Judgment Ram Naresh Thakur, J. 1. Both these appeals arise out of the same judgment. Therefore, with the consent of the parties and for their convenience, they are being disposed of by this common judgment. 2. Appellant Laloo Singh alias Lal Mohan Singh (Cr. A.180 of 1984)has been found guilty for an offence under Sec.302 of the Indian Penal code and has been sentenced to undergo rigorous imprisonment for life. Appellants Bishwanath Singh, Jamuna Singh and Jagnarain Singh (of Cr. A.74 of 1984) have been found guilty under Sec.302 read with Sec.34 of the indian Penal Code and each of them has also been sentenced to undergo rigorous imprisonment for life. 3. The prosecution case, as told by P. W.8, the informant is that on 24th july, 1980, at acout 7 a. m. the informant Guptnath Singh was in his paddy seedling field. Deceased Satya Narain Singh had also gone to his field. They found that six bullocks of appellant Bishwanath Singh were grazing the paddy seedlings belonging to Satya Narain Singh. Appellant Bishwanath Singh and his son Lal Mohan Singh were there. This led to some altercation in between bishwanath Singh and Satya Narain Singh. It may be mentioned that appellants Jagnarain singh, Jamuna Singh and Lal Mohan Singh are sons of appellant Bishwanath singh. Satya Narain Singh, the deceased, was the nephew of the informant; satya Narain was taking the bullocks from his field to the pound on which appellant Bishwanath asked his son Lal Mohan to bring the gun otherwise satya Narain would take the bullocks to the pound. Appellant Lal Mohan ran to his house and brought the gun. Along with Lal Mohan appellants Jagnarain and jamuna also came. Jagnarain was armed with a lathi and Jamuna had a bhala. Lal Mohan had brought an unlicenced gun. Bishwanath asked Laloo alias lal Mohan-"mara aab keyo dekh rahe ho". Laloo Singh then fired his gun which could hit Satya Narain on his back shoulder. After receiving the gun shot injury Satya Narain fell down in his field in which paddy had been transplanted. By that time witnesses had also arrived and saw the occurrence. Thereafter, the appellants took to their heels. Satya Narain became unconscious and was taken to Kudra hospital on a khatia. After receiving the gun shot injury Satya Narain fell down in his field in which paddy had been transplanted. By that time witnesses had also arrived and saw the occurrence. Thereafter, the appellants took to their heels. Satya Narain became unconscious and was taken to Kudra hospital on a khatia. At Kudra State Dispensary P. W.9, who was the officer incharge of Kudra Police Station at that time, came at 9.45 a. m. and recorded the fardbeyan of P. W.8 Guptnath Singh, which is Exhibit 4, and thereafter the said fardbeyan (Exhibit 4) was sent to Bhabua Police Station under whose jurisdiction the place of occurrence situated. From Kudra State dispensary the deceased was being taken to Bhabua hospital but on the way, soon thereafter, ho died. The dead body was then brought back to Kudra police Station where inquest report was prepared and the dead body was sent for post-mortem examination. 4. P. W.10 the officer incharge of Bhabua Police Station after drawing up a formal First Information Report (Exhibit 5) on the basis of the fardbeyan (Exhibit 4), took up the investigation of the case on 24th July, 1980, inspected the place of occurrence, examined witnesses and, thereafter, handed over charge to Assistant Sub-Inspector of Police K. C. Dubey on being transferred, on 8th August, 1980. Ultimately, charge-sheet was submitted against these appellants who were put on trial. 5. In the trying court, as many as ten witnesses were examined on behalf of the prosecution. The appellants pleaded their innocence and examined four witnesses to show that appellants Bishwanath singh and Jamuna Singh were suffering from eye disease and their eye-sight was very weak. The learned trying court did not accept the defence version, and finding the prosecution case fully established, convicted the appellants as stated above. 6. Learned counsel appearing for the appellants has challenged the order of conviction of the appellants on the ground that the prosecution has not come up with a true picture of the case. According to the appellants, the occurrence might have taken place at some other place much before the occurrence and that is why nobody saw the occurrence. 7. 6. Learned counsel appearing for the appellants has challenged the order of conviction of the appellants on the ground that the prosecution has not come up with a true picture of the case. According to the appellants, the occurrence might have taken place at some other place much before the occurrence and that is why nobody saw the occurrence. 7. Oat of ten witnesses, examined on behalf of the prosecution, P. Ws.1, 5, 6 and 8 are witnesses on the point of occurrence ; P. W.2 is the doctor who held the post-mortem examination ; P. W.3 is a formal witness ; P. W.4 has been tendered ; P. W.7 is the officer incharges who submitted charge-sheet ; P. W.9 recorded the fardbeyan and P. W.10 is the main Investigating Officer. 8. Exhibit 4 contains the earliest statement of the informant about the occurrence according to which Laloo Singh on being ordered by appellant bishwanath Singh went to his house and brought an unlicensed gun. Appellants jagnarain and Jamuna also came with him. It is not mentioned in the fardbeyan that Jagnarain and Jamuna had any weapon in their hands nor has any overt act been alleged against them except that all the appellants proceeded towards the informant and his nephew. Of course, in the court, it has been alleged that jagnarain came with a lathi and Jamuna came with a bhala and when Satya narain fell down after receiving gun shot injury, Jagnarain assaulted him with lathi. But this statemant, made in the court, as stated above, is not mentioned in the fardbeyan which is the earliest statement. The doctor (P. W.2) who conducted the post-mortem examination, doss not say that there was any injury caused by hard blunt substance like lathi. Therefore, the statement of the informant in court that Jagnarain assaulted the deceased with lathi is not corroborated by independent medical evidence. In that view of the matter it appears that it is an exaggerated allegation against appellants Jagnarain and jamuna that they came armed. 9. As stated above, Jagnarain and Jamuna arc full brothers of Laloo Singh. There is nothing in the evidence on record that these two appellants had any common intention to kill the deceased nor is there anything to show that there was any prior meeting in between all these appellants in order to kill the deceased. 9. As stated above, Jagnarain and Jamuna arc full brothers of Laloo Singh. There is nothing in the evidence on record that these two appellants had any common intention to kill the deceased nor is there anything to show that there was any prior meeting in between all these appellants in order to kill the deceased. It has come in the evidence of the prosecution witnesses themselves that it was the first time when appellant Bishwanath Singh had let loose his cattle in the field of the deceased and there was no enmity from before in between these two parties. Therefore, there is no material to come to the conclusion that there was pre-planning or pre-meditation to kill the deceased. Common inten-tion cannot be proved by actual facts. It has to be inferred from the subsequent conduct of the accused persons and their previous behaviour. In the present case, as stated above, no subsequent conduct of these two appellants or their previous behaviour has been shown to indicate that they had pre-planned from before to kill the deceased. Simply because they had accompanied Laloo alias Lal Mohan who gave the fatal blow to the deceased, will not be sufficient to attract the provisions of Sec.34, of the Indian Penal Code. Something more is required for convicting these appellants, namely Jagnarain Singh and Jamuna singh for an offence under Sec.302 read with Sec.34 of the Indian penal Code which is lacking in the present case. Therefore, I find and hold that the conviction of these two appellants under Sec.302 read with Section 34 of the Indian Penal Code cannot be maintained and, it is, accordingly, set aside. 10. As regards appellant Bishwanath Singh is concerned, he is father of all the other appellants. He was found to be 70 years old on the day of judgment, i. e. on 17th January, 1; 84. In the First Information Report it is stated. "phatak le jate dekh kar Bishwanath Singh ne apne larke Laloo Singh jo us samai wahanpar the, se kaha ki sala hamare janwar ko phatak le ja raha hai, daur kar bandook lao aw sale ko mar do. " It is further said in the fardbeyan that when laloo came with fire-arm, Bishwanath Singh said. "keya dekhte ho, maro sale ko. " It is further said in the fardbeyan that when laloo came with fire-arm, Bishwanath Singh said. "keya dekhte ho, maro sale ko. " In Court the informant (P. W.8) has said, "bishwanath ne apne larke ko kaha ki daoro, bandook le aao nahi to yah ballon ko phutak le jayega. Unka larka Laloo Singh daur kar ghar gaya. The informant, thereafter, has further said in court. "bishwanath Singh poora taish me aakar lalkare ki maro aab keya dekh rahe ho. " Appellant Laloo Singh then fired his gun. From the aforesaid statement of the informant in court it is clear that Bishwanath Singh has not been alleged to have said to kill the deceased ; rather he simply said-"maro". This statement of Bishwanath Singh has to be considered in the background of the facts of the case. As stated above, the prosecution witnesses have admitted that there was no previous enmity between the parties. It was the first day when the cattle of Bishwanath Singh were grazing the paddy seedlings of the deceased. They were not armed with fire-arm from before. It has also come in evidence that there was some altercation in between them at first instance and in this background, Bishwanath is alleged to have asked his son to bring gun. The gun was fired and the deceased fell down. The deceased did not die then and there and no attempt was made to see that the deceased is killed at the spot. Blow was not repeated. Therefore, it cannot be said that this appellant Bishwanath singh shared the common intention to kill the deceased and in furtherance of the said common intention, the deceased was killed. Therefore, taking into consideration all these facts. I find that this appellant Bishwanath Singh also cannot be held guilty for an offence under Sec.302/34 of the Indian Penal Code and he is also entitled to an acquittal. 11. Now coming to the case of Laloo Singh alias Lal Mohan Singh, his case stands on different footing. There is consistent evidence that it was this appellant who fired his gun at the deceased which could hit the deceased on his back shoulder with the result that he fell down and became unconscious. He was taken to Kudra State Dispensary from where he was being taken to another hospital but he died on the way on the same day. He was taken to Kudra State Dispensary from where he was being taken to another hospital but he died on the way on the same day. Much has been argued by learned counsel for the appellant that according to the prosecution evidence the gun was shot from behind and the deceased received injury on his back shoulder, but according to the evidence of P. W.2 the wound of entry was on the chest from front and the injury on the back was the wound of exit. Therefore, according to learned counsel for the appellant, the medical evidence does not support the prosecution case, rather it contradicts the manner of occurrence. With due respect for the learned counsel for the appellant, I fail to appreciate his argument on this point. It has to be remembered that P. W.2 is the dootor who conducted the post-mortem examination. The wound was bandaged. There is consistant oral evidence that the deceased was hit on his back shoulder and there was only one firing. According to P. W.2, he found one metalic iron pellet in the interior wall of the chest which was lodged near injury no.1. He had found the following, two injuries on the body of the deceased : " (1) One perforating wound on the upper part of the left side of the chest" X " tissue deep, forming wound of entry. (2) Another perforating wound 1/4" X " forming wound of exit on the upper part of the left side of the back opposite injury no.1. " on opening wound No.1. there was communication to injury No.2. He also opined that both injuries were caused by one shot and death was within 12 hours of the post-mortem examination. According to him, the injuries were sufficient to cause death. This doctor (P. W.2) was recalled at the instance of the court and certain questions were put to him. In answer to court questions he had to admit that ordinarily the wound of exit would be larger than the wound of entry in case of injuries by gun-shot but he added that there may be cases in which the wound of exit may bs smaller than the wound of entry. P. W.2 found injury no.1 to be X " X tissue deed, forming the wound of entry and he found injury No.2 to be 1/4" x ", forming the wound of exit. P. W.2 found injury no.1 to be X " X tissue deed, forming the wound of entry and he found injury No.2 to be 1/4" x ", forming the wound of exit. Therefore, according to him, the wound of entry was larger in size than the wound of exit. Ordinarily, even according to this witness, the wound of exit caused by gun-shot is larger in size than the wound of entry. He could not give any special reason as to why in the present case the wound of entry was larger in size than the wound of exit except that one pellet got stuck up in the interior wall of the chest. The doctor did not mention whether the margin of the wounds were inverted or averted. Unfortunately, the doctor who examined the deceased at the first instance at Kudra Hospital was not examined by the prosecution. Had he been examined, he would have thrown much light in this connection. In the circumstances of the present case, however, in view of the oral evidence of the witnesses, the evidence of the doctor (P. W.2)does not inspire much confidence. There is no case on behalf of the prosecution that there was more than one firing and according to the doctor, one pellet was found stuck inside the chest wall, [n that view of the matter, there would not have been any wound of exit in the ordinary course. 12. The evidence of the witnesses on the point of occurrence is quite consistent and reliable. Nothing has been shown in their evidence to discredit their evidence. There is consistent evidence that it was this appellant Laloo Singh who fired the shot causing injury to the deceased which resulted in his death. No doubt, from the evidence it would appear that all the eye witnesses belong to the same family but on this ground alone their consistent evidence cannot be thrown out. It has been argued by learned counsel for the appellant that some other persons had also collected according to the prosecution evidence itself and, therefore, in absence of any independent witness the evidence of these witnesses should not be relied upon, being members of the same family. There is no hard and fast rule that the evidence of relations and family members should be discarded and not relied upon in each and every case. There is no hard and fast rule that the evidence of relations and family members should be discarded and not relied upon in each and every case. Every case has to depend upon its own circumstances. Here, the occurrence is alleged to have taken place in the morning hour. It was the season of paddy transplantation. The informant and the deceased had gone to see their paddy seedlings. Their houses are not far off. In that view of the matter, the presence of the eye witnesses cannot be doubted. Though these witnesses have been subjected to lengthy cross-examination, yet nothing has been shown to indicate that they had any animosity with the appellants from before. Even the deceased had no enmity with the appellants from before. Therefore, it does not stand to reason as to why they would falsely implicate the appellants instead of real culprits. At this stage it may be mentioned that the argument of the learned counsel for the appellants that the deceased might have been assaulted much earlier at some other place which was not seen by the witnesses, has also no basis to stand. No material has been brought on the record to indicate that the deceased was assaulted much earlier in darkness or at some other place. No doubt, the Investigating Officer has said that he did not find any blood at the place where the deceased is alleged to have received the gun-shot injury and had fallen down but he has explained that the field in which the deceased received the gun-shot injury and fell down was a muddy one with water and paddy had been transplanted. Therefore, there is nothing unnatural that no blood was found there. In a case of gun-shot injuries copious blood does not come out in every case. Therefore, non-presence of blood will not falsify the prosecution case that the occurrence took place in that field. The other objective findings of the Investigating Officer lend support to the prosecution case. He found some disturbance in that field and he also noticed the paddy seedlings grazed. All these facts clearly support the prosecution version of the occurrence. The post-mortem examination was conducted on 24th July, 1980 at 4 p. m. and, according to the doctor, death was caused within 12 hours of the post-mortem examination. He found some disturbance in that field and he also noticed the paddy seedlings grazed. All these facts clearly support the prosecution version of the occurrence. The post-mortem examination was conducted on 24th July, 1980 at 4 p. m. and, according to the doctor, death was caused within 12 hours of the post-mortem examination. This finding of the dotcor also lends some support to the prosecution theory about the manner of occurrence. 13. After giving my anxious thought over the entire matter and the evidence on record I find and hold that it was this appellant Laloo Singh alias lal Mohan Singh who caused fire-arm injuries to Satya Narain Singh which subsequently resulted in Ms death. 14. Before coming to the question as to what offence appellant Laloo singh alias Lal Mohan Singh has committed, certain facts have to be judged to determine the offence. Without being accused of repetition, the consistent prosecution evidence is that there was no enmity between the parties from before and it was the first day when the cattle of Bishwanath Singh was grazing the paddy seedling of the deceased. The prosecution evidence does not show that this appellant had gone here armed with fire-arm from before ; rather, according to the prosecution evidence, when there was exchange of words between bishwanath Singh and Satya Narain Singh, Bishwanath Singh asked him to bring gun and then this appellant went to his house and brought the gun. He fired one shot, and the deceased fell down. There is no evidence that he tried to repeat the firing nor did he care to know whether the deceased is dead. From the prosecution evidence itself, the deceased died subsequently. Although it is said that two other accused were armed with lathi and bhala, the doctor (P. W.2) did not find any bhala or lathi injury on the person of the deceased at the time of post-mortem examination. Of course, in court it has been stated that one lathi blow was given to the deceased but this fact is not mentioned in the First Information Report. All these facts taken together lead to the conclusion that this appellant had also no determination from before to kill the deceased or that he had pre-planned to kill him. Of course, in court it has been stated that one lathi blow was given to the deceased but this fact is not mentioned in the First Information Report. All these facts taken together lead to the conclusion that this appellant had also no determination from before to kill the deceased or that he had pre-planned to kill him. No doubt he used a fire-arm which is a deadly weapon and the deceased was hit on the back shoulder, but these two facts in themselves will not go to prove beyond all reasonable doubt that this appellant had the intention or pre-determination to kill the deceased. 15. From the circumstances enumerated above, it appears that everything happened in the present case in the spur of moment and it was all of a sudden and not pre-determined and pre-planned. If it would have been pre-planned, the appellant must have come armed with fire-arm from before. There is nothing to show that the appellant was knowing that the deceased would come and obstruct the grazing. Therefore, in my opinion, the appellant cannot be held guilty for an offence under Sec.302 rather the offence committed and proved against him will come within the purview of Sec.304 i art I of the indian Penal Code. His conviction under Sec.302 is, accordingly, altered to one under Sec.304 Part I of the Indian Penal Code. In view of aforesaid findings and evidence, defence version is not necessary to be discussed. 16. As regards the question of sentence is concerned, this appellant was found to be aged 21 years on the date of judgment i. e. on 17th January, 1984. The occurrence is alleged to have taken place in the year 1980. Therefore, he was near about 17 to 18 years old on the day of occurrence. Taking into consideration his age and the period already taken in prosecution of the case and the appeal, in my opinion, a sentence of ten years rigorous imprisonment will meet the ends of justice. 17. In the result, Criminal Appeal No.74 of 1984, preferred by appellants Bishwanath Singh, Jagnarain Singh and Jamuna Singh, is allowed, the order of conviction and sentence passed against them is set aside and they are acquitted of the charge framed against them. 17. In the result, Criminal Appeal No.74 of 1984, preferred by appellants Bishwanath Singh, Jagnarain Singh and Jamuna Singh, is allowed, the order of conviction and sentence passed against them is set aside and they are acquitted of the charge framed against them. The appeal of appellant Laloo singh alias Lal Mohan Singh, being Criminal Appeal No.180 of 1984, is dismissed subject to the modification in the order of conviction and sentence to the effect that his conviction is altered from Sec.302 to Sec.304 Part I of the indian Penal Code and he is sen tenced to undergo rigorous imprisonment for ten years instead of rigorous imprisonment for life. The period already undergone by this appellant will be set off towards the period of sentence imposed in terras of section 428 of the Code of Criminal Procedure. Decided accordingly.