Judgment M. P. Varma, S. B. Sinha, JJ. 1. All the four appeals arise out of the same judgment and for the sake of convenience and with the consent of the parties, they have been heard together and are being disposed of by this judgment. 2. Appellant Umesh Singh of Cr. Appeal No.481 of 83 has be found guilty of the charges under Sec.302/34 of the Indian Penal Code (hereinafter referred to as the Code) and has been sentenced to suffer imprisonment for life. In other appeal No.618 of 83 appellant Ishwar Singh has been held guilty of the charge under Sec.302/34 of the Code and has been sentenced to suffer imprisonment for life. He has been further held guilty of the charge under section 307 of the Code and sentenced to suffer rigorous imprisonment for seven years under this head. Appellant Ramchandra Singh of Cr. Appeal No.518/83 has been found guilty of the charge under Sec.302 of the Code for causing death of Janki Sah and he too has been sentenced to suffer imprisonment for life under this charge. The other two appellants Narendra Singh of Cr. Appeal no.578 of 83 and Kesho Lohar of Cr. Appeal No.587/83 have been jointly held guilty of the charge under Sec.302 of the Code for causing the murder of ramjanam Singh and both of them have been sentenced to suffer imprisonment for life. 3. The case of the prosecution arose on the statement of PW-1 manki Sah. It is stated that while he was in his shop along with his brother janki Sah, the deceased and his father Munshi Sah (who has been examined as pw-4), the aforesaid accused persons variously armed came over and resorted to firing. This incident happened on 7-7-1975 at about 12-30 p. m in the day. The other deceased Ramjanam Sah, who happened to be a neighbour of the informant was also then present in the shop. Among the accused, Narendra Singh was armed with a pistol, accused Umesh Singh was carrying Chhura and other three accused Ramchandra Singh, Ishwar Singh and Kesho Lohar were carrying guns. No sooner they arrived in the shop, accused Ramchandra is said to have opened fire twice hitting Janki Sah in his chest and also on his shoulder. Janki Sah dropped down dead on the spot in the shop. No sooner they arrived in the shop, accused Ramchandra is said to have opened fire twice hitting Janki Sah in his chest and also on his shoulder. Janki Sah dropped down dead on the spot in the shop. Accused Ishwar Singh also fired with his country made gun, which hit PW-4 Munshi Sah, father of the informant and Munshi Sah raised a cry. In the meantime, Ramjanam Sah, who was there in the shop made attempt to escape, but accused Narendra Singh and Kesho lohar fired at him. Ramjanam Singh fell down on the door of the female-apartment of the hose of the informant, which has been described as Janani Kota. Further case of the prosecution is that on the cry raised, PW-3 Rajendra Pd. , pw-5 Urmila Devi and at a few others came running and they had seen the firing resorted to by the accused persons. Seeing the other villagers arriving at the scene, the accused persons made good their escape. Information was sent to the Police Station and it is said that the Officer incharge arrived in the village the same day at about 5 p. m. and recorded Fardbeyan of PW-1 Maniki Sah, on the basis of which formal FIR was drawn up and the case against all the aforesaid accused (they were named in the Fardbeyan) was registered. The police took up investigation, despatched the dead-bodies for post mortem examination and after completing the investigation, submitted charge-sheet against all the aforesaid accused, who were thus, put on trial. 4. The prosecution, in order to substantiate the charges made against the aforesaid accused, examined 9 witnesses, out of whom PWs-1, 3, 4 and 5 are said to be the eye-witnesses. PW-4 Munshi Sah is the father of the informant manki Sah and as stated above he too, had received gun-shot injury in the occurrence. The next witness PW-2 is said to have arrived on Hulla and he has given a hear say version of the incident. He heard about it and also the names of the accused persons from the informant. PW-6 is a formal witness. He has proved the seizure-list said to have been prepared by the Police Officer in course of the investigation. PW-8 Mr. Murat Ram has been examined to prove the inquest report prepared and some other documents including the case diary prepared by the police. PW-6 is a formal witness. He has proved the seizure-list said to have been prepared by the Police Officer in course of the investigation. PW-8 Mr. Murat Ram has been examined to prove the inquest report prepared and some other documents including the case diary prepared by the police. It has been so done as the Investigating Officer died before the trial could begin and the case-diary was placed in evidence through this witness in order to avoid any prejudice to the accused in their defence, which has been marked Ext 7. PW-7 and PW-9 are the two doctors. PW-7 Dr J. N. Pandey held post mortem examination on the two dead bodies of Ramjanam Sah and Janki Sah and PW-9 Dr. Mahabir Prasad had examined the injuries found on PW-4 Munshi Sah. ]n appeal before us it has been submitted that accused persons had taken their defence at the trial stage that the Naxalite of the area had visited the shop and they, on some altercation, for collecting donations, resorted to firing causing the death of both, Ramjanam and Janki and that these accused persons have been falsely implicated due to past litigation pending between them. A defence witness has also been examined to prove some documents, which are Ext. A, B and B/l in support of the fact that there was some case between the parties. Ext. A, however, is an affidavit, filed by one Jagannath sah of the village and this Jagannath has not been examined in court and no particular relevancy has been shown in course of the argument before us. 5. The learned Advocate has however, attacked the findings of the learned judge mainly on the ground that the informant in court as well as in the earlier statement in the Fardbeyan, has given out that several villagers ran on hearing the Hulla. He lias further stated that he gave out the names of the accused persons to all those who came to the shop. But no independent witness has been examined to testify this fact. In other words, it has been contended that all the eye-witnesses namely, PWs-1, ,4 and 5 are closely related to each other and their evidence should outright be rejected on the ground of relationship. It has also been submitted that PW-3 is a school going student and he had gone to school on that date. In other words, it has been contended that all the eye-witnesses namely, PWs-1, ,4 and 5 are closely related to each other and their evidence should outright be rejected on the ground of relationship. It has also been submitted that PW-3 is a school going student and he had gone to school on that date. PW-l had made a serious contradiction while narrating about the conduct of this witness by stating in court that this boy had not gone to school on that day, whereas he himself (PW-3) stated that he had gone to school, made his attendance and thereafter ran away, came back to his house and that he was taking his meal when he heard the incident and ran to the shop and could see these accused persons resorting to firing. 6. In the last, it has been submitted that from the evidence of this very witness PW-3 it is gathered that Janki Sah had gone back to his shop soon after taking his meal and it was not expected to find semi-digested food when he was killed in the day at 12-30 p. m. While referring to this aspect of the case, the learned Advocate further submitted that Doctor (P-W 7), who conducted the autopsy over the dead-body of both Ramjanam and Janki gave that the time of death elapsed from the time of examination would be forty-eight hours and that it has been argued that this evidence of the doctor falsifies the prosecution story of the incident taking place on 7-7-1975 in the day, as the post mortem was conducted on the day following on 8th July, 1975. 7. We have given serious consideration to the points raised and at the very outset we would like to state that non-production of the villagers in this case would not defeat the prosecution story. We may, however, state that the villagers who came on hulla may not be deemed to be material witnesses for the purpose of unfolding the story narrated by the prosecution, i. e. the informant of this case. It may further be added here that all the accused persons belong to the same village and it is quite likely that the other villagers being disinterested either in the prosecution or the accused might not take upon themselves to come and depose in the case as hear-say witnesses of the incident. It may further be added here that all the accused persons belong to the same village and it is quite likely that the other villagers being disinterested either in the prosecution or the accused might not take upon themselves to come and depose in the case as hear-say witnesses of the incident. So far PW-3 is concerned, true it is that according to PW-l, he had not gone to school. This off quoted statement of the informant will not take away the credibility of PW-3 has said that he had gone to his school to give his attendance at 10-30 a. m. and soon got back. Quite likely P-W 1 might not have noticed his going to school and finding him back in the house of the informant that PW-3, did not go to school that day. But apart from it P. W.3 has himself said that he had joined his school and left back to his house for taking his meal. There is no other evidence coming forth, for us to hold that P. W 3 did not not get back it he had gone to file his attendance. No school teacher has been examined, nor any boy to state that P. W. J was in the school for the whole day bringing any discredit to his evidence. 8. Further criticism has been raised about this witness that at the time of giving evidence in court he was of eighteen years of age and at the time of the incident he was roughly of twelve years of age. In other words, the learned advocate for the appellants wanted to contend that he was a child at the time of the incident. Even assuming that he was only of twelve years of age, the court, while recording his evidence, found him to be quite competent to depose and nothing has been brought on record for us to hold that he was not capable of deposing regarding the incident. His evidence could not be impaired even in the cross-examination and could state precisely the whole of the incident corroborating the informant P. W.1 and other eye-witnesses. In that circumstances we hold him to be a quite competent and natural witness along with the informant and also P. W.4 Munshi Sah, who is one of the victims of the incident. His evidence could not be impaired even in the cross-examination and could state precisely the whole of the incident corroborating the informant P. W.1 and other eye-witnesses. In that circumstances we hold him to be a quite competent and natural witness along with the informant and also P. W.4 Munshi Sah, who is one of the victims of the incident. His case is that he was hit by Jshwar Singh on his waist. He was medically examined by p. W.9 Dr. Mahesh Prasad and had found gun-shot injury on his body. This medical evidence supports, rather corroborates the testimony of this witness, that he was present at the scene of the occurrence where the firing took place in the manner as alleged by the prosecution. 9. The learned Counsel for the appellant, while commenting upon the evidence of P. W.5 submitted that the was an old lady and according to her own statement she had a child in her lap. She gave out that she had seen the accused persons going to the shop of the informant Manki and she had followed them and had seen the entire incident. The only attack on the credibility of this witness is that it was not expected that she would follow the accused being so old carrying the child in her lap. We only state we could not see any improbability in it. She has her house nearby. When she noticed the accused persons going with pistol, revolver and Chum in their hand, naturally she got suspicious. She is one of the relations of the prosecution party. She is grand-mother of p. W.1. It has also come in evidence that the parties were on litigating term. It has been said by the informant that only 15-20 days back there was a theft case and in that he had raised suspicion against the accused Umesh, Ishwar and ramchandra. In that situation it was not unlikely that P. W.5 getting suspicious about the movement of the accused, followed them and could see the incident as narrated by her. The court below rightly placed reliance on the testimony of this witness as well. 10. Pw-1 is the informant himself. The police officer had, on getting information, rushed to the village and he gave his statement soon after the incident, with the gap of hardly 4 hours. The court below rightly placed reliance on the testimony of this witness as well. 10. Pw-1 is the informant himself. The police officer had, on getting information, rushed to the village and he gave his statement soon after the incident, with the gap of hardly 4 hours. We do not find any ground to hold that he concocted or made any false statement implicating these accused persons. Rather in view of the enmity between the parties and the case of theft which was brough about only a few days back seems to be immediate motive for committing the offence. In these circumstances, we feel that the trial court rightly held them guilty of the charge of causing the death of both Janki and Ramjanam. 11. At this stage, the learned Advocate submitted that the evidence with regard to causing the murder of Ramjanam is discrepant in the sense that prosecution could not affirmatively point out, who, out of the two accused namely, ramchandra and Kesho caused his death. The evidence is that both opened fire. Narendra was armed with a pistol. Keso was holding a gun. The doctor conducted autopsy over the dead body of Ramjanam Sah and found the following ante mortem injuries : (i) Several punctured wounds with inverted margins on the posterior surface of the left upper arm and elbow and posterior on the b ick on the chest and lumber region 16/" to 1/7" diameter. He removed two pellets from left upper arm tissues and chest muscles. On dissection he found the following : (a) Left lung cavity contained about 12 oz. of blood and blood clots. Three pellets were removed from the left lung cavity. Left lung cavity was punctured at several places. (b) Left 5th, 6th, 7th and 8th ribs were fractured laterally. (c) Pericardium and both ventricles of the heart were punctured. Three pellets were removed from the heart tissues. (d) Some of the diaphragm were punctured. Upper surface of the liver and stomach were also punctured. Two pellets were recovered from liver and stomach. 12. The doctor (PW-7) on post mortem examination of the dead-body of of Janki Sah noticed the following ante mortem injuries :- (1) Five punctured wounds with inverted margins with blackening of the margin of ,1/4" diamet r on the right side of the chest. Two pellets were recovered from liver and stomach. 12. The doctor (PW-7) on post mortem examination of the dead-body of of Janki Sah noticed the following ante mortem injuries :- (1) Five punctured wounds with inverted margins with blackening of the margin of ,1/4" diamet r on the right side of the chest. (2) One punctured wound with irregular and inverted margin (wound of exit) 1/4" diameter present below the left Axilla. (3) Punctured wound of 4" diameter with inverted margins present on the right thigh. One bullet was recovered from the thigh muscle. On dissection he found the following :- (a) Right lung cavity contained about 7 oz. of blood clots and blood. Right 4th, 5th and 6th ribs were fractured anterially. (b) Right lung was punctured at three places. (c) Pericar Hum was punctured both ventricles of the heart were also punctured. Two pellets were removed from pericar-dium. (d) Right lung cavity contained about 10 oz. of blood and blood clots. Right lung was punctured at 4 places. Right 3rd and 4th ribs were fractured in mid-Axillary line. One bullet was recovered from the right lung cavity. (e) Some of diaphragm and upper portion of liver and stomach were punctured. 13 The doctor has said that both the victims died due to shock and haemorrhage as a result of the injuries sustained by them. However, since it is not clear from the evidence on the record that whose shot actually caused the death of Ramjanam. In absence of any specific finding that it was Narendra singh or Kesho Lohar who gave the fatal blow resulting the death, it would be difficult to hold them guilty of the charge under Sec.302 of the Code. But none the less, the evidence is that one fired pistol and the other fired his gun. On looking to the post mortem report and the injury sustained by Ramjanam sah, it must be held that they caused grievous hurt, which accidently proved fatal resulting in the death of Ramjanam Sah. In that situation both of them cannot escape punishment under Sec.326/34 of the Code. We, therefore, alter the conviction of the appellants Narendra Singh (in Cr. Appeal No.578/83)and Kesho Lohar (in Cr. Appeal No.587/83) from Sec.302/34 to Section 326/34 of the Code. In that situation both of them cannot escape punishment under Sec.326/34 of the Code. We, therefore, alter the conviction of the appellants Narendra Singh (in Cr. Appeal No.578/83)and Kesho Lohar (in Cr. Appeal No.587/83) from Sec.302/34 to Section 326/34 of the Code. It has been pointed to us by both the counsel for the parties that the accused Narendra and Kesho had been behind the bar for naerly three years. Taking an over all situation of the case, as discussed above, we do not propose to send them back to jail and the period of imprisonment is reduced to the period already suffered by them with further imposition of fine of Rs.1000/- each which, in the instant case will meet the ends of justice. So far the other accused Umesh Singh and Ishwar Singh are concerned, they have been convicted of the charge under Sec.302/34 of the Code for causing the murder of Janki and Ramjanam. Then complicity in the crime is well proved but in the circumstance, their conviction is also altered to Sec.326 read with section 34. Both Umesh Singh and Ishwar Singh are also held guilty of the charge under Sec.326/34. When considered the question of passing the order of sentence, we have been told they too had already suffered imprisonment, and therefore, instead of sending them back to jail, they too are to pay a fine of rs.1000/-. 14. There is another charge against Ishwar Singh under Sec.307 of the Code for causing gun shot injury to PW-4 Munshi Singh. Under this head the court below has sentenced him to suffer imprisonment for seven years. So far the conviction of Ishwar Singh under Sec.307 of the Code for causing injury to PW-4 Munshi Singh is concerned, we fined from the judgment that the trial court was very much hesitant in accepting the statement of PW-4 with regard to causing injury to him by gun shot. In these circumstances, it would not be safe to hold him guilty under Sec.307 of the Code and he is acquitted of the charge. 15. Coming to the case of Ramchandra Singh, he has been found guilty under Sec.302 of the Code. The case is that -he was holding a D. B. B. L. gun and had fired twice on Janki, elder brother of informant Manki. 15. Coming to the case of Ramchandra Singh, he has been found guilty under Sec.302 of the Code. The case is that -he was holding a D. B. B. L. gun and had fired twice on Janki, elder brother of informant Manki. He was hit in the chest as well as on his shoulder and dropped down in the shop. This fact has been testified not only by the informant, but also by other witnesses including PWs-3 and 5. He has been named even in the FIR by Manki, who is his brother. We too do not find adequate reason to reject the testimony of this witness and we accept the finding of the trial court that it was accused ramchandra who gave fatal blow to Janki causing his death. Thus, we find no merit in the appeal of Ramchandra Singh. His appeal is accordingly dismissed. 16. In the end, we will state that in case if the fine is imposed on the appellants are realized, part of it shall be paid to PW-1 Manki and the other part to the family members of the deceased Ramjanam Sah. The court below will find out the surviving relations of Ramjanam to receive the payment in court. 17. To conclude, we find and hold that appeal of Ramchandra (Cr. Appeal No.518/83) is dismissed and the appeal of other accused appellants i. e, cr. Appeal Nos.481, 578 and 587 of 1983 are allowed in part with the modification in sentences, as discussed above. Decided accordingly.