vijai Singh alias Udai Pratap Singh on 9. 7. 86 at 10 a. m. and found the following ante-mortem injuries thereon: 1. Gun shot wound of entry 1 x 1 x cavity deep present over the xiphesternal region 41/21! below and medial to both nipples in the mid line. Blackening 2 in diameter present alround. Duration from front forwards, down wards obliquely back-wards. 2. On Internal examination he found left vertebrae fractured under injury No. 1. Stomach was found empty. Small intestine and large intestine were found filled with gases faecal matter. In the opinion of the Doctor the death was caused due to shock and haemorrhage because of injuries described. ( 5 ) AFTER completing the investigation charge-sheet Ex. K 1-17 was submitted against all the appellants and the matter was committed to session for trial. ( 6 ) THE prosecution has examined five witnesses in support of its case, out of whom Man Singh (P. W. 2) Smt. Chandrakali (P. W. 3) and Mahendra Pratap Singh alias Kalloo Singh (P. W. 4) are the eye witnesses of the occurrence, rest of the witnesses are Doctors and Investigating Officer. ( 7 ) THE appellants pleaded not guilty and stated that they have been falsely implicated in this case due to enmity. They have admitted that Mohan Singh alias Mohan Lal and Raja Ram are real brothers and Shyam Lal appellant started a criminal case under section 325 I. P. C. against Vijai Singh alias Udai Pratap Singh and others before this incident. Mohan Singh alias Mohan Lal further stated that he was a witness in the criminal case under section 325 I. P. C. started by Shy am Lal, appellant therefore he has been falsely implicated in this case. Mohan Singh alias Mohan Lal further stated that he was a witness in the criminal case under section 325 I. P. C. started by Shy am Lal, appellant therefore he has been falsely implicated in this case. Similar is the statement of Sheo Sampat Singh, appellant Raja Ram appellant has stated that he was falsely implicated in this case on account of the fact that his real brother Mohan Singh alias Mohan Lal appellant had deposed against Vijai Singh alias Udai Pratap Singh in the said criminal case under section 325 I. P. C. Shyam Lal appellant has stated that he had given the abadi land to Harijans and that the complainant Man Singh and others intended to take forcible possession thereon and therefore he filed a case under section 115 U. P. Z. A. and L. R. Act, whereupon, the complainant and others beat him, therefore he started the above criminal case under section 325 I. P. C. It is on account of this enmity that he has been falsely implicated in this case. ( 8 ) AFTER considering the entire evidence, the learned Sessions Judge has convicted and sentenced the appellants as aforesaid, hence this appeal. ( 9 ) SHRI C S. Saran and Shri Jagdish Singh, learned counsel for the appellants vehemently urged that independent witnesses of the locality have not been produced. Only mother and brothers of the deceased have been produced, who are highly interested and inimical to the appellants, there are inherent improbabilities and material contradictions in their statements which have been lightly brushed aside by the learned Sessions Judge. They also criticised the restrictions imposed by the Sessions Judge on the counsel for the appellants that they should cross-examine the witnesses beading wise. They further contended that the convictions and sentences of all the appellants to 2 years and 3 years R. I. under sections 147 and 148 I. P. C. respectively, for the same act are not justified. ( 10 ) THERE is no doubt that convictions and sentences of all the appellants to 2 years R. I. under section 147 and 3 years R. I. under section 148 I P. C. for the same act are not justified. The method of recording of cross-examination of the P. Ws. only heading-wise is also not proper. ( 10 ) THERE is no doubt that convictions and sentences of all the appellants to 2 years R. I. under section 147 and 3 years R. I. under section 148 I P. C. for the same act are not justified. The method of recording of cross-examination of the P. Ws. only heading-wise is also not proper. It is contrary to the spirit of the provisions of section 138 of the Evidence Act which reads as under: The examination and cross-examination must relate to relevant facts but the cross- examination need not be confined to the facts to which the witness testified on his examination-in chief. In the cross-examination of Man Singh, P. W. 2, there are 4 headings viz. (i) topography (ii) relationship (iii) motive (iv) deceased was not murdered but he committed suicide. In the cross- examination of the other witnesses also the same method has been adopted by the trial court Right of cross-examination of P Ws. by the counsel of accused in his own way, is a valuable right and it should not be restricted to headings only. In the case of Vassiliades v. Vassiliades, the Privy Council has also held that cross-examination is one of the most important processes for the education of the facts of a case and all reasonable latitudes should be allowed, but the Judge has always a discretion as to how far it may go or how long it may continue. A fair and reasonable exercise of discretion will not generally be questioned by an appellate court. Division Bench of this Court in two criminal appeals Nos. 1653 of 1977 and 2768 of 1977 has also adversely commented this peculiar method of recording cross-examination adopted by this very Sessions Judge. ( 11 ) NOW we proceed to examine the merit of the prosecution case. The aforesaid prosecution story has been supported by three eye witnesses, namely, complainant Man Singh (P. W. 2) cousin of the deceased, Smt. Chandrakali (P. W. 3) mother of the deceased and Mahendra Pratap Singh alias Kalloo Singh (P. W. 4) brother of the deceased. ( 11 ) NOW we proceed to examine the merit of the prosecution case. The aforesaid prosecution story has been supported by three eye witnesses, namely, complainant Man Singh (P. W. 2) cousin of the deceased, Smt. Chandrakali (P. W. 3) mother of the deceased and Mahendra Pratap Singh alias Kalloo Singh (P. W. 4) brother of the deceased. Man Singh is the complainant who was at point 14 on the eastern side of Varandah of Makan of Jang Bahadur Singh which is at 40 paces from the place of occurrence Smt. Chandrakali was at point E shown in the kitchen which is at a distance of 10 feet from the place of occurrence. Mahendra Pratap Singh alias Kalloo Singh was at a point D shown in Chappar towards north east at a distance of 20 feet from the place of occurrence. Smt. Chandrakali is the mother of the deceased who was present in the kitchen quite close to the place of occurrence and saw the occurrence from there. In fact she is the only witness of the actual occurrence of firing by a gun at the deceased by Mohan Lal, appellant. The remaining two witnesses, Man Singh and Mahendra Pratap Singh alias Kalloo Singh have stated that they saw the appellants running away from the roof after hue and cry was raised by Smt. Chandrakali (P. W. 3), mother of the deceased. ( 12 ) THERE is no doubt that all the aforesaid three eye witnesses are close relations of the deceased and admittedly there was enmity between the parties. A criminal case was pending against Vijai Singh alias Udai Pratap Singh (deceased) at the time of the occurrence. It was decided on 18/12/1976 five months after this occurrence which is clear from the copy of the Judgment filed in this case. Enmity is a double edged weapon which cuts both ways and prosecution can very well rely on this circumstance in support of its case and urge that it serves as a motive for commission of crime by the accused. ( 13 ) IT is also true that the two witnesses. Enmity is a double edged weapon which cuts both ways and prosecution can very well rely on this circumstance in support of its case and urge that it serves as a motive for commission of crime by the accused. ( 13 ) IT is also true that the two witnesses. namely, Man Singh (P. W. 2) and Mahendra Pratap Singh alias Kanoo Singh (P. W. 4) are full brothers of the deceased and had not seen the actual assault and Smt. Chandrakali (P. W. 3) mother of the deceased is a solitary eye witness of the occurrence but this factor can hardly be a sufficient ground for setting aside the impugned convictions. In such a situation it is well settled by a decision of the Supreme Court in Piara Singh v. State of U. P. , that the evidence of interested or inimical witnesses is to be scrutinised with care but it cannot be rejected merely on the ground of being partisan evidence. In case of Deep Chand v. State of Haryana, the Supreme Court has further held that the evidence of interested witness has to be considered with care and caution and if it is found satisfactory, the mere fact that they are interested persons cannot be the ground for discarding it. In Masaltis case, Supreme Court has observed that a criminal court has to appreciate evidence given by witnesses who are partisan or interested. It has to be very careful in weighing such evidence, whether or not there are discrepancies in evidence, whether or not the evidence strikes the court as genuine, whether or not story disposed by evidence is probable. All there matters must be taken into account. It would be unreasonable to contend that the evidence given by such witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. ( 14 ) IN the light of the aforesaid observations of law by the Supreme Court in various cases, when we proceed to scrutinise the evidence on record, we find in this case that Smt. Chandrakali is as solitary eye-witness of the actual assault. She was sitting near the door without shutters of the kitchen at a distance of 10 feet towards south of the Verandah on the roof of the house of Jang Bahadur where Vijai Singh alias Udai Pratap Singh (deceased) was lying ill on a cot. She was sitting near the door without shutters of the kitchen at a distance of 10 feet towards south of the Verandah on the roof of the house of Jang Bahadur where Vijai Singh alias Udai Pratap Singh (deceased) was lying ill on a cot. From there she had seen that Mohan Singh alias Mohan Lal, appellant shot her son Vijai Singh on the exhortation of other accused persons that the deceased was the root cause of litigation. Man Singh (P. W. 2) cousin of the deceased was sitting in the Verandah in front of his main door and on hearing sound of fire and shrieks of his aunt, he came out of his Verandah and saw the accused scaling down from the roof. Mahendra Pratap Singh alias Kaloo Singh (P. W. 4) is the real brother of the deceased. He was sleeping under a Chappar over the roof of the house of his uncle. He bas repeated the same thing which Man Singh has slated that he also saw the accused going. None of these two witnesses had seen the actual assault. There is no doubt that Smt. Chandrakali is the mother of the deceased and she was alone to see the occurrence but this very circumstance would add to the value of her evidence because she would be interested in ensuring that the real culprits responsible for the murder are punished and not innocent persons. Her deposition regarding firing on her son by Mohan Singh alias Mohan Lal by a gun from a close range finds ample corroboration from the medical evidence as well as from other evidence on the record. ( 15 ) DR. M. M. S. A. Khan (P. W. 1) has clearly noted down in the post-mortem report (Ext. Ka-1) that the deceased received a single injury and Blackening in 2/1 diameter was present alround the gun shot wound of entry. He has also stated that there is a possibility of the death of Vijai Singh alias Udai Pratap Singh having taken place on 7. 7. 1976 at 3. 30 p. m. assisted by P. Ws Apart from this recovery of blood stained Gadda (Ext. 3), Bed-sheet (Ext. 4), Bandh of cot (Ext. 5) and Bullet (Ext. 6) from the place of occurrence also corroborate the statement of Smt. Chandrakali (P. W. 3 ). 7. 1976 at 3. 30 p. m. assisted by P. Ws Apart from this recovery of blood stained Gadda (Ext. 3), Bed-sheet (Ext. 4), Bandh of cot (Ext. 5) and Bullet (Ext. 6) from the place of occurrence also corroborate the statement of Smt. Chandrakali (P. W. 3 ). ( 16 ) SINCE the large intestine of the deceased was found full of facial matter and gases the learned counsel for the appellants has vehemently urged that the occurrence might have taken place at about 6:00 A. M. in the dark. We find it difficult to believe this argument. It is clear from the evidence that the deceased could survive for sometime after receiving the injuries. In such a situation his family members would have taken him to some hospital and would not have kept his body in their house till 3. 30 P. M. So far as presence of the facial matter is concerned it is not a conclusive evidence to the effect that occurrence took place at 6. 00 A. M. in the dark particularly when he was ill. The presence or absence of facial matters in large intestine also differs from individual to individual and it cannot wipe away evidence of the eye witness and other circumstances of this case. In view of the above discussion, we find no force in the argument of the learned counsel for the appellants that occurrence might have taken place at 6. 00 A. M. and nobody saw the occurrence. ( 17 ) ON the basis of the alleged statement of Smt. Chandrakali (P. W. 3) before the Investigating Officer that the appellants armed with gun came to her Angan from her roof and surrounded her son, learned counsel for the appellant, vehemently contended that there is a material contradiction in her statement before the trial court. The actual words recorded as her alleged statement before the Investigating Officer read as under:. . (Vernacular Matter Ommited ). . A careful reading of the foresaid statements make us quite clear that there is no material contradiction in her statement. On careful scrutiny of the statement of Smt. Chandrakali and the Investigating Officer and site plan as well as the finding of the learned Judge we find no material contradictions in the statement of Smt. Chandrakali which can materially affect the merit of the prosecution case. She is an illiterate lady. On careful scrutiny of the statement of Smt. Chandrakali and the Investigating Officer and site plan as well as the finding of the learned Judge we find no material contradictions in the statement of Smt. Chandrakali which can materially affect the merit of the prosecution case. She is an illiterate lady. A little variation here and there in her statement indicates that she is not a tutored witness. Thus the contention of the learned counsel for the appellants carries no weight on this point. ( 18 ) THE next point vehemently urged by Sri Jagdish Singh, learned counsel for the appellants in this case was that Vijai Singh alias Udai Pratap Singh had actually committed suicide because he was completely frustrated due to his failure in Intermediate Examination as a Private candidate. It has also been suggested that Vijay Singh alias Udai Pratap Singh failed twice in High School Examination and his failure in intermediate Examination was rebuked or scolded by his father and uncle. The witnesses vehemently denied this suggestion. On the other hand they have deposed that Vijai Singh had left the studies after passing High School Examination in III Division in the third attempt and started looking after his agriculture, therefore, his father and uncle did not ask him to prosecute his studies. He had a pucca house and landed properties. He was married and had a daughter also. After careful scrutiny of place, injury and other evidence on record we are fully satisfied that there was no strike or tribulation in his family and this was not a case of suicide or self suffered accident. Looking at the sheet and nature of the injury and the size of the gun or rifle, the deceased could not be said to have committed suicide with a rifle. A gun shot entry wound 1 x 1 x cavity deep was present over the xiphesternal region 41/2 below and medial to both nipples in the mid-line. Ordinarily such injury is not possible by stretching bands. ( 19 ) IT was also urged before us that if as alleged by the prosecution Vijai Singh alias Udai Pratap Singh (deceased) had high fever, he must have covered his body with clothes and his failure to do so is an indicative of the fact that he had been there to commit suicide. We find no force in this argument also. We find no force in this argument also. The incident took place in the first week of July when the weather is generally found guilty. In such a weather while lying in the verandah if he bad not covered his body that does not mean to indicate that he had been there on the cot to commit suicide. After careful scrutiny of the facts and circumstances of the case we are satisfied that this is not the case of suicide but homicide. ( 20 ) IT has also been urged by the teamed counsel for the appellants that there are material improvements in the statements of the witnesses regarding going of the accused on the roof of the deceased from the roof of the house of Ram Bhawan Singh. According to them previously Man Singh and Mahendra Pratap Singh alias Kaloo Singh have stated that they went with the help of bamboo but in the trial court they have stated that they climbed the roof of Jang Bahadur Singh through the heal of bricks. There is no doubt that the Investigating Officer has recovered bamboos but at the same time he has also shown heap of bricks in between the houses of Jang Bahadur Singh and Ram Bhawan Singh. The height of Jang Bahadur Singhs house from the heap of bricks was nearly 3 ft. therefore, in that process of going through the brick, assistance of bamboos cannot be ruled out and in any case. It cannot be said that it materially affects the merit of the prosecution case that Mohan Singh alias Mohan Lal fired the gun-shot at the deceased. ( 21 ) AFTER careful and critical analysis of the statements of the aforesaid three eye witnesses and other circumstances of the case, we are fully satisfied that the statement of Smt. Chandrakali (P. W. 3)Is fully reliable to this extent that Mohan Singh alias Mohan Lal fired a shot at Vijay Singh alias Udai Pratap Singh (deceased) from a very close range and ran away along with his associates. Her statement regarding firing on the deceased by Mohan Lal from close finds full corroboration from medical evidence. There is no such corroborating evidence regarding the presence and participation of other appellants. Some of the associates may be there but it cannot be said with certainty that all other appellants were there. Her statement regarding firing on the deceased by Mohan Lal from close finds full corroboration from medical evidence. There is no such corroborating evidence regarding the presence and participation of other appellants. Some of the associates may be there but it cannot be said with certainty that all other appellants were there. Possibility to exaggerate things and to involve as many accused as possible are not ruled out. Except exhortation no other specific part is assigned to any other appellant except Mohan Singh alias Mohan Lal appellant. Accordingly to the decision of the Supreme Court in the case of Zinul Haq. v. State of Bihar the evidence of exhortation is, in the very nature of things, a weak piece of evidence. There is quite often a tendency to implicate some persons, In addition to the actual assailant by attributing to that person an exhortation to the assailant to assault the victim. Unless the evidence in this respect be clear, cogent and reliable no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant. ( 22 ) THEREFORE in view of the aforesaid discussion we are fully satisfied that the prosecution has proved its case beyond reasonable doubt only against Mohan Singh alias Mohan Lal appellant to this effect that he fired a gun shot on Vijai Singh alias Udai Pratap Singh who died due to the injury after sometime on the some day and without eating any reflection on the merit of the prosecution case due to abundant caution we are favorably inclined to give benefit of doubt to the remaining 4 co-accused. ( 23 ) NOW the only question left for our consideration is as to what offence has been made out against Mohan Singh alias Mohan Lal appellant. Mohan Singh was charged under section 302 I. P. C. simplicitor as well as under sections 302/149 of I P. C. and under sections 147/148 I. P. C. Since we are giving benefit of doubt to 4 persons, therefore, convictions of the appellants under sections 302/149/147/148 are not justified by the conviction of Mohan Singh alias Mohan Lal under section 302 IPC simplicitor and a sentence of life imprisonment to him for the same are justified and maintained. ( 24 ) IN the result this appeal is partly allowed. ( 24 ) IN the result this appeal is partly allowed. The conviction of Mohan Singh alias Mohan Lal appellant under Section 302 I. P. C. simplicitor and sentence of life imprisonment to him for the same are maintained. His convictions and sentences under other Sections are set aside. He is on bail, he shall be taken into custody forthwith to serve out his sentence according to law. ( 25 ) THE convictions and sentences of the remaining four appellants namely, Bhagwat Singh, Sheo Sampat Singh, Shyam Lal Singh and Raja Ram against all the charges levelled against them are set aside. They are on bail, they need not surrender, their bail bonds are cancelled and sureties discharged. .