JUDGMENT V. P. Mathur, J. 1. Mr. Y. P. Singh, the then First Additional Sessions Judge, Agra while disposing of Sessions Trial No. 66 of 1977 convicted Pooran under section 302 of the IPC and section 25 (1) (a) of the Arms Act and sentenced him to imprisonment for life on the first count and imprisonment for one year on the second, making the two sentences concurrent. He also convicted Murari under section 302 read with 34 of the IPC and sentenced him to imprisonment for life. Against this Order passed on 18-9-1978 the present appeal has been preferred. 2. At the time of the occurrence, id is contended, that Pooran was armed with a country made pistol, with which he fired, fatally injuring Babu Ram; and Murari was armed with a lathi which he did not at all use on the spot. We may start with a small pedigree. There were four real brothers namely Parmatma, Pokhi, Tej Singh and Tundey. Nothing is known about Parmatma, but, it appears that Pokhi and his wife both died and one Savitri is their daughter. Pokhi had agricultural land in village Pura Jhoriyan, which is hamlet of Raipar Danda within the Sub-Division of Bab, district Agra. Tundey's sons were Hari Narain PW 1 and the deceased Babu Rani. Tej Singh had two sons i.e. Pooran and Murari who are both the appellants before this court. It has come in the evidence of Hari Narain, and there is no controversion of that fact, that Savitri had made some arrangement about the land left to her by her parents and the arrangement was that the land had to be cultivated and sown by Hari Narian, Baboo, Murari and Pooran. The arrangement was that the crops will be sown and grown by turns. It is in evidence that in the previous season, prior to this occurrence, the crops had been taken by Murari and Pooran, and naturally the standing crops at the time of the occurrence were to be taken by Babu Ram and Hari Narain. But it is said that two days prior to this occurrence, Murari came to the house of Hari Narain and Babu Ram and insisted upon getting the standing crops also, which was resented to by the deceased Babu Ram. But it is said that two days prior to this occurrence, Murari came to the house of Hari Narain and Babu Ram and insisted upon getting the standing crops also, which was resented to by the deceased Babu Ram. There was some little "marpit" between Babu Ram and Murari and then Murari went away after threatening Babu Ram with dire consequences within two days. This is said to be the motive for the present occurrence. This occurrence took place on 1.7-11-1976 at 2.45 P. M. in the vicinity of the shop which Hari Narain was running in village Poora Jhorian, which lies within the police station Inahat, of district Agra. Hari Narain PW 1, Babu Ram (deceased), Lachoo PW 2, Kedar PW 3, Basanta and Subba were sitting at the shop of Hari Narain and gossiping. The two appellants Murari armed with a lathi and Pooran with a country made pistol suddenly came there, and according to the first information report, challenged Babu Ram telling him that he had given him a beating because be was all alone two days back and now if he has any courage, he should come down. It is contended that upon this Babu Ram came down from the shop and there was an exchange of hot words between the appellant and Babu Ram. About ten paxes to the north of the shop on the village rasta which runs East-West Pooran shot with his pistol at Babu Ram causing him fatal injuries, as a result of which Babu Ram fell down and died on the spot. The witness and some other persons, who had come on the spot, gave a chase to the culprits who tried to run a few paces towards the east, but were apprehended on the spot. The lathi (Ext. 3) from Murari and the Tamancha (Ext. 1) from Pooran were taken by the witnesses. There was an empty cartridge inside the Tamancha which is (Ext. 2). Then Hari Narain took the dead body on a tractor to police station Pinahat which is four miles away from the scene of occurrence and lodged the First Information Report at 3.30 P. M. which is Ext. Ka-1. 3. 1) from Pooran were taken by the witnesses. There was an empty cartridge inside the Tamancha which is (Ext. 2). Then Hari Narain took the dead body on a tractor to police station Pinahat which is four miles away from the scene of occurrence and lodged the First Information Report at 3.30 P. M. which is Ext. Ka-1. 3. The investigation was taken up by PW 4 Rampal Singh Station Officer who visited the scene of occurrence the same day and prepared necessary papers, the next morning he obtained the blood stained and simple earth from the scene of occurrence and sealed it and on 1-12-1976 after completing the investigation, he submitted charge sheet (Ext. Ka-10) Hinder section 302 IPC against Pooran and Murari; and the next day the second charge-sheet under section 25 Arms Act was submitted against Pooran which was (Ext. Ka-11), after the sanction of the District Magistrate was obtained, vide, (Ext. Ka-12). 4. The post mortem examination on the dead body of Babu Ram was conducted by Dr. Rama Kant Sharma PW 5 who was Medical Officer in the District Hospital, Agra at 3.00 P. M. on tl 8-11-1976 and the following injuries were found on the dead body : "Gun shot wound of entry 4" x 2/10)" x chest cavity deep on outer side of left chest 5" away from left nipple. Margins were chymosed. No blackening seen. On probe direction was oblique. On internal examination left side of pleura was perforated. One metalic shot was recovered from left pleura. Upper lobe of right lung was perforated. Both chambers of the heart were empty. About 6 ozs. blood mixed with food material was found in the abdomen. The cause of death, according to the doctor, was shock and haemorrhage as a result of gun shot injury." Prosecution examined as witnesses of fact three persons namely Hari Narain as PW 1, Lachcho as PW 2 and Kedar as PW 3. One witness was examined by the court as court witness. He is Sri B. Rai, Ballastic Expert. The cause of death, according to the doctor, was shock and haemorrhage as a result of gun shot injury." Prosecution examined as witnesses of fact three persons namely Hari Narain as PW 1, Lachcho as PW 2 and Kedar as PW 3. One witness was examined by the court as court witness. He is Sri B. Rai, Ballastic Expert. It appears that the court at its own instance sent the bullet which was found in the body of the deceased and was taken out by the doctor at the time of the post mortem examination, the empty cartridge which was found inside the barrel of the tamancha taken from Pooran and the country made pistol itself to the Ballastic Expert for examination and report. Sri B. Rai submitted the report which is Ext. Ka-15, and he found that the cartridge was discharged from the barrel of the fire-arm, which he had examined and which had been taken from Pooran. He also found that the bullet winch was recovered from the dead-body of Babu Ram was fired by this fire-arm. 5. The defence was a denial of every fact. The contention of Pooran was that he had been falsely implicated on account of Partibandi and Ranjish. The same was contention of Murari, but Pooran additionally stated that the wife of Babu Ram was a corrupt woman and she was responsible for throwing Babu Ram inside a well and then falsely implicating Bengali Pradhan in the case. Without saying anything more, I feel that his suggestion perhaps was that Babu Ram died because his wife might have been responsible for his murder. No evidence in support has been adduced. 6. Undoubtedly, the incident took place in broad day light in presence of eye witnesses who have been examined is this case. There is testimony of Hari Narain to the effect that Murari and Pootran do not live in this village Pura Jhoriyan, but they live in mohalla Ram Nagar in Firozabad at quite a considerable distance from this village. They have agricultural land in this village, but according to Hari Narain it has been mortgaged to him and they are not cultivating the land. It appears, Savitri's land is being cultivated by these two appellants in alternate seasons. But it is clear that these persons do not live in this village. They have agricultural land in this village, but according to Hari Narain it has been mortgaged to him and they are not cultivating the land. It appears, Savitri's land is being cultivated by these two appellants in alternate seasons. But it is clear that these persons do not live in this village. In their statements they have shown their residence as Mohalla Ram Nagar, P. S. Firozabad Dakhia. The prosecution has come with an immediate motive for this occurrence and it is that two days prior to this occurrence, there was some sort of quarrel and "marpit" between Babu Ram and Murari in connection with the standing crops in the land of Savitri, and Murari had left the place after giving a threat. This fact is not admitted to the accused, but they also do not give out any other cause for enmity between the parties. No evidence regarding any partibandi and Ranjish has been adduced. It means, therefore, that there was no other cause for enmity between Babu Ram and Hari Narain on the one hand and the two appellants on the other and still according to the defence, the two appellants have been falsely implicated. Undoubtedly, the murder of Babu Ram did take place. This is established from the posi: mortem examination report, from prompt FIR, the recovery of the dead body by the Investigating Officer soon after the report of the matter in the Thana and the recovery of the blood-stained earth. Naturally if Babu Ram was murdered by some body else and not by the appellants, there should be a reason why the real culprits would be screened and Murari and Pooran who are first cousin of the deceased and Hari Narain, would be implicated. No such reason is forthcoming This is an indication of the fact that the occurrence did take place and Murari and Pooran were responsible for it. The motive suggested by the prosecution is established from the testimony of Hari Narain and from the circumstance that otherwise the implication of the two appellants in this case would not have been there if the parlies had not been on inimical terms. There is sworn testimony of the three witnesses. The motive suggested by the prosecution is established from the testimony of Hari Narain and from the circumstance that otherwise the implication of the two appellants in this case would not have been there if the parlies had not been on inimical terms. There is sworn testimony of the three witnesses. Only Hari Narain is related to the deceased and that is one of the reasons why his testimony would be taken as true because when an occurrence takes place in broad day light, the relatives will not screen the real culprits. There is some attempt to show that Babu Ram and Hari Narain had been convicted for the murder of Phooli's wife and the suggestion may be that Phooli's sons might have been responsible for this murder. This argument was rejected by the learned Sessions Judge and should be rejected by us also, because if Phooli's sons had actually murdered Babu Ram, Hari Narain would not have forgotten to mention them in the first informatics report. Even otherwise as is the trend arch-enemies are always sought to be implicated, whether or not they take part in the occurrence. The very fact that Phooli's sons have not been made accused in this case, although there is enmity between them and Babu Ram and Hari Narain, lends further support to the truth of the first information report's version and the prosecution case. 7. It is true that with respect to the incident that took place two days earlier, no report has been lodged with the police. The evidence shows that Babu Ram had given a beating to Murari and Murari was sore on that account and had gone away after threatening Babu Ram. Therefore if a report had to be lodged, it was for Murari to do so, and he did not lodge it. There was no reason for Baburam to have lodged a report because he could not apprehend any thing. Moreover, this was just a very minor incident and for such trivial incidents, reports are not lodged by village people. 8. Besides Hari Narain, there are: two witnesses Lachcho and Kedar. They are both residents of the same village. They had come to the shop of Hari Narain to make some purchases. Thereafter they sat down and started chattering. Such an occurrence is very common in the villages These witnesses cannot be deemed to be chance witnesses. 8. Besides Hari Narain, there are: two witnesses Lachcho and Kedar. They are both residents of the same village. They had come to the shop of Hari Narain to make some purchases. Thereafter they sat down and started chattering. Such an occurrence is very common in the villages These witnesses cannot be deemed to be chance witnesses. For their daily use requirements, they have to go to village shops and if they went to the shop of Hari Narain, there was nothing unnatural about it. Once the village people meet, whether it is at the shop or else-where and they have no other work to do, they sit down to talk about all sort of affairs. Such a conduct is very natural. It is really a co-incidence that while they were so busy in talking, the occurrence happened. There is no enmity between the appellants and these two witnesses. The mere fact that they had been convicted for some offences, will not make them unreliable. Even a convicted-accused is entitled to credence if his testimony is otherwise straight forward and believable. So far as the statements of these two witnesses are concerned, there is very little contradiction and the only noticeable contradiction that is discernible is that according to PW 1 Hari Narain and PW 2 Lachcho, on their arrival at the spot it was Pooran who challenged Baburam saying that two days earlier he had given a beating no bis brother and now if he dares, he should come out and bear the consequences. But according to the first information report and PW 3 Kedar it was Murari who said that two days earlier Baburam had beaten him because he was all alone and now if he had courage he should come out and face the situation. It is true that this is a contradiction and the first informant is going back upon his statement made in the first information report. But it cannot be said that what he states on oath and what witness Lachcho says is really false. It may be that the challenge was given by Pooran and not by Murari, and merely to implicate Murari for sharing the intention of Pooran, a different version might [have been recorded in the first information report. But it cannot be said that what he states on oath and what witness Lachcho says is really false. It may be that the challenge was given by Pooran and not by Murari, and merely to implicate Murari for sharing the intention of Pooran, a different version might [have been recorded in the first information report. Whatever may be the fact, the benefit of this contradiction will definitely go to the appellants, but on account of this minor contradiction, the whole story of the prosecution can not be thrown out when it finds corroboration from very important circumstantial evidence on the record. The spot arrest of the accused [persons is spoken to by all the witnesses. The learned counsel for the defence has tried to argue that the spot arrest was impossible and it is a made up case. In suggestions put to the witnesses during their depositions, it was given out that the appellants were arrested from their houses which means that they were arrested from Mohalla Ram Nagar, Firozabad. In other words the police would have gone all that distance to arrest them and then bring them to the Thana and lodge them in the lock up at 7-45 P. M. on 17-11-1976, the G. D. entry at no. 21 mentions the arrival of accused Pooran and Murari. It is also mentioned that Murari had some injuries on his person and for that purpose he had been sent for medical examination and the Mazroobi letter is being sent with a constable, while Pooran is being kept in the lock up. The occurrence took place at 2-45 P. M.. The report was lodged at 3-30 P. M. The Investigating Officer reached the spot and prepared the inquest memo at 5-15 P. M. Under these circumstances it would be too much to think that the arrest of the accused was made from some where else other than village Pura Jhoriyan, where the occurrence took place. On the contrary the evidence of the witnesses clearly shows that they were arrested in Pura Jhoriyan and even the Investigating Officer has said that when he reached the spot soon after lodging of the report, he found these two appellants in village Pura Jhoriyan under the custody of the village people and arrested them. In their statements under sections 313 CrPC the appellants have no where said that they were arrested from their house. In their statements under sections 313 CrPC the appellants have no where said that they were arrested from their house. No evidence has been adduced in this respect to show that they were arrested from any where other than Pura Jhoriyan ; such evidence was obviously possible. We agree with the learned Sessions Judge that it is a clear cut case of spot arrest of the accused-appellants by the village people and their being handed over to the Investigating Officer on his arrival in the village. The recovery of the country made pistol Ext. 1 from Pooran and of lathi Ext. 3 from Murari is established and the learned Sessions Judge acted very wisely in obtaining the Ballastic Expert's report in respect of the pistol, the empty cartridge which was inside the barrel and the bullet which was found in the dead body, and the report which we have already mentioned above, clearly establishes that it was fired from the pistol in question and was the cause of death of Baburam. It is clearly connected with Pooran and is a very strong piece of evidence to show that it was Pooran who fired the fetal shot. 9. In our opinion it is a very Blear case in which Pooran's guilt is satisfactorily proved beyond doubt and his conviction under section 302 IPC can not but be justified. 10. Our attention is drawn by the learned counsel to the inquest memo. It is with reference to the fact that on the basis of the first information report lodged by Hari Narain, two cases were registered. Case no. 191 was under section 302 IPC against both the appellants. Case no. 192 was under section 25 of the Arms Act against appellant Pooran alone. In the inquest memo, a mention of case no. 191 under section 302 IPC only is made and the name of Pooran with his alias has been shown. It lis argued that non mention of the other case and non-mention of the name of Murari will show that Murari and Pooran were not arrested on the spot and the Investigating Officer was waiting to get them arrested and hence in the inquest memo, no mention of the case no. 192 was made. Section 174 of the CrPC lays down the scope of the inquest report. The scope is extremely limited. 192 was made. Section 174 of the CrPC lays down the scope of the inquest report. The scope is extremely limited. The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances, or whether unnatural death has taken place, if so what is the apparent cause of the same. There is no other purpose except this and the inquest memo which was prepared in the present case was in respect of the demise of Baburam. Naturally, therefore if only case no. 191 which had been registered against both the appellants under section 302 IPC was mentioned. It was a very correct action, which the Investigating Officer took. Of course the non mention of Murari is there, but when there is reference of case no. 191 in the inquest memo, it becomes clear that the first information report was already in existence, a case had already been registered and it can easily be found that it was registered against both Pooran and Murari and the mere fact that Murari's name was not written in the inquest memo, will only show that the Investigating Officer did not think it either necessary or essential to do so of in any view of the matter he forgot to do so, but it will have no effect upon the merits of the case. Murari's case however calls for some consideration. It is true that he was the villain of peace. He fought out; with Baburam two days earlier and went away after hurling a threat. It can be assumed that he must have told his brother Pooran about the insult that ha had suffered at the hands of Baburam and on that account Pooran would have agreed to accompany Murari to teach a lesson to Baburam. We are not able to agree with the prosecution that all the way from Mohalla Ram Nagar Firozabad to the scene of occurrence Pooran would have come with the pistol in his hand. This is against the natural conduct. He would not have exposed himself taking unnecessary risk of arrest by moving with a country made pistol in his hand. Naturally he would have come with that pistol concealed some where in clothes etc. Three witnesses say that Pooran came with a pistol in his hand. This is against the natural conduct. He would not have exposed himself taking unnecessary risk of arrest by moving with a country made pistol in his hand. Naturally he would have come with that pistol concealed some where in clothes etc. Three witnesses say that Pooran came with a pistol in his hand. It only means that he had a pistol in his hand at the time of the occurrence and naturally after the occurrence, the witnesses will only say that one of the accused came with a lathi and the other with a pistol. It does not mean that the pistol was even exposed up to the time Baburam was shot at. It appears that it was suddenly whipped out and used. The circumstance in support of this view is that on a challenge given by Pooran, Baburam did not hesitate to come out of the shop and move towards Pooran. If he had already seen the pistol in Pooran's hand it was just natural that he would have tried to escape or would not have come out of the shop at all. It appears that perhaps it was Pooran who challenged Baburam and not Murari. Atleast two witnesses say so and one of them is the first informant who contradicts the first information report's version in this respect. We, therefore, hold that it was Pooran who challenged Baburam to come out and face the consequence, because he had two days earlier assaulted his brother and it is in evidence that Baburam came out of the shop. There was again exchange of abuses between the parties and Baburam moved towards the north about 5-7 paces when Pooran suddenly shot him down. It appears further that perhaps Murari was not aware that his brother was possessed of a pistol. He himself had come armed with a lathi. On the spot he did not use it and in accordance with the testimony of PWs 1 and 2 he even did not challenge Baburam. Under these circumstances, the prosecution suggestion that there was sharing of intention between the two appellants regarding the murder of Baburam is not acceptable. In our opinion the benefit should go to Murari and it will have to be held that section 34 of the IPC would not be applicable to this case. 11. Pooran's conviction has been made also under section 25 of the Arms Act. In our opinion the benefit should go to Murari and it will have to be held that section 34 of the IPC would not be applicable to this case. 11. Pooran's conviction has been made also under section 25 of the Arms Act. There is the District Magistrate's sanction to prosecute and the proof of the recovery of an unlicensed pistol from him is satisfactory. Therefore, his conviction on that charge is also justified. 12. In the result the appeal, so far as Pooran is concerned, fails and is hereby dismissed. His conviction under section 302 IPC and sentence of imprisonment for life and conviction under section 25 (1) (a) of the Arms Act and the sentence of one year's rigorous imprisonment are upheld. The two sentences would be concurrent. The appeal of Murari is allowed. He is not found guilty under section 302 read with 34 IPC and is acquitted. He is on bail and need not surrender. His bail bonds and sureties shall stand discharged. 13. Appellant Pooran shall surrender and will be taken into custody to serve out the sentences. 14. The record shall be transmitted back to the Court below for immediate compliance. Appeal allowed.