M. P. MATHUR, J. This appeal is directed against the judgment and order passed on 6-9-1978 by Sri P. K. Jain, the then VII Additional Sessions Judge, Farrukhabad in Sessions Trial No. 433 of 1977. The learned Judge convicted the two appellants Ram Dev under Section 302, I. P. C. and under Sections 307/34, I. P. C. and Subhakar under Section 302/34, I. P. C. and Section 307, I. P. C. simpliciter. Under Section 302 I. P. C. and 302/34, I. P. C. the two were sentenced to imprisonment for life and on the second count, each one was sentenced to five years rigorous imprisonment and the sentences were made concurrent. 2. The occurrence allegedly took place in the night between 12/13-6-1977 at about 10 or 10-30 P. M. in the court-yard of the house of the deceased Ramchandra in village-Gudera, which lies within the area of out- Post-Amritpur, Distt. Farrukhabad. At a distance of eight miles from the place of occurrence, the first information report was lodged by Ram Saran who claims to be an injured witness (PW 1) at 6-30 A. M. on 13-6-1977. It has now been ascertained that it was a dark night. The moon rise in Allahabad was at 137 A. M. and it has set the next morning at 13. 46 hours. Therefore, it is now the common case of the parties that the occurrence took place when there was no moon light available, but, it is said that a burning lantern was present on the wall of the Kitchen which was shedding sufficient light on the spot. 3. The prosecution story is that the first informant Ram Saran had three other brothers, namely, Ram Chandra (deceased), Ram Bharose and Raksha Pal. They all used to live in the same house with a common sahan but in different kothas. The Police Station is Rajepur, but since there is a reporting chauki also closer to the village at Amritpur, hence the first information report was lodged there. Towards the west of the house in front of their door, there is a piece of open land which these brothers were using a sahan land for tethering their cattle and keeping fodder etc. A platform was also in existence there since long and was used by them for sitting purposes. Towards the west of the house in front of their door, there is a piece of open land which these brothers were using a sahan land for tethering their cattle and keeping fodder etc. A platform was also in existence there since long and was used by them for sitting purposes. Ramdev and Subhakar (Sudhakar) also have their houses not very far away towards the south-west and they wanted to possess this land forcibly and this was the immediate cause for this occurrence. One day before this incident, Ramdev and Subhakar started dismantling this platform. Ramchandra (deceased) was present and asked them to desist. They stopped, further operations, but there was an exchange of abuses and the two appellants went away after threatening Ramchandra with dire consequences. It is contended that after that, these two persons assembled at the house of Ram Mohan and entered into a con spiracy. It is contended that with Ram Mohan. These four brothers were having enmity since very long, because some members of the family of Ram Mohan were involved in the murder of the father of the first informant and atleast one of them had been convicted and sentenced; and the sentence and conviction had even been upheld by the Supreme Court. 4. This occurrence took place in the night between 12/1-6-19/7 at about 10 or 10 30 P. M. , when the first informant alongwith his two brothers Rara Bharose and Raksha Pal was sitting on a charpoy towards the cast on his Rasoi inside the sahan and the deceased Ramchandra was sitting a few paces away towards the further South-East on the ground where he had spread a guilt (Razai;. A lighted lantern was present on the wall of the Rasoi. The accused-appellants Ram Dev and Subhakar (Sudhakar) alongwith Rabudi and Ram Mohan entered from the Western door of the sahan. It may be mentioned here that this door has no door planks, but only chauktiat. Rabudi is the brother in law of Ramdev. It is said that Ramdev and Subhakar were armed with guns, while Rabudi and Ram Mohan were possessed of country made pistols. A challenge was thrown by Ramdev that Ramchandra should be put to death and should not be allowed to escape. Simultaneously he fired fro n his gun at Ramchandra causing his injuries, as a result of which Ramchandra died on the spot. A challenge was thrown by Ramdev that Ramchandra should be put to death and should not be allowed to escape. Simultaneously he fired fro n his gun at Ramchandra causing his injuries, as a result of which Ramchandra died on the spot. Crying to attract the witnesses on the spot, the other three brothers ran to save themselves. Ram Saran tried to reach the protection of the walls of his kitchen, but in the meant Subhakar fired from his and towards him and caused him injuries. The other brothers could manage to go behind the protection of the walls of the rasoi of Rambharosa and although Ram Mohan and Rabudi fired towards them, they could not be injured On the alarm raised by the first informant and his brothers, the witnesses of the vicinity, namely, Ram Swarup, Brij Bhushan (P. W. 5) and Ram Naresh etc. reached on the spot flashing their torches. When they challenged the accused-appellants and their associates, they managed to escape through the Northern, dislapidated- wall of the sahan. 5. In the night due to fear, the first informant could not dare go to the out-post Amritpur. Therefore, he started the next morning and in the way had the report drawn out by Narnandan Lal and presented it at the out-post where the case was registered. 6. Investigation was started by Bharatlal Sharma, Station Officer Rajeypur, who reached the scene of occurrence the same day and prepared inquest memo of the dead body. Then after inspecting the scene of occurrence he prepared site-plan Ext. K. a-15 and recovered from the Sahan tiklis and four pellets, vide, memo Ext. Ka-13. The blood stained razai on which the deceased was sitting at the time of the occurrence and where he died, as well as one Chadar were taken into custody, vide Ext. Ka- 14. An attempt was made to apprehend the appellants and others but they were not in the village and hence processes under Sections 82 and 83, Cr. P. C. were obtained and execut ed on 22-6-1977. 7. Dr. V. K. Vatsal conducted the post mortem examination on the dead body of Ram Chandra on 14-6- 1977 at 4. 30 P. M. and found the following ante mortem injuries on the dead body : 1. Two gunshot wounds of entry 1/8" x 1/8" x muscle deep on the right side shoulder joint. 7. Dr. V. K. Vatsal conducted the post mortem examination on the dead body of Ram Chandra on 14-6- 1977 at 4. 30 P. M. and found the following ante mortem injuries on the dead body : 1. Two gunshot wounds of entry 1/8" x 1/8" x muscle deep on the right side shoulder joint. No tattooing or charring was present, edges were inverted, each of the two wounds were at a distance of 1- 1/2 "from each other. 2. A gun shot wound of entry 1/8" x 1/8" chest cavity on the left side of chest 3" away from left nipple at 9 0 clock position. No tattoo ing or charring was present and the edges were inverted. 3. Two gun shot wounds of entry 1/8" x 1/8" X scalp deep on the right side of forehead 2-1/2" above right ear. No tattooing or charring was present. The wounds were one inch apart. 8. On internal examination, he found the walls of the chest cavity, pericardium and heart lacerated. He recoverted two shots from the chest cavity and the skull. He found three pounds of pasty food in the abdomen. In his opinion, the death was due to shock and haemorrhage which was the result of the ante mortem injuries sustained and that it could have taken place about 1-1/2 days back. The first informant Ram Saran was medically examined by Dr. R. C. Gupta, Medical Officer Primary Health Centre, Rajeypur on 13-6-77 and was found possessed of the following injuries: (1) Abrasion 0. 6 cm x 0. 3 cm on the right side of the face 1. 5 cm away from the angle of the mouth. (2) Abrasion 3. 5 cm x 0. 3 cm on the anterior aspect of the right ear lobule. 9. In the opinion of the doctor, the two injuries were simple and had been caused by friction against some and hard substance and were about one day old. 10. After completition of the investigation, charge-sheet was submitted and the case started. 11. The prosecution examined three eye, witnesses, namely, Ram Saran (P. W. 1) who is also an injured in this case, Ram Bharose (P. W. 2) another brother of the deceased and Brij Bhushan (P. W. 5 ). All other witnesses including the two doctors were formal. 12. After completition of the investigation, charge-sheet was submitted and the case started. 11. The prosecution examined three eye, witnesses, namely, Ram Saran (P. W. 1) who is also an injured in this case, Ram Bharose (P. W. 2) another brother of the deceased and Brij Bhushan (P. W. 5 ). All other witnesses including the two doctors were formal. 12. On behalf of the appellants and others, the entire case was alleged to be false based on enmity. A report lodged on 12-6-77 by Ram Ladaita father Subhakar against Ram Saran, Ram Bharose, Ram Chandra and Ram Sarup under Section 302, I. P. C. was placed on the record. 13. The learned Sessions Judge found the entire case proved satis factorily beyond doubt, consciously taking note of the fact that the two eye witnesses, namely, Ram Saran and Ram Bharose were partisan witnesses and their testimony required contious and careful approach and appraisal against the present appellants and passed the impugned order. So far as the remaining two accused of the case were concerned, he came to the conclusion that they have been implicated in this case due to enmity and perhaps they did not take part in the occurrence. Therefore, to Ram Mohan and Rabudi he granted benefit of doubt and recorded their acquittal. No Government appeal against this order of acquittal has been preferred. 14. It is undoubted that Ram Chandra was subjected to a violent death in the night between 12/13-6- 1977. The prosecution contends that this took place at about 10 or 10. 30 P. M. when Ramchandra was sitting on a Razai in his sahan, while his three other brothers were sitting on a charpoy in the same sahan slightly away from him and were engaged in talks. The learned counsel for the defence has given various suggestions in this case. He contends that the occurrence did not take place at 10 or 10. 30 P. M. , but could have taken place early in the morning hours at about 2-30 to 4,00 A. M. Our attention is drawn to the condition of the stomach of the deceased which had been noted in the post mortem examination report. Pasty food weighing about 3 oz. was found in the stomach while the small and the large intestines were found full of gases and faecal matter. Pasty food weighing about 3 oz. was found in the stomach while the small and the large intestines were found full of gases and faecal matter. It is argued that the presence of pasty food in the stomach indicates that the occurrence did not take place at about 10 or 10. 30 P. M. It will only show that the deceased had taken something, which had partly digested and naturally that something could have been taken by him about three hours prior to his demise. Naturally if he had taken some thing at about 8. 00 P. M. which is the normal time, at which villagers take their food, the situation us is apparent from the post mortem examination report, would be there. But in this condition the death could not have taken place in the early morning hours the next day, because in that situation what ever he might have taken in the night would have already been digested and no pasty matter could have been found in the stomach. Therefore, the condition of the stomach as is mentioned in the post mortem examination report, goes against the suggestion of the learned counsel regarding the time of this occurrence. Then again as we have already mentioned earlier, the moon rise in the night was after 1-30 A. M. and it remained available with its light up to 13-46 hours. No body will try to commit an offence of this type in the moon light. With whatever angle we may see, the time of the occurrence as given by the prosecution, appears to be correct and there is no reason to discard the testimony of the witnesses including Brij Bhushan (P. W. 5) in this respect. The first information report was lodged at a distance of eight miles at 6. 30 A. M. after about eight hours. This is apparently a delayed lodging of the first information report, but Ram Saran (P. W. 1) clearly states that in the night due to fear he could not take courage to go the thana and this state ment made on oath goes unrebutted and uncontroverted, this gives sufficient explained for the apparent delay in the lodging of the first information report. In our opinion, the occurrence did take plase at about 10 or 10. 30 P. M. in the night between 12/1. In our opinion, the occurrence did take plase at about 10 or 10. 30 P. M. in the night between 12/1. 3-6-1977 and the report was lodged with properly explained delay, at 6. 30 A. M. on 13-6-1977 at a distance of eight miles from the scene of occurrence. 15. P. W. 5 Brij Bhushan has been discarded by the learned Trial Court as an unreliable witness and the reason given by him is that in his earlier statement made during the course of a dacoity case, in which he was involved, he had taken the defence that he was suffering from night blindness and on that account even if he could have come on the spot, he could not have seen or identified the accused-appellants on the spot. A visual test was taken of this witness in the Court by the learned Sessions Judge and we think that he stood the test well. Brit Bhushans contention is that he got himself medically treated and the defect in his eye has been cured and now he can see things in normal manner He was asked to see a photograph in the Court and a Calendar and we think that he gave correct answers about the contents thereof. Then earlier he was involved in a dacoity case and in order to show that he was not amongst the culprits, he took the plea that he was suffering from night blindness and therefore could not have taken part in the dacoity, that defence cannot be taken to be a ground to discard his testimony on the plea that he was really suffering from night blindness. The two appellants as well as their associate were all known persons. The two appellants belonged to the same village. Under these circumstances even with the slightest light available, it could have been possible for a witness like Brij Bhushan to have clearly identified them on the spot. A lighted lantern is said to have been present on the wall of the Rasoi of Ram Saran shown by letter c in the site-plan pre pared by the Investigating Officer. That will obviously shed sufficient light on the spot and known persons could very well be seen and recognised. Brij Bhushan says that he came with a torch which he lighted. That will obviously shed sufficient light on the spot and known persons could very well be seen and recognised. Brij Bhushan says that he came with a torch which he lighted. The learned Sessions Judge has also discarded the testimony of Brij Bhushan, holding that he could not have reached the spot to see the culprits still standing on the spot after having committed the occurrence. The evidence is that the culprits entered by the Western door into the sahan, challenged the four brothers and then the brothers started crying to attract the witnesses. Meanwhile one of the culprits fired at Ram Chandra, the other three brothers ran for safety. They were fired at. One of them was injured and others could manage to escape. The evidence of Brij Bhushan is that on hearing the cries he and others ran and came to the scene of occurrence. In the site-plan the lapse of Ram Swarup and Brij Bhushan has been shown being towards the North-West of the scene of occurrence and Brij Bhushans chappar has been mentioned by letter g. This is not a long distance and in our opinion as soon as the four brothers would have raided a cry, Brij Bhushan and Ram Sarup could have come on the spot and atleast witnessed a part of the occurrence. 16. That being the situation, there was no justification in discarding the testimony of Brij Bhushan. Even otherwise also if we ignore Brij Bhushan for the time being we are still left with the testimony of an injured witness Ram Saran and his brother Ram Bharose (P. W. 1) and (P. W. 2 ). They are of course very much interested and partisan witnesses. But merely on that ground, their testimony cannot be discarded. The only rule of prudence which could be deemed now to have hardened into a rule of law, is that the testimony of such witnesses should be taken with greater care and caution. It should also not be forgotten that these two persons had no reason to screen the real culprits. Of course alongwith the real culprits they could falsely implicate some of their enemies but once we come to the conclusion that they had seen the occurrence and the culprits were known to them, it would be impossible to hold that they would screen the real culprits and implicate only the enemies. Of course alongwith the real culprits they could falsely implicate some of their enemies but once we come to the conclusion that they had seen the occurrence and the culprits were known to them, it would be impossible to hold that they would screen the real culprits and implicate only the enemies. It is contended on behalf of the defence that the injuries of Ram Saran are not the injuries caused by firing. Our attention is drawn to the statement of Dr. R. C. Gupta who has been examined in this case as P. W. 3 and he says that these injuries were caused by friction against some hard substance and that it is not possible for them to have been caused by friction against the pellets, although pellet is also a hard substance. No reason for this opinion has been given by the doctor. If a pellet or two just graze skin and fall down, such injuries could undoubtedly be caused. The size and the seat of the injuries does show that the doctors opinion in this respect is a correct opinion. The law in this respect is very clear and it should be restated that the medical opinion is only an opinion unless it completely rules out the eye-witness version, the testimony of the eye-witnesses is preferably to be believed and accepted. 17. We are not in agreement with the opinion of the doctor that the two injuries to Ram Saran could not have been caused, if he had been hit by two stray pellets which just graze his skin on two portions of his body and then pass off. Such a situation is possible and in this case where the testimony of the witnesses is that as soon as firing was resorted towards Ram Chandra, the other brothers cried out and ran for safety and in that process firing was resorted to by Subhakaran (Sudhakar) aimed at Ram Saran and the only damage that it could cause to him was these grazing injuries in the nature of two abrasions one on the outer side of his face and the other on the anterior aspects of his right ear lobule. Undoubtedly both of these injuries could have been caused to him by a single shot. 18. Undoubtedly both of these injuries could have been caused to him by a single shot. 18. Similarly, a lot of argument has been advanced to convince us that the post mortem examination report shows that deceased Ram Chandra suffered three injuries, not as a result of a single firing, but as a result of atleast two firings. Our attention is drawn to the testimony of Dr. Vatsal (P. W. 6) who says that the injuries of the deceased are probably a result of two firings, while the possibility of their having been caused by a single firing is not also ruled out. He is of the opinion that injury No. 2 which is a gun shot wound of entry on the left side of chest 2" away from the left nipple and one of the gun shot wounds, on the right side of the shoulder joint, (injury No. 1) could be a result of a single firing; while injury No. 3 and the other gun shot wound of injury No. 1 could be a result of the second firing. We again do not agree. All these injuries have been caused from a considerable distance and the evidence shows vide, the testimony of Ram Saran that firing was resorted to from atleast a distance of five or six paces, which will mean about 10 to 12 feet. From sued a distance, there would definitely be sufficient disposal. The two appellants are said to have been armed with gun. We do not know whether they were country made guns or regular licensed guns. The firing upon the deceased is said to have been made by Ramdev. His position was at point h of the site plan while the deceased was sitting at point a, which is towards the South East from. point h. We do not know as to what side the deceased was facing. It is not improbable or impossible that all these injuries mentioned by the doctor under three different heads in the post mortem examination report, could have been caused by the dispersed pellets of the same single firing. In our opinion they were so caused. Therefore, there is nothing on the record to show that the medical evidence in this case is against the oral testimony. On the contrary it supports the oral version and to that extent it lends support to the witnesses. 19. In our opinion they were so caused. Therefore, there is nothing on the record to show that the medical evidence in this case is against the oral testimony. On the contrary it supports the oral version and to that extent it lends support to the witnesses. 19. The testimony of Ram Saran who is injured in this case is the testimony of a competent witness; so also the testimony of Ram Bharose is of a competent witness inasmuch as he is not a chance witness, but, a person whose presence on the spot is very natural and probable. All these four brothers live in a different portions of the same house in separate kothas and chappars and share a common sahan. The occurrence took place in the summer month of June. It is very natural that at about 10 or 10. 30 P. M. the inmates of the house would be sitting and gossiping inside their sahan and under the open sky during the summer month. There is nothing on the record to show that any of these witnesses was not present in the village. Of course a suggestion to that effect has been given to Ram Saran, which he has denied, but no evidence to that effect has been brought on the record and such a suggestion has not even been given to Ram Saran or Brij Bhushan. We are, therefore, of the opinion that both these brothers were present when this occurrence took place and they are reliable witnesses of the occurrence. An other suggestion given to the witnesses was that Ram Chandra suffered injuries while he was sleeping. The very nature of the injuries sustained and the seat of these injuries will clearly show that they could not have been sustained by anybody in a lying down condition and again there is nothing on the record to confirm this suggestion. A very wide suggestion is also made to the effect that the occurrence did not take place inside the house. This suggestion has been given to Ram Bharose and the attempt was even to dispute the scene of occurrence. It has been clearly denied the facts and circumstances if the case go to show that the occurrence did take place inside the house, as is alleged by the prosecution. The Investigating Officer found pellets and tiklis lying in the sahan and also pellet marks on the walls. It has been clearly denied the facts and circumstances if the case go to show that the occurrence did take place inside the house, as is alleged by the prosecution. The Investigating Officer found pellets and tiklis lying in the sahan and also pellet marks on the walls. He found the de id body also at point a. The last suggestion given to the witness Ram Saran is that actually there was a dacoity in the house and in that connection, the dacoits shot Ram Chandra dead and caused injuries to Ram Saran. Nothing has been looted. No body comes forward to say that there was any dacoity in the village in that night. The evidence, the suggestion has again not been sought to be proved and is an empty suggestion. 20. After going through the entire evidence of Ram Saran injured and Ram Bharose and after very carefully and cautiously considering it, we are of the opinion that the prosecution version of the matter is absolutely correct and that the occurrence did take place, as is alleged by the prosecution. The possibility of false implication of some of the enemies is there and considering that fact the learned Sessions Judge has already given benefit of doubt to two of those persons who were involved in this case for very valid reasons, the correctness of which we endorse, but, at 10. 30 P. M. in the night when a lighted lantern is present, it will not be possible for us to agree that the real culprits could not be identified. Considering all these circumstances we are of the opinion that the guilt of the appellants was satisfactorily made out on both the charges levelled against them and that they have been rightly convicted and sentenced. 21. In the result, the appeal fails and is hereby dismissed. The con viction of the appellants as returned by the learned Additional Sessions Judge, Farrukhabad vide order dated 6-9-1978 and the sentences awarded to them are upheld. These two persons Ram Dev Subhakar (Sudhakar) are on bail. They shall surrender and be taken into custody forthwith to serve out their sentence and their bail bonds and sureties shall be cancelled. Appeal dismissed. CHIRAG .