JUDGMENT 1. 1. This appeal, by the accused, is directed against the judgment dated April 10, 1975 of the Additional Sessions Judge, Sri Ganga Nagar, convicting and sentencing the appellants Raj Kumar and Jagmohan for the offence under Section 302 and 302/34 I.P.C. respectively and sentencing each of them to imprisonment for life. 2. The case relates to the incident which took place at the house of Kashi Ram in village Malarampura, District Sri Ganganagar on the night of November 8, 1972, at about 9.00 p.m. in which Khetpal son of Kashi Ram was killed and Mohanlal, PW 2, was injured. The prosecution case, in brief, was that earlier on the day, the occurrence took place, the accused Rajkumar, accused Jagmohan, deceased Khetpal along with Budhram and Nathu Ram PW 4 had played the game of cards. During the play, a dispute arose, leading to exchange of words and also grappling between the accused Rajkumar and the deceased Khetpal. They exchanged slaps. The matter was, however, subsided; they were separated and the accused went away at that time but while leaving the place, accused Rajkumar gave a threat that he would revenge Khetpal for this. The prosecution story, further was that at about 9.C0/9.15 p.m. the same night, when Kashi Ram, Khetpal, Mohanlal, Dhanraj and Ram Pratap had just gone to bed in the pole of their house, described as a Darwaja. Kashi Ram and others heard the sound of gun shots fired outside their house. The outer wall of the Darwaja had shutters. In one of the shutters a window opening was kept. It was 31/2 feet long and 11/4 feet wide. Kashi Ram looked through the window and saw the accused Raj Kumar and Jagmohan standing there in the Gali at a distance of 5-6 feet from the gate of the house. Raj Kumar was armed with a double barrel 12 bore gun and Jagmohan was holding a rifle. Both the accused were using abuses. Looking at Kashi Ram the accused asked him to get Khetpal out of the house. They declared that they would finish him. Kashi Ram requested them to go away. In the mean time, however, Khetpal, Mohanlal and others also came near him to the window. Khetpal also asked the accused to go away and not to use abuses. Looking at Kashi Ram the accused asked him to get Khetpal out of the house. They declared that they would finish him. Kashi Ram requested them to go away. In the mean time, however, Khetpal, Mohanlal and others also came near him to the window. Khetpal also asked the accused to go away and not to use abuses. On this, the prosecution case proceeds further, the accused Jagmohan asked Rajkumar as to what he was looking at, he should fire the shot, Rajkumar, then fired a shot from his gun which travelled through the window and hit Khetpal on the right side of his chest. The gun shot also hit Mohanlal on his left arm. Thereafter, the accused left the place and went away. A jeep was arranged and Khetpal was taken to the hospital at Sangaria where he was declared dead. Kashiram went to the police station, Sangaria and lodged the First Information Report of the occurrence. It was 10.20 p.m. the same night. A case under Sections 302 and 302/34, I.P.C. was registered and investigation started. Shri Gorudan, who was the Station House Officer of the Police Station sent Shri Prittam Singh, ASI to bring there dead body of Khetpal from the hospital. The dead body was then brought to the Police Station. Shri Gorudan, busied himself in search of the accused. The next morning, i.e. on November 9, 1972, he reached the spot of incident in village Malaram Pura. There he prepared the site plan and memo of inspection; seized the blood stained earth, some wads, empty cartridge cases and other articles lying inside and outside the house. 3. The post-mortem examination of Khetpal was conducted by Dr. The next morning, i.e. on November 9, 1972, he reached the spot of incident in village Malaram Pura. There he prepared the site plan and memo of inspection; seized the blood stained earth, some wads, empty cartridge cases and other articles lying inside and outside the house. 3. The post-mortem examination of Khetpal was conducted by Dr. S.M. Saini on November 9, 1972 at 9.15 a.m. The doctor found the following injuries on his body: (1) One wound of entry (lacerated wound with inverted edges slight tatooing present) 1/4" X 1/4" x bone deep on right side of chest anteriorly close to lateral side upper part of chest; (2) One wound of exit (lacerated wound with everted edges no tatooing) just lateral to upper injury 1/2' X 1/2" X bone deep; (3) Five lacerated wounds with inverted edges with slight tatooing 1/4" x 1/4" X bone deep on right side of chest anterior laterally below the upper injuries at the level of 4th, 5th, 6th and 7th ribs; (4) One abrasion 1" X 1/4" X on right side of chest anteriorly about 2" from mid line at level of 5th rib; (5) One abrasion 1"x 1/2" caving into a minor lacerated wound on right side of chest anteriorly just close to mid line at level of 5th rib; On opening the dead body the doctor noticed the following internal injuries; (1) A channel was dissected out connecting external injuries Nos. 1 and 2; (2) Right 4th, 5th, 6th and 7th ribs fractured, liver, right lung and lacerated 5th and 6th thoracic vertebrae fractured, spinal cord lacerated; (3) Two pellets recovered from the side of injuries in vertebral column. There pellets found on dissection posteriorly near mid line lodged in para-vertebral muscles of right side. The cause of death as per the opinion of the doctor was shook and stoppage of vital functions due to injuries on the right lung, liver, spinal cord, vertebrae and ribs, caused by a fire-arm. All the injuries were ante-mortem in nature. According to the doctor injury No. 3 was sufficient in the ordinary course of nature to cause death. The doctor also took out five pellets from the dead body, sealed them and gave them to the police. All the injuries were ante-mortem in nature. According to the doctor injury No. 3 was sufficient in the ordinary course of nature to cause death. The doctor also took out five pellets from the dead body, sealed them and gave them to the police. The injuries of Mohan Lal were also examined by the same doctor on November 8, 1972 at 11.00 p.m. Mohan Lal had 5 abrasions on his left arm latero-posteriorly. All the injuries were simple in nature and caused by a gun shot. 4. Both the accused were arrested on November 17, 1972. While in custody Rajkumar gave an information on November 19,1972 to the SHO that he had hidden a 12 bore double barrel gun in his field under the heap of gram, and that a rifle was in the house in village Shera. On this information the police recovered the 12 bore gun and the rifle at his instance from the places stated by him. The fire arms, the wads, cartridges and the lead pellets were sent for examination to the Central Forensic Science Laboratory, Central Bureau of Investigation, New Delhi. Shri G.R. Prasad, Senior Scientific Officer, opined that the two 12 bore cartridges marked by him as C/1 and C/2 were fired from a single weapon although it could not definitely be said that they were fired from the double barrel 12 bore gun marked by him as W/2. He was further of the opinion that the two 30 cartridge cases marked by him as C/3 and C/4 could have been fired from the rifle (W/1). For this also he said that a definite opinion could not be given for want of sufficient characteristic marks on the cartridge cases. Dr. Prasad further found that the tips of the firing pins of the DB-BL gun (W/2) appeared to have been deliberately filed/tampered with. After investigation the police filed a charge sheet against the appellants in the court of Munsif Magistrate, Haumangarh, who committed both of them to the court of Sessions to stand trial for the offences under Sections 302 and 302/34, I.P.C. 5. The trial was held by the Additional Sessions Judge, Sri Ganganagar. When the plea of the accused was recorded they pleaded not guilty and claimed to be tried. In all fourteen witnesses were examined in support of the prosecution case. The trial was held by the Additional Sessions Judge, Sri Ganganagar. When the plea of the accused was recorded they pleaded not guilty and claimed to be tried. In all fourteen witnesses were examined in support of the prosecution case. Out of them Kashi Ram, PW 1, Mohanlal, PW 2, and Dhanraj, PW 3 claimed to be the eye witnesses of the occurrence, Nathu Ram PW 4, was a witness to the quarrel which took place between Raj kumar and Khetpal earlier in the day. Dr. S.M. Saini, PW 8 proved the injuries found on the body of the deceased Khetpal. He also proved the injuries of Mohanlal. Dr. G.R. Prasad PW 14, gave the expert evidence regarding the fire arms. Shri Gorudan PW 13, was the Investigating Officer. Other witnesses were formal, who were examined to prove other links of the prosecution. In their statements, recorded under Section 313 Cr. P.C. the accused denied the prosecution allegations and stated that they had been falsely implicated. Rajkumar said that he was implicated on account of some dispute between him and the father-in-law of Kishan, brother of the deceased. Jagmohan's case was that his real name was Raj Mohan and that the witnesses had involved him falsely as he happened to be the brother-in-law of Rajkumar. Only one witness, DW 1 Dalveer Singh brother of accused Raj Kumar was examined in defence He deposed that the double barral gun belonged to him and was taken by the police from him and that the licence of the same was also in his name. 6. After trial the learned Additional Sessions Judge, by his judgment dated 10th April, 1975, convicted the appellants Rajkumar and Jagmohan for the offence under Section 302 and 302/34, I.P.C., I.P.C. respectively and sentenced each of them to imprisonment for life. The learned Additional Sessions Judge has held that the evidence of the three eye witnesses, namely, Kashi Ram PW 1 Mohan Lal, PW 2 and Dhanraj PW 3 is reliable and can be safely acted upon. According to the learned Additional Sessions Judge the occurrence took place when Khetpal was standing inside the house near the window fitted in the shutters of the main gate; the shot was fired from a distance not more than 12 feet and the witnesses were in a position to identify the accused. According to the learned Additional Sessions Judge the occurrence took place when Khetpal was standing inside the house near the window fitted in the shutters of the main gate; the shot was fired from a distance not more than 12 feet and the witnesses were in a position to identify the accused. Relying upon the evidence of the three eye witnesses the learned Additional Sessions Judge held that it was clearly established that both the accused went outside the main gate of the house of the deceased, both of them had fire arms which they used and that it was Rajkumar who fired the gun shot at the deceased which hit him on his right chest resulting in his death. The learned Additional Sessions Judge further held that Mohan Lal who was standing near the deceased at that time received the injury on his left arm by that very shot. About Jagmohan, the learned Judge held that he was present when the gun was fired at the deceased by Rajkumar, it was at his exhortation. On these findings the learned Additional Sessions Judge came to the conclusion that an offence under Section 302, I.P.C. against Rajkumar and under Section 302/34, I.P.C. against Jagmohan was clearly made out. Aggrieved by the aforesaid judgment the accused have filed the present appeal in this court. 7. We have heard Mr. M.C. Bhandari, learned Counsel for the accused appellants and the Public Prosecutor for the State. Learned Counsel for the appellants has urged that the alleged eye witnesses, namely, Kashi Ram, Mohan Lal and Dhanraj, did not see the occurrence, they reached late and cannot be treated as eye-witnesses of the incident. In any case, argues learned Counsel, that the version given by them is not believable as the incident did not take place in the manner they allege. Developing his arguments learned Counsel has submitted that the existence of the Chimney, in the light of which the witnesses claim to have recognised the assailants was an obvious improvement made in the court by Kashi Ram. It was a pitch dark night and the visibility was near nil, there was no source of any light which could make it possible for the eye witnesses to identify the assailants through the opening of the window which was hardly 1/1-4 feet wide. It was a pitch dark night and the visibility was near nil, there was no source of any light which could make it possible for the eye witnesses to identify the assailants through the opening of the window which was hardly 1/1-4 feet wide. The distance from which the gun was fired could not be less than 30' and if so, it was impossible for the witnesses to recognise the assailants from such a distance. Learned Counsel has further argued that the dispersion of the pellets show that atleast two fires must have been made or the gun was fired from a distance. In any event, submits learned Counsel, the witnesses, who have deposed that only one shot was fired which hit both the deceased Khetpal and the injured Mohan Lal, cannot be relied upon. Taking the case of Jagmohan learned Counsel has urged that his identity was doubtful, the part assigned to him that he exhorted the other accused to fire was highly doubtful and that in the absence of any supporting evidence to prove his presence and participation his connection and sentence deserves to be set aside. 8. Learned Public Prosecutor for the State has, on the other hand, supported the judgment of the learned Sessions Judge. He has contended that the evidence of the three witnesses was wholly reliable and sufficient to sustain the connection of both the accused. Learned Public Prosecutor has submitted that the evidence of the eye-witnesses finds support from the recovery of the weapons made on the information and at the instance of Raj Kumar. The dispersion of the pellets was not as wide as to make it impossible to cause injuries on both Khetpal and Mohanlal by a single shot. Both were standing adjacent to each other and were looking through the window which was 11/4 feet wide. 9. After giving our earnest consideration to the arguments advanced by the counsel for the appellants, we do not agree with his submissions as regards the case against Raj Kumar. All the three eye witnesses, namely, Kashi Ram, Mohanlal, and Dhanraj have stated that it was Raj Kumar who fired the gun shot which hit Khetpal on his chest, resulting in his death at the hospital. Raj Kumar is thus the principal accused. Khetpal died of gun shot injuries is not in dispute. All the three eye witnesses, namely, Kashi Ram, Mohanlal, and Dhanraj have stated that it was Raj Kumar who fired the gun shot which hit Khetpal on his chest, resulting in his death at the hospital. Raj Kumar is thus the principal accused. Khetpal died of gun shot injuries is not in dispute. There is no dispute that he received the injuries when he was in the Darwaja of his house. The Darwaja has shutters and in one of the shutters there was a opening, in the shape of a window, which was 3⅛' x 11/2'. The deceased Khetpal and the injured Mohanlal were hit through this window. All the three eye-witnesses claim to have identified the assailants by looking through this window. The house where the occurrence took place belongs to Kashi Ram, who is the father of the deceased. On the night of incident he was sleeping in the Darwaja. Dhanraj is the brother of Kashi Ram and resides in the same premises. He, too, states that at the time of the incident he was in the house. Kashi Ram and Dhanraj, being the inmates of the same house, are natural witnesses. The occurrence took place at about 9.15 p.m., when their presence is normally expected at the house, Mohanlal, himself, suffered gun shot injuries along with the deceased at the time of the incident and his presence could not, therefore, be doubted. Nothing has been elicited in the cross-examination of these witnesses that there was any animosity on their part to implicate the accused falsely. The witnesses had no animus or motive to involve falsely the accused Raj Kumar in a case of murder. 10. We may at this stage consider the contention of the counsel for the appellant that the visibility was near nil, the gun shot was fired from a distance and it could be a case of mistaken identity. We may in this connection, notice the nature of the injuries found on the body of Khetpal. The lacerated wounds which proved fatal had edges inverted with slight tatooing. The doctor took out five pellets from the dead body at the time of autopsy. The existence of the tatooing marks shows that the shot which hit the deceased must have been fired from a near distance, say, 6-7 feet. The lacerated wounds which proved fatal had edges inverted with slight tatooing. The doctor took out five pellets from the dead body at the time of autopsy. The existence of the tatooing marks shows that the shot which hit the deceased must have been fired from a near distance, say, 6-7 feet. The eye-witnesses also depose that the accused was standing 5-6 feet from the window of the main gate, when he fired the shot which hit the deceased. By referring to the dispersal, learned Counsel agrees that the gun shot must have been fired from at least a distance of 30 feet. We are unable to agree. All the injuries on the body of Khetpal were on the right side of his chest. They were located on the portions which were very close to each other. This indicates that the injuries were caused by pellets fired from a distance not more than 10 feet. The shots were fired from outside the house and travelled through the window which was only 11/4 feet wide and the target was visible to the assailants through this opening. The empty cartridges were recovered by the police from the place marked 'B' which is just outside the gate. The mere fact that Mohanlal was also hit by the same shot would not necessarily lead to an inference that the fire must have been made from a distance as suggested by the counsel for the appellants. The injuries on Mohanlal were abrasions on his left arm latero posteriorally. Mohanlal was also in the Darwaja and these injuries were caused to him by the g un shot which came travelling through the window. Mohanlal was standing adjacent to the deceased and, may be, his left arm was quite close to the chest of the deceased then the gun shot hit both of them. From the fact that besides deceased Khetpal, the witness Mohanlal was also hit by the gunshot, we are not prepared to accept the counsel's suggestion that atleast two gun shots must have been fired or that the gun shot which hit them was fired from a distance not less than 30 feet. Giving a margin to larger dispersal, the Additional Sessions Judge has held that the shot was fired from a distance not more than 12 feet. We affirm this finding. Giving a margin to larger dispersal, the Additional Sessions Judge has held that the shot was fired from a distance not more than 12 feet. We affirm this finding. In our view it was quite possible that both the deceased Khetpal and the injured Mohanlal received the injuries by a single gun shot which was fired at them from a distance not more than 12 feet. 11. On the question of visibility, true, the night when the incident took place was dark but as per the evidence of the witnesses the accused were standing just outside the house, only 5-6 feet from the window. They were within the range of visibility. Accused Raj Kumar was known to the witnesses from before. According to the evidence of Mohanlal it was Raj Kumar who told Kashiram to get Khetpal out of the house and that he would end his life. Kashi Ram requested Raj Kumar to go away. When Khetpal came there, he too, asked Raj Kumar to leave the place and go. It is thus evident that the accused and the witnesses both had known the identity of each other. Raj Kumar fired the gun shot which though travelled through the window, hit his target correctly. Villagers are accustomed to seeing things even in might and can easily identify those who are known to them from before & are within the range of visibility. Rajkumar was not a stranger & was very well known to the witnesses. Even if we ignore the chimney, as urged by the counsel for the accused, the eye-witnesses who were inside the house, a place darker than the one outside it from where the assailants fired the shot, were in better position to identify the accused already known to them. 12. Thus, we do not find any reason for not accepting the evidence of Kashiram, Mohanlal and Dhanraj, whose presence at the spot was natural and who had no animus what so ever against accused Raj Kumar to implicate him falsely. After going through the evidence of these witnesses we are of the view that their testimony can be safely acted upon against this accused and it establishes beyond a reasonable doubt that it was accused Raj Kumar who fired the gun shot which hit the accused Khetpal causing injuries on his chest which resulted in his death. After going through the evidence of these witnesses we are of the view that their testimony can be safely acted upon against this accused and it establishes beyond a reasonable doubt that it was accused Raj Kumar who fired the gun shot which hit the accused Khetpal causing injuries on his chest which resulted in his death. We, therefore, maintain his conviction and sentence for the offence under Section 302, I.P.C. for the murder of Khetpal. 13. Taking up the case of Jagmohan learned Counsel for the appellant has urged that he belongs to different village. His name is Rajmohan and not Jagmohan and it was a case of mistaken identity. He was not known to the witnesses from before. True, the witnesses have ascribed him a part that he asked accused Raj Kumar to fire the gun at the deceased but there is no supporting evidence available and it is not safe to sustain his conviction. After considering the evidence against this accused we find force in the contention of the learned Counsel for the appellant. His case is different from that of Raj Kumar. The witnesses say that he too was armed with a rifle but he did not use the same towards the deceased. He himself had no animosity or ill will against the deceased to exhort the other accused to fire the gun towards the deceased. As held by the Supreme Court in Jainul Hague v. State of Bihar, 1974 Cr.LJ 143 , "the evidence of exhortation is, in the very nature of things, a weak piece of evidence." We entertain a doubt about his identity and presence at the spot. May be he was present and for that we do not hold that the witnesses have told a lie and falsely implicated him but the possibility of his not being there cannot also be reasonably excluded. He may have been mistakenly identified. No weapon was recovered from him. We are inclined to extend to him the benefit of doubt. 14. The result is, the appeal of Jagmohan is accepted, his conviction and sentence passed by the learned Additional Sessions Judge is set aside and he is acquitted of the charges levelled against him. The appeal filed by Raj Kumar is dismissed and the order of conviction and sentence passed against him by the Additional Sessions Judge is upheld. 14. The result is, the appeal of Jagmohan is accepted, his conviction and sentence passed by the learned Additional Sessions Judge is set aside and he is acquitted of the charges levelled against him. The appeal filed by Raj Kumar is dismissed and the order of conviction and sentence passed against him by the Additional Sessions Judge is upheld. He is on bail and is directed to surrender to his bail bonds to serve out the sentence awarded to him.Appeal (of Jagmohan) accepted/ Appeal (of Raj Kumar) dismissed. *******