M. M. LAL, J. ( 1 ) - This is an appeal against a judgment and order dated 8. 12. 1978 passed by Sri K. G. Rastogi, the then 1st Addi. Sessions Judge, Rampur by which he has convicted all the aforesaid seven appellants under sections 452, 148 and 302/149, I. P. C. and has sentenced each of them to undergo three years R. I. two years R. I. and imprisonment for life respectively thereunder. ( 2 ) SHIV Dev Singh, who was accused in this case before the court below but was acquitted, had five sons, namely Joginder Singh, Lakhvendra Singh and Veer Singh appellants and Mahendra Singh and Kapoor Singh. Sadhu Singh alias Chhota appellant is the brother in law (wifes brother) of said Shivdev Singh. One Narayan Singh had two sons, namely Sewa Singh and Gurdev Singh appellants and a daughter named Smt. Satwant, who was married to aforesaid Mahendra Singh, son of Shivdev Singh. The said Narayan Singh had a brother named Sadhu Singh. Gurmeet Singh appellant is the son of said Sadhu Singh. Piara Singh, who had been murdered in this case had six sons, namely P. W. 1 Gulzar Singh, P. W. 2 Hazara. Singh, Balkar Singh deceased, Darshan Singh deceased. Sewa Singh and Karnail Singh. Smt. Surendra Kaur P. W. 3 is the wife of P. W. 2 Hazara Singh and Km. Amarjeet Kaur alias Guddi, a minor girl aged about three years and who was injured, is their daughter. Smt. Amarjeet Kaur is the wife of P. W. 1 Gulzar Singh informant. Smt. Teja Kaur is the wife of Piara Singh deceased. ( 3 ) ABOUT four and half years prior to this incident Shivdev Singh had mortgaged his land measuring 1 acre, for a sum of Rs. 1600/- to Gulzar Singh informant, who had sown Charit crops over the said land. According to the prosecution Shivdev Singh and his sons on 7. 7. 1973 started ploughing the said land after uprooting the crops standing therein. The informant and his companions went to that field and restrained Shivdev Singh and his sons from doing the aforesaid, which led to a fight resulting in the murder of Mahendra Singh and Kapoor Singh, i. e. two sons of Shivdev Singh. 7. 1973 started ploughing the said land after uprooting the crops standing therein. The informant and his companions went to that field and restrained Shivdev Singh and his sons from doing the aforesaid, which led to a fight resulting in the murder of Mahendra Singh and Kapoor Singh, i. e. two sons of Shivdev Singh. For the said murder Gulzar Singh informant, his brothers P. W. 2 Hazara Singh, Balkar Singh deceased, Sewa Singh and Karnail Singh as also his uncle Lal Singh, his cousin Gurmeet Singh, his father Piara Singh deceased and co-villagers Charan Singh, Chanan Singh and Malook Singh were prosecuted. In the said case whereas Karnail Singh, Lal Singh and Gurmeet Singh were acquitted, remaining eight persons were convicted and sentenced to life imprisonment. Against the said conviction and sentence the said eight persons had filed an appeal, which was pending in the High Court. During the pendency of the said appeal before the High Court the said persons were enlarged on bail. Their release on bail was not relished by Shivdev Singh and his relations. They used to stare at the said persons whenever they happened to see them. ( 4 ) PIARA Singh deceased and his sons were living in the same house. There was an open courtyard inside the said house. There were three north faced rooms towards the southern side of the said house. Whereas the middle room was used for living, the adjoing two rooms were used for tying cattle and storing the straw. In the north west side of the said house there were two east facing kathas. In front of a portion of the said kothas there was a Chhappal towards east. There was a cattle through and a thresher towards the southern and south east side of the said courtyard. The exit of the said house was towards the south west but there was no door fixed at that place. ( 5 ) ON the fateful night, i. e. on the night of 1/2 July, 1977 three deceased persons and their family members were sleeping in their house. Whereas Balkar Singh deceased was sleeping on the roof of the east faced katha, Piara Singh deceased, Darshan Singh deceased, Gulzar Singh informant and his wife Smt. Amarjit Kaur, Kamail Singh, Smt. Teja Kaur, Hazara Singh P. W. 2 and his wife Smt. Surendra Kaur were sleeping in the courtyard. Whereas Balkar Singh deceased was sleeping on the roof of the east faced katha, Piara Singh deceased, Darshan Singh deceased, Gulzar Singh informant and his wife Smt. Amarjit Kaur, Kamail Singh, Smt. Teja Kaur, Hazara Singh P. W. 2 and his wife Smt. Surendra Kaur were sleeping in the courtyard. It was purnmasi on that date, i. e. full moon night on that date. Besides the same one lantern was hanging at the north east corner of the Chhappar placed in front of the cast faced kothas and another lantern was kept burning on a drum in the courtyard. ( 6 ) ACCORDING to the case of the prosecution, on 2nd July, 1977 at about 2. 30 a. m. Gurmeet Singh appellant, armed with rifle, Joginder Singh and Lakhvender Singh appellants carrying guns, Sewa Singh armed with his revolver, Veer Singh, Sadhu Singh alias Chhota and Gurdev Singh appellants and Shivdev Singh armed with swords came there. They had torches which they were flashing Entering the courtyard Joginder Singh and Lakhvender Singh fired shots from their guns at Piara Singh and Darshan Singh. Veer Singh, Sadhu Singh alias Chhota and Gurdev Singh appellants and Shivdev Singh also caused injuries with their swords to Piara Singh and Darshan Singh. All had started crying. Balkar Singh deceased, who was sleeping on the roof of the east faced kotha, then challenged the assailants from the roof, whereupon Joginder Singh, Gurmeet Singh and Sewa Singh fired shots towards him from the ground, Balkar Singh was hit and he fell down. Thereafter Joginder Singh, Lakh vender Singh, Sadhu Singh alias Chhota climbed the roof and there as well fired shots at Balkar Singh. As soon as P. W. 1 Gulzar Singh had seen the assailants in the courtyard he had got up and concealed himself behind the cursher which already observed, was placed towards the south east side of the courtyard of his house. He had seen the entire occurrence from that place. Hazara Singh P. W. 2 and his brother Karnail Singh firstly had taken the cover by the side of the kitchen, which was in the northern side of the house and when the three assailants had climbed the roof of the kotha, they had scaled the chest high northern wall of their house, from where they witnessed the rest of the occurrence. After murdering Piara Singh, Balkar Singh and Darshan Singh to the spot, the assailants went away. ( 7 ) P. W. 1 Gulzar Singh informant went to the police station Bilaspur, situated at a distance of seven miles from his village Jamunapur, to lodge the report of the incident. ( 8 ) THE prosecution in this case examined fourteen witnesses, P. W. 1 Gulzar Singh informant, P. W. 2 Hazera Singh and P. W. 3 Surendra Kaur had narrated the incident in detail. P. W. 4 Jagdish Prasad Joshi is the photographer who had accompanied the 1. 0. to the place of occurrence and he had taken different photos which he had proved. P. W. 6 Jagdish Prasad is the Head Moharrir, who had received the report of the incident and had registered the case. Devi Singh Pawar S. I. P. W. 5, constable Sukhdev Singh P. W. 8, constable Chandan Lal P. W. 10, Head constable Tausif Ali P. W. 11, constable Daya Ram P. W. 12, Head constable Ranvir Singh P. W. 14 and P. W. 9 Shyamlal Gupta clerk in the office of the C. M. O. were formal witnesses. ( 9 ) THE investigation of this case was conducted by P. W. 13 Karamvir Singh S. 0. After recording the statements of the informant and his brother Hazara Singh P. W. 2, who had come to the Police Station along with him, he went to the place of occurrence with Photographer Jagdish Prasad Joshi P. W. 4 and some constables. He inspected the place of occurrence and prepared the site plan thereof. He took the three dead bodies in possession and prepared the inquest reports and the necessary documents. He took the blood stained articles besides the blood stained and unstained earth from the place of occurrence and sealed the same separately. He had also found three empty cartridges near the cot of Piara Singh deceased and two cartridges near the cot of Balkar Singh deceased which he took into possession. On 3. 7. 77 the La. recorded the statements of Smt. Surendra Kaur P. W. 3 and others. He searched for the accused persons but to no avail. He submitted his report for action under sections 82 and 83, Cr. On 3. 7. 77 the La. recorded the statements of Smt. Surendra Kaur P. W. 3 and others. He searched for the accused persons but to no avail. He submitted his report for action under sections 82 and 83, Cr. P. C. However, the accused persons Joginder Singh, Lakhvender Singh, Veer Singh, Shivdev Singh, Sadhu Singh alias Chhota and Gurmeet Singh surrendered themselves in the court on 8. 7. 1977. The remaining two accused persons on the other hand surrendered themselves on 9. 7. 1977 and 11. 7. 1977 respectively. ( 10 ) THE 1. 0. had sent the three dead bodies for post mortem examination. The post mortem examination of the dead bodies was conducted by P. W: 7 Dr. M. L. Shilpkar, M. O. /ci in the E. S. I. Dispensary, Civil Lines, Rampur on 3. 7. 1977. The result of the post mortem examination conducted by Dr. M. L. Shilpkar P. W. 7 was as follows: - DARSHAN SINGH Ante Mortem Injuries: 1. Incised wound 27 cm. X 3 cm. X neck cavity deep on the front and right side neck, cutting the lower jaw at the level of 3rd vertebra cut. 2. Incised wound 5 cm. X 2 cm. X muscle on the front of left wrist joint. 3. Circular gun shot wound 3 cm. X 3 cm. cavity deep over the middle of abdomen, 5 cm above umbellicus. No blackening and no scorching. On internal examination the doctor found the vertabrae cut by injury No. 1. Heart was empty and it was of 7 ounces. Paritoneum was lacerated, which contained 3 pints fluid blood. Bladder was empty. Small intestines were full of gases, while big intestines were full of faecal matter. Liver was lacerated. In his opinion death of Darshan Singh was caused due to shock and haemorrhage due to the above injuries. The post mortem report prepared by him is Ext. ka 6. BALKAR SING H Ante Mortem Injuries: 1. Lacerated wound 10 cm. X 8 cm. X brain cavity deep on the left side of head, 5 cm. above left ear, brain matter was coming out from the wound. The bones of the skull were broken in multiple pieces. 2. Lacerated wound 7 cm. X 2 cm X vocal cavity deep over the right lower jaw with fracture of lower jaw. 3. Multiple circular gun shot wounds 1 cm. X 1 cm. above left ear, brain matter was coming out from the wound. The bones of the skull were broken in multiple pieces. 2. Lacerated wound 7 cm. X 2 cm X vocal cavity deep over the right lower jaw with fracture of lower jaw. 3. Multiple circular gun shot wounds 1 cm. X 1 cm. X chest cavity deep on the front of chest. No blackening and no scorching were there. The wounds were in an area of 10 cm. X 7 cm. wound of entry. 4. Multiple abrasion on an area of 12 cm. X 4 cm. on the right thigh middle. 5. Abrasion 5 cm. X 3 cm. on the dorsum of right foot. 6. Circular gun shot wounds 1 cm. X 1 cm. outer aspect of chest and chest cavity deep, 15 cm. above right nipple. 7. Multiple gun shot wound, 2 cm. X 2 cm. X cavity deep in an area of 10 cm. X 10 cm. over the left side of back middle (wound of exit ). 8. Multiple abrasion in an area of 7 cm. X 4 cm. on the right shoulder. On internal examination the doctor found the bones of scalp broken. Skull and membranes were lacerated under injury No. 7th and 8th ribs were fractured under injuries Nos. 3 and 7 and left lung had been fractured under these injuries. Heart was also lacerated and it was empty. Bladder was empty. Small intestines were full of gases, while big intestines were full of faecal matter. In his opinion death was caused due to shock and haemorrhage as a result of injuries on vital organs. The post mortem report is Ext. ka 7. PIARA SING H Ante Mortem Injuries:1. Incised wound 10cm. X 2 cm. X bone on left side of face, extending upto nose. 2. Incised wound 10cm. X 2 cm. X mouth cavity deep left side of face. The lower jaw cut. 3. Incised wound 18 cm. X 2 cm. X thickness of neck. The neck was hanging with skin at 3rd vertabrae, which was cut. 4. Incised wound 5 cm. X 2 cm. X skin deep on the top of left shoulder. 5. Incised wound 4 cm. X 2 cm. X bone deep at left clavicle bone cut. 6. Lacerated wound; 1 cm. X 1 cm. X skin back of left forearm, 6 cm. above wrist joint. 7. 4. Incised wound 5 cm. X 2 cm. X skin deep on the top of left shoulder. 5. Incised wound 4 cm. X 2 cm. X bone deep at left clavicle bone cut. 6. Lacerated wound; 1 cm. X 1 cm. X skin back of left forearm, 6 cm. above wrist joint. 7. Circular gun shot wound-3cm. X 3 cm. X abdomenal cavity deep on the outer aspect of chest, 7 cm. from left sub-costal margin. On internal examination he found the vertabrae cut under injury No. 3 Heart was empty. Petitoneum was lacerated and in its cavity about one pint fluid blood was present. From the stomach under this injury he took out seven pellets and 3 sads. Sesophagus was cut. Bladder was empty. Small intestines were full of gases, while big intestines were lacerated under injury No. 7. Spleen was lacerated, which was under injury No. 7. In his opinion death was caused due to shock and haemorrhage as a result of injuries on vital organs. The post-mortem report prepared by the doctor is Ext. Ka 8. ( 11 ) THE appellants in their statements denied the case of the prosecution. Gurmeet Singh appellant further stated that his leg was fractured 4 or 5 months prior to the incident and on account of the same he was mostly confined to his house and was able to move with great difficulty. Sewa Singh appellant pleaded alibi and stated that on the date of occurrence he was at his sisters place in village Harsauli, district Alwar (Rajasthan ). He also stated that a dacoity was committed in the house of the informant and he had been falsely implicated due to enmity. ( 12 ) THE defence examined two witnesses in defence. D. W. 1 Dr. Madan Lal, Assistant Medical Officer, District Jail, Rampur was examined to prove the medical reports relating to Gurmeet Singh appellant and Shivdev Singh. According to the said reports Shivdev Singh had a limp in the left thigh and his left foot was flat. About Gurmeet Singh it was stated that he had an old fracture but on account of the same there was no functional disability. Daljeet Singh D. W. 2 is the brother of the wife of Sewa Singh appellant. He deposed that from 30. 6. 77 to 5. 7. About Gurmeet Singh it was stated that he had an old fracture but on account of the same there was no functional disability. Daljeet Singh D. W. 2 is the brother of the wife of Sewa Singh appellant. He deposed that from 30. 6. 77 to 5. 7. 1977 said Sewa Singh was staying at his place and from where he had also written two inland letters Exts. Ka. 5 and 6. ( 13 ) LEARNED lower court has believed the case set up and the evidence produced by the prosecution against the appellants and has accordingly convicted and sentenced the appellants as aforesaid. Shivdev Singh was, however, given benefit of doubt and was acquitted. Aggrieved by the same the appellants have filed this appeal. ( 14 ) AFTER the examination of the appellants under section 313, Cr. P. C. the learned lower court had not only recalled and examined Dr. M. L. Shilpkar P. W. 7 but had also examined Sri Budul Rai Ballistic Expert as C. W. 1. It was therefore found proper to further examine the appellants under section 313, Cr. P. C. in this Court and given them opportunity to produce further defence, if any. Accordingly, the statements of the appellants were recorded under section 313, Cr. P. C. in order to enable them, to explain the circumstances which had appeared in the aforesaid evidence of Dr. M. L. Shilpkar P. W, 7 and C. W. 1 Budul Rai. On the request of the appellants two experts namely Dr. U. S. Sinha Reader and Head of the Department, Forensic Science Department, Motilal Nehru Medical College, Allahabad and Sri Siya Ram Gupta, Fire Arms Expert were examined in this court as defence witnesses. ( 15 ) WE have heard learned counsel for the parties and have perused the record carefully. ( 16 ) ALTHOUGH in a case of direct evidence motive is not very important yet we consider that when the prosecution has set up a motive in this case, it shall be proper to determine as to whether the prosecution succeeded to establish it. P. W. 1 Gulzar Singh has stated in his evidence that about 41/2 years prior to this incident Shivdev Singh accused had mortgaged to him his one acre of land for a sum of Rs. 1600/- Gulzar Singh P. W. 1 had raised Charit crop over the said land. However, on 7. P. W. 1 Gulzar Singh has stated in his evidence that about 41/2 years prior to this incident Shivdev Singh accused had mortgaged to him his one acre of land for a sum of Rs. 1600/- Gulzar Singh P. W. 1 had raised Charit crop over the said land. However, on 7. 7. 1973 Shivdev Singh and his companions had started ploughing the said land after uprooting the saidt Charit crop raised therein. That led to a T1marpit in which two sons of Sukhdev Singh, namely Mahendra Singh that for the said murder Gulzar Singh complainant and his four brothers, namely P. W. 2 Hazara Singh, Balkar Singh deceased, Sewa Singh and Karnail Singh, his uncle Lal Singh, his father Piara Singh, his cousin Gurmeet Singh and co-villagers Charan Singh, Chanan Singh and Malook Singh were prosecuted. Out of them three persons, namely Karnail Singh, Lal Singh and Gurmeet Singh, were acquitted by the Sessions Court but the remaining eight persons were convicted. Against the same an appeal had been filed in the High Court, which was pending. During the pendency of the said appeal, the said eight persons had been enlarged on bail. Although it was denied from the side of the appellants that the enlargement of the aforesaid eight persons on bail was not liked by them and their relations or that and they used to stare at these persons whenever they met them, yet it is not denied to the appellants that the two real brothers of the appellants Joginder Singh, Lakhvender Singh and Veer Singh had been murdered by Balkar Singh deceased and Piara Singh deceased and their companions for which they were prosecuted and convicted and sentenced to life imprisonment by the trial court. It is also not denied that the said persons having been enlarged on bail were roaming about freely. Obviously this would not have been to the liking of the appellants. Thus there was a motive for the appellants to commit this crime. Learned counsel for the appellants has, however, urged before us that at the most the prosecution could allege a motive against Joginder Singh, Lakhvendra Singh and Veer Singh appellants. Those two real brothers namely Mahendra Singh and Kapoor Singh had been murdered, yet the same could not be done so far as the remaining appellants were concerned. This argument appears to be devoid of force. Those two real brothers namely Mahendra Singh and Kapoor Singh had been murdered, yet the same could not be done so far as the remaining appellants were concerned. This argument appears to be devoid of force. It may be observed that Sadhu Singh alias Chhota appellant was not only the real maternal uncle of said Mahendra Singh and Kapoor Singh deceased persons but had also appeared as an eye-witness in their murder case. The remaining appellants were also related to said Mahendra Singh and Kapoor Singh. In this respect we have already observed that Narayan Singh and Sadhu Singh were two real brothers. The said Narayan Singh had three children, namely Sewa Singh Gurdev Singh appellants and a daughter named Smt. Satwant. The said Smt. Satwant was married to Mahendra Singh deceased. Thus Gurmeet Singh appellant was the first cousin of Sewa Singh and Gurdev Singh appellants. It is, thus clear that all the appellants were related to each other and due to the same they could combine to commit the crime. The prosecution thus succeeded to make out the motive set up by it. ( 17 ) ALTHOUGH it has not been argued before us yet we find from the record that in the trial court a suggestion was made from the side of the appellants that infact a dacoity had been committed at the house of Piara Singh deceased in which besides him his two sons namely Balkar Singh and Darshan Singh were murdered. It appears that because there was no force and substance in the said suggestion, hence the same was rightly not pressed before us. It may, however, be not out of place to state here that there was no looting of property and no other circumstances which could indicate that any dacoity had been committed at the house of Piara Singh deceased. As may be found from the post mortem examination reports of Piara Singh and Darshan Singh, these two persons were not only fired from the close range but were also caused serious injuries by swords. It was not probable for such injuries to be caused in a dacoity. We are convinced that this was a case of murder which was committed by the persons who were interested and keen to take the lives of Piara Singh, Balkar Singh and Darshan Singh, and not a case of dacoity. It was not probable for such injuries to be caused in a dacoity. We are convinced that this was a case of murder which was committed by the persons who were interested and keen to take the lives of Piara Singh, Balkar Singh and Darshan Singh, and not a case of dacoity. ( 18 ) NOW coming to the direct evidence, the prosecution in order to prove its case against the appellants examined three eye witnesses, namely P. W. 1 Gulzar Singh informant, P. W. 2 Hazara Singh and his wife Smt. Surendra Kaur P. W. 3. There is no dispute that these three persons being closely related to Balkar Singh, Darshan Singh and Piara Singh, who were murdered in this case, were living with them in the came house. They were, thus, most natural witnesses. All of them had deposed that on the noise created by the barking of dog etc. they had got up to see that all the seven appellants, along with Shivdev Singh, duly armed with weapons were present in the courtyard of their house. They further deposed that immediately after arrival firstly Joginder Singh and Lakhvendra Singh appellants fired shots from their guns at Piara Singh and Darshan Singh. Whereafter Veer Singh, Sadhu Singh alias Chhota and Gurdev Singh appellants and Shivdev Singh struck Darshan Singh and Piara Singh with the swords, with which they were armed. They have also deposed that when Balkar Singh deceased, who was sleeping on the east faced Aohzat challenged the appellants from the roof, Joginder Singh, Gurmeet Singh and Sewa Singh appellants fired shots towards him from their fire arms which hit Balkar Singh and he fell down on the roof. They further deposed that thereafter some of the appellants climbed to the roof and fired shots at Balkar Singh. After committing this crime appellants went away. Subsequently Darshan Singh, Balkar Singh and Piara Singh were found dead at the spot. All these three witnesses have given consistent evidence. There is no contradiction in their evidence with regard to any material detail of the incident. They have full opportunity and sufficient light to see and recognise the assailants. It may be noted that this incident took place on Purnamasit day i. e. on full moon night. There were no clouds on that night and therefore, there was clear visibility. There is no contradiction in their evidence with regard to any material detail of the incident. They have full opportunity and sufficient light to see and recognise the assailants. It may be noted that this incident took place on Purnamasit day i. e. on full moon night. There were no clouds on that night and therefore, there was clear visibility. Over and above the moon light the aforesaid witnesses have deposed that two lanterns were burning in the house. One of the lanterns was placed on a drum kept almost in the middle of the courtyard. Another lantern was hanging inside the north east corner of TChhappar placed in form of the cast faced Kothas. The said lanterns would have also spread sufficient light. We also believe the prosecution witnesses that two or three assailants were also carrying torches, which they had flashed. In our opinion when the assailants had come to commit this ghasty murder, they would have naturally carried with themselves some source of light. The said torches would have also been flashed. We are thus convinced that there was sufficient light at the place of occurrence which would, have permitted the eye-witnesses to recognise the assailants. The fact that there was no unreasonable delay in lodging the FIR also lends corroboration to the version given by P. W. 1 Gulzar Singh. It may be noted that whereas this incident had taken place on 2. 7. 1977 lit 2. 30 a. m the FIR in this case was lodged on the same date at P. S. Bilaspur, situated at a distance of 7 miles, at 6. 30 a. m. P. W. 1 Gulzar Singh informant accompanied by his brother P. W. 2 Hazara Singh, had gone to the police station on foot. They have also deposed that after the incident, it had taken them sometime to gather their wits and then write the FIR. Taking into consideration that as many as three persons had been murdered, and that even then FIR was lodged within four hours by P. W. 1 Gulzar Singh, after covering the distance of 7 miles on foot, it cannot be said that there was any undue delay in lodging the FIR. Taking into consideration that as many as three persons had been murdered, and that even then FIR was lodged within four hours by P. W. 1 Gulzar Singh, after covering the distance of 7 miles on foot, it cannot be said that there was any undue delay in lodging the FIR. The evidence given by the P. W. 1 Gulzar Singh, P. W. 2 Hazara Singh and P. W. 3 Smt. Surendra Kaur inspires confidence and in our view the learned lower court has rightly placed reliance upon them. ( 19 ) LEARNED counsel for the appellants has, however, attacked the evidence produced by the prosecution in this case on various grounds. At the outset learned counsel for the appellants vehementally argued before us that the eyewitnesses account given by the aforesaid three eye witnesses was belied by the medical evidence etc. produced in this case. In this context the learned counsel for the appellants has urged that when there was no blackening and tatooing around the fire arm wounds of Darshan Singh and Piara Singh, the eye witnesses account given by the aforesaid eyewitnesses that they were tired at from a very close range was belied. It is true that as per post mortem examination report of Darshan Singh and Piara Singh there was no blackening, etc. around the gun shot wounds sustained by them, yet it cannot be said merely from the absence of the same that the shots were not fired at them from a close range. It has come on record that while conducting the post mortem examination the doctor had found and recovered three pieces of wads each from the dead bodies of Darshan Singh and Piara Singh. In our opinion if card wads were found from the wounds, the same was clear indication that the shots were fired at Darshan Singh and Piara Singh from a close range. We are of the opinion that unless the medical evidence goes so far that it completely rules out all the possibility whatsoever of injuries taking place in the manner alleged by the eyewitnesses, the testimony of the eye-witnesses cannot be thrown out on the around of alleged inconsistency between it and the medical evidence. In this case, however we are of the opinion that there is no inconsistency between the eye-witnesses account given by the eye witnesses and the medical evidence. In this case, however we are of the opinion that there is no inconsistency between the eye-witnesses account given by the eye witnesses and the medical evidence. As regards Baikar Singh deceased, learned counsel for the appellants has urged before us that whereas according to the eye-witnesses, all the injuries sustained by him were caused by fire arm shots, the medical evidence on the other hand reveals that some of the injuries were not caused by fire arm. In this context he has referred to us injuries Nos. 1 and 2 which at the risk of repetition, are re-produced below for ready references: 1. Lacerated wound 16 cm x 8 cm x brain cavity deep on the left side of head 5 cm above left ear. Brain matter is coming out from the wound. The bones of the skull broken in multiple pieces. 2. Lacerated wound 7 cm x 2 cm x vocal cavity deep over the right lower jaw with fracture of lower jaw. Learned counsel for the appellants has urged before us that although the prosecution had taken a case that while standing on the ground Joginder Singh, Gurmeet Singh and Sewa Singh bad fired shots from the fire arms at Balkar Singh, who was on the roof of Kotha, yet the said injuries Nos. 1 and 2 could not possibly have been caused either by rifle, with which Gurmeet Singh was armed, or with gun, with which Joginder Singh was armed. It may be noted that the suggestion of the prosecution was that possibly a rifle shot had hit the lower jaw of Balkar Singh resulting in an abnormal lacerated wound 7 cm x 2 cm x vocal cavity deep and that when the fractured lower jaw penetrated along with the bullet, the same caused an abnormal exit wound, i. e. injury No. 1. In our view when no bullet was found inside the body of Balkar Singh, the question of aforesaid injuries Nos. 1 and 2 being gun shot wound could arise only if these two injuries were communicating each other. Learned counsel for the State urged before us that infact P. W. 7 Dr. M. L. Shilpkar, who had conducted the post mortem examination of the dead bodies, having been confused with the abnormal dimensions of the said injuries Nos. 1 and 2 being gun shot wound could arise only if these two injuries were communicating each other. Learned counsel for the State urged before us that infact P. W. 7 Dr. M. L. Shilpkar, who had conducted the post mortem examination of the dead bodies, having been confused with the abnormal dimensions of the said injuries Nos. 1 and 2, did not realise that the same were infact gun shot wounds and therefore he did not probe the said injuries with a vice to find as to whether they were communicating with each other. Anyway, we go by the evidence of P. W. 7 Dr. M. L. Shilpkar, who has stated that the said two injuries were not through and through. When this is so, the said two injuries could not be termed as gun shot wounds. However, the same does not make any material difference in this case because it is clear both on the basis of the evidence of P. W. 7 Dr. M. L. Shilpkar and otherwise that these two injuries could be caused by hitting with the butt of the fire arms. Learned counsel for the appellants has, however, submitted before us that when the eye-witnesses examined in this case have clearly deposed that only shots were fired at Balkar Singh, their version was belied when it is found that injuries Nos. 1 and 2 were not sustained by fire arm shots. In our view the said argument is without merit. Balkar Singh had been murdered on the roof of the eastern faced Kotha Ext. 11 is the photograph of the said Kotha, which shows that the said Kotha was quite high because in the said kotha there was a door and above the door there was a Roshandan and above the Roshandan (there were ALLAS Exts. 2, 3 and 4 are the photographs of the door of the Kotha on which Balkar Singh was murdered. These photographs shows that on the sides of the said roof there was a Mundair of some height. It has also come on record that after sustaining a fire arm shot fired from the ground, Balkar Singh had fallen down on the roof. These photographs shows that on the sides of the said roof there was a Mundair of some height. It has also come on record that after sustaining a fire arm shot fired from the ground, Balkar Singh had fallen down on the roof. In our view when Balkar Singh was lying injured on the roof, the eye-witnesses naturally could not have seen him from the ground as to whether or not the assailants had hit Balkar Singh with the butt as well resulting in injuries Nos. 1 and 2, specially when the roof of the said Kotha was quite high and was surrounded by a Mundair from the sides. The version given by the eye-witnesses, therefore, cannot be said to be belied if the injuries Nos. 1 and 2, possibly caused by the butt, were found on the dead body of the Balkar Singh. Learned counsel for the appellants has also argued before us that when no injury caused by rifle or revolver shots has been found on the dead body of Balkar Singh, the case of the prosecution is either belied or becomes doubtful that Sewa Singh and Gurmeet Singh armed with revolver and rifle respectively had participated in the aforesaid crime. It is true that according to the case of the prosecution both Sewa Singh and Gurmeet Singh had fired shots from their revolver find rifle respectively at Balkar Singh from the ground. In our view even if it may be baised that the shots fired from the said rifle and revolver had not it Balkar Singh, who was standing on the roof, the same does not either belie or make the case of prosecution doubtful because from the ground shot from a gun was also fired at Balkar Singh, which had hit him and as a result of the same he fell down. It may be observed that Balkar Singh had inter-alia sustained multi circular shot wounds 1 cm. x 1 cm. x chest cavity deep on the front of chest in an area of 10 cm. x 7 cm. Dispersal of the pellets in an area of 10 cm. x 7 cm. shows that gun shot was fired from quite a distance, i. e. from the ground towards roof. To repeat, we are of the opinion that the case of the prosecution is not belied in any manner. x 7 cm. Dispersal of the pellets in an area of 10 cm. x 7 cm. shows that gun shot was fired from quite a distance, i. e. from the ground towards roof. To repeat, we are of the opinion that the case of the prosecution is not belied in any manner. Learned counsel for the appellants has also tried to bring out a contradiction regarding the number of assailants who had climbed the roof and the side from which they did the same. It may be observed that whereas P. W. 1. Gulzar Singh and P. W. 3 Smt. Surendra Kaur deposed that Joginder Singh, Lakhvendra Singh and Sadhu Singh alias Chhota had climbed the roof, P. W. 2 Hazara Singh on the other hand had deposed that Joginder Singh and Lakhvendra Singh had climbed the roof. It is also true that without naming them P. W. 1 Gulzar Singh and P. W. 3 Smt. Surendra Kaur had stated in their evidence that the accused persons had climbed the roof from the northern wall of the Kotha, P. W. 2 Hazara Singh on the other hand had deposed that it was from the south eastern side of the Kotha that the accused persons had climbed the roof. In our opinion the said contradictions are too minor to be attached much weight. It is possible that some of the assailants might have climbed from the northern side and other from the southern side and all the witnesses may not have seen some assailants climbing the roof from the other side. It is a fact that Balkar Singh was murdered on the roof and for the said purpose it is obvious that the assailants had climbed the roof. Learned counsel for the appellants also made an attempt to assert that Balkar Singh deceased was infact not murdered on the roof. In our opinion the said contention was without substance because the dead body or Balkar Singh was found on the roof. The roof of the Kotha on which the said dead body was found had no staircase. It would have, therefore, been difficult to take the dead body of Balkar Singh from the ground to the roof of the Kotha and for no obvious gain. The 1. 0. had also recovered two empty cartridges by the side of the dead body of Balkar Singh. It would have, therefore, been difficult to take the dead body of Balkar Singh from the ground to the roof of the Kotha and for no obvious gain. The 1. 0. had also recovered two empty cartridges by the side of the dead body of Balkar Singh. We are convinced that the murder of Balkar Singh took place on the roof of the Kotha. Learned counsel for the appellants has also urged before us that either the eye-witnesses examined in this case were not present in the house at the time of the incident or at least they would have run away on seeing the assailants. In this context he has also submitted before us that the version of P. W. 1 Gulzar Singh cannot be believed that he had taken cover by the side of a thresher kept in the south east portion of the courtyard of his house because his presence there would have been easily detected and he would have also been attacked. In the same vein he has also urged that P. W. 2 Hazara Singh and Kamail Singh would not have hidden themselves firstly by the side of the Kitchen and then by the side of the northern wall as alleged by them. In our opinion the said argument is without merit. There is nothing on record to indicate that the three eyewitnesses examined in this case were not present in their house on the date of the incident. We have already observed that these three witnesses were most natural witnesses. P. W. 1 Gulzar Singh had been married only recently. Both he and P. W. 2 Hazara Singh had gone to the Police Station shortly after the incident to lodge the report of the incident. This aspect of the matter corroborates them that they were present in their house at the time of the incident. P. W. 3 Smt. Surendra Kaur is the wife of P. W. 2 Hazara Singh. Her Presence in the house was also quite natural. As regards running away of the witnesses we are of the opinion that when the assailants had entered the house all of a sudden at the dead of night, there would have been hardly any time for the eye-witnesses to have run away from their house, which was surrounded by the buildings from the eastern and southern sides. As regards running away of the witnesses we are of the opinion that when the assailants had entered the house all of a sudden at the dead of night, there would have been hardly any time for the eye-witnesses to have run away from their house, which was surrounded by the buildings from the eastern and southern sides. There was no possibility of escaping from the western side because the assailants had come from that side and were present there. Besides, it may be noted that the western side had a short opening firstly because there were two Kothas on the south west side and there was a heap of fuel wood on the south west side of the house. Smt. Surendra Kaur P. W. 3, being a lady, would not have gathered guts to climb the walls and run away. P. W. 1 Gulzar Singh informant was sleeping towards south east corner of the courtyard. He was in a tight corner because the said portion of the courtyard was surrounded by the buildings on the eastern and southern sides. Therefore, the easiest and most natural thing which could be done by him, was to take cover by the side of thresher which was kept there. Therefore, we are inclined to believe him that P. W. 1 Gulzar Singh had taken cover by the side of the said thresher. As regards P. W. 2 Hazara Singh he had deposed that he, along with Karnail Singh, had firstly hidden himself by the side of the Kitchen and that when the assailants were climbing the roof of the Kotha, they crossed the northern wall of their house and took shelter by the sides thereof from, where the incident was seen. Learned counsel for the appellants has urged before us that the witnesses could have run away in the northern side. When Hazara Singh P. W. 2 was confronted with this position in his cross- examination, he gave a reply by stating that it was a moonlit night and had they tried to run away from the northern side they would have been spotted and shot dead. In our opinion the said reply was quite satisfactory and there was no occasion for the eye-witnesses examined in this case to run away from the place of occurrence. In our opinion the said reply was quite satisfactory and there was no occasion for the eye-witnesses examined in this case to run away from the place of occurrence. We are also of the view that when the eye-witnesses were inmates of the house it would have been their natural curiosity to see in all possible manner the assailants, who had entered in their house to attack their kith and kin. It cannot be said by any stretch of imagination that when these three eye-witnesses were present in the house, they would not have seen the assailants atleast in the first flash when they had got up. Subsequently as well there was full opportunity for these eyewitnesses to see the incident and the assailants. P. W. 3 Smt. Surendra Kaur was there in the courtyard all along. We are impressed by the version of these witnesses and we find no reason to disbelieve the same. ( 20 ) LEARNED counsel for the appellants has also submitted before us that it would not be safe to rely upon the interested witnesses who were inmates of the house and that the prosecution should have examined some independent witnesses specially when there were houses in the neighbourhood. In our opinion the said argument is devoid of force because when no one from the neighbourhood had come to the place of occurrence and had not witnessed the incident there was no question for the production and examination of any such witness. On the other hand we are of the opinion that when no neighbour has been examined, it shows that no attempt was made to falsely procure any witness for examination in this case. ( 21 ) THE next point urged by the learned counsel for the appellants is that the F. I. R. in this case was ante-time and infact the same was lodged with delay. In this connection he has firstly referred to us Panchayatnamas. He has asserted that in the column meant for recording the time and date of lodging the F. I. R. , the said time and date are written in different ink. We have not been impressed by the said argument. Besides, it may be noted that not a word with respect to the same was asked in cross-examination from any witness. We have not been impressed by the said argument. Besides, it may be noted that not a word with respect to the same was asked in cross-examination from any witness. Secondly, learned counsel for the appellants has desired us to draw an adverse inference from the fact that the copy of the F. I. R. was not sent alongwith other papers, when the dead bodies were sent for post mortem examination. This point has been raised for the first time in this court and there was no such suggestion to any witness before the court below. Any way, learned counsel for the appellants was not able to cite any rule before us according to which it may be mandatory for the investigating agency to send the copy of the F. I. R. as well alongwith the dead bodies. Thirdly, the learned counsel for the appellants has referred to us an endorsement on the Chick report and from the same he has tried to assert that the special report of this case has tried to assert that the special report of this case was received by the Magistrate on 6. 7. 1977. It may be noted that on the bottom of the front page of the chick report the following words are written and under the said words some initials are made on which the date 6th July is printed; NAAYALAY SAMBANDHI BHEJI JAI The aforesaid endorsement has not been specifically proved. Any way, the mere fact that some endorsement was made by some body, whose identity has not been disclosed, on 6th July, 1977, that the said chick report should be sent to the court concerned, an inference cannot be raised that the said chick report was despatched from the police station late. Fourthly, the learned counsel for the appellants has pointed cut that in the chick report in the column meant for recording the date of despatch from the police station, no such date is mentioned. From the said fact learned counsel for the appellants wants to infer that the F. I. R. in this case must have been drawn much later than it is actually shown to have been. In our opinion the said argument is without merit and the case cited by him and reported in A. I. R. 1974 S. C. 11931 does not help the appellants. In our opinion the said argument is without merit and the case cited by him and reported in A. I. R. 1974 S. C. 11931 does not help the appellants. In that case before the Hon. Supreme Court there was mystery surrounding the very quick writing of and copying out of the F. I. R. In this background when the column in the form in which the F. I. R. was taken did not mention the time and date of the despatch of the report from the police station to the Magistrate, it was shown to be. This is not the position here. In this case there was no quick writing and copying of the F. I. R. In fact the F. I. R. was lodged in ordinary course after a lapse of about four hours. There was, thus no mystery surrounding the writing of and copying out of the F. I. R. Besides, the column meant for recording the date of despatch from the police station in the chick report is not blank. On the other hand the words RWANGI DAK i. e. despatch by Dak are written, meaning thereby that the special report had been sent by Dak. We are of the opinion that when it is abundantly clear that the investigation had started soon after handing over of the F. I. R. , no adverse inference could possibly be raised even if there have been any delay in despatching the special report from the police station. In this connection reference is made to State of U. P. v. Kokaran2 in which it has been observed that it is not that as if every delay in sending a delayed special report to the Magistrate under section 157 Criminal Procedure Code would necessarily lead to the inference that the F. I. R. had not been lodged at the time stated or had been ante-timed or ante dated or that the investigation was not fair or forthright. It was also observed that where the steps in investigation by way of drawing inquest report and other Panchayatnamast had started soon which would only follow the handing over of F. I. R. , the delayed receipt of special report to the Magistrate would not enable to court to dub the investigation as tainted One nor could F. I. R. be regarded as ante timed and ante dated. It may be observed that in this case the Investigating Officer ha d proceeded to the place of occurrence promptly. He had 1. AIR 1974 SC 1143 . 2. AIR 1985 SC 131 . prepared the Panchayatnamas of the three dead bodies on the same date, i. e. 2. 7. 1977 P. W. 8 constable Sukhedeo Singh had deposed that on 2. 7. 1977 at 1 p. m. he had left the place of occurrence with the dead bodies for post mortem examination. In our view when after the inquest reports and other formalities the dead bodies were handed over to the said police constable for taking them to mortuary for getting the post mortem examination conducted on 2. 7. 1977 at 1 p. m. , it shows quite clearly that the investigation had started on the morning on 2. 7. 1977 itself. Thus, we are of the view that when the investigation in this case had started promptly and inquest reports of the dead bodies were prepared on the morning of 2. 7. 1977, the same would have been possible only if the F. I. R. had been recorded earlier. ( 22 ) LEARNED counsel for the appellants has also referred to us an endorsement dated 3. 7. 1977 made by Dr. M. L. Shilpkar P. W. 7, who had conducted the post mortem examination of the dead bodies, to the effect that the dead bodies had been received on 2. 7. 1977 at 8 p. m. and that the papers were received on 3. 7. 1977 at 9. 30 a. m. and the post mortem was done on 3. 7. 1977 at the time specified therein and from the same he has tried to raise an inference that the papers were not sent to the doctor alongwith the dead bodies. In our opinion the said argument is without force. The said endorsement of the doctor on the back of the Chalan Lasht simply refer to the time and date when the dead bodies were brought to the mortuary, the time and date when the papers were handed over to him for his necessary action and the time and date when he actually performed the post mortem examination. When the dead bodies were brought to the mortuary on 2. 7. When the dead bodies were brought to the mortuary on 2. 7. 1977 at 8 p. m. there was no question for the doctor to perform the post mortem examination in the night. The doctor, therefore, simply wrote the time and date when the constable had only placed the dead bodies in the mortuary Besides, it may be observed that the copy of the F. I. R. , had not been sent with the dead bodies and the same was not handed over to the doctor and, therefore, the prosecution would not have gained anything by not sending the other routine papers alongwith the dead bodies. We are thus of the opinion that on 2. 7. 1977 at 8 p. m. the dead bodies were brought and placed in the mortuary and that it was on the morning of the next day that the relevant papers were presented before the doctor for performing the post mortem examination of the dead bodies. We are, thus convinced that the F. I. R. was not ante-timed. ( 23 ) LEARNED counsel for the appellants has further urged before us that there was a fracture in one of the legs of Gurmeet Singh appellant which restricted his move ability and therefore, here was no question of his joining the other assailants to commit this crime. In this connection he has also referred to us the evidence of D. W. 1 Dr. Madan Lal, the then Assistant Medical Officer, District Jail Rampur who, alongwith one Dr. A N. Zutshi C. M. O had medically examined Gurmeet Singh. It may be observed that according to D. W. 1 Dr. Madan Lal there was an old fracture in the right leg of Gurmeet Singh appellant but on account of the same there was no functional disability in Gurmeet Singh. He made it clear that due to the said old fracture there was no hindrance for Gurmeet Singh appellant to walk. In our view when Gurmeet Singh could walk about freely, it could not be said that he would not have gone to commit the aforesaid crime. He made it clear that due to the said old fracture there was no hindrance for Gurmeet Singh appellant to walk. In our view when Gurmeet Singh could walk about freely, it could not be said that he would not have gone to commit the aforesaid crime. ( 24 ) LEARNED counsel for the appellants has also referred to us the plea of alibi raised by Sewa Singh appellant and has argued that on the date of the incident he was staying with his sister in village Harsauli, district Alwar (Rajasthan) and in support thereof he has referred to us the evidence of D. W. 2 Daljeet Singh and two inland letters alleged to have been written by Sewa Singh appellant from Harsauli on 1. 7. 1977 and 2. 7. 1977. We find that in the lower court it was argued that when Sewa Singh had not raised the plea of alibi either in his bail application or surrender application, the said plea was mala fide. Learned Sessions Judge after taking all these facts into consideration has not accepted this plea. We find no reason to differ with him. The aforesaid inland letters produced by the defence are just ordinary letters. These letters were not sent by registered post. It is not difficult to procure such ordinary letters when the life of a person is at stake. D. W. 2 Daljeet Singh is the real brother-in-law of Sewa Singh appellant. We are not impressed with the solitary evidence of such an interested witness. Therefore, we are of the opinion that learned Sessions Judge has rightly not believed the plea of alibi taken by Sewa Singh appellant. ( 25 ) LASTLY, the learned counsel for the appellants has urged before us that when in this case one of the co-accused persons, namely Shivdev Singh, had been acquitted, benefit of doubt should be given to the appellants as well. In our view the said argument has no force. The record shows that because Shivdev Singh was of about 75 years of age and had a limp on the left side of his body and also because his left foot was flat, hence as a matter of abundant prosecution the learned Sessions Judge acquitted him. In our view the said argument has no force. The record shows that because Shivdev Singh was of about 75 years of age and had a limp on the left side of his body and also because his left foot was flat, hence as a matter of abundant prosecution the learned Sessions Judge acquitted him. In our view when in the said circumstances the learned trial court has given benefit of doubt to Shivdev Singh, the case of the prosecution was not weakened with regard to the remaining accused persons, i. e. appellants. It has been accordingly held in Mst. Dalbir Kaur and others v. State of Punjab3 and Sat Kumar v. State of Haryana4 that there was no rule of law that if the court acquits some of the accused against whom there is certainty about his complicity in the crime must be acquitted. On a careful and close scrutiny of the evidence we are of the opinion that there is no doubt regarding the participation of the appellants in this crime. ( 26 ) IN result, therefore, we find no force in this appeal and the same is liable to be dismissed. ( 27 ) ACCORDINGLY, this appeal is dismissed and the convictions of the appellants Gurmeet Singh, Joginder Singh, Lakhavendra Singh, Veer Singh, Sewa Singh, Sadhu Singh alias Chhota and Gurdev Singh under sections 452, 148 and 302/149, I. P. C. and their sentences to undergo 3 years R. I. , 2 yearst R. I. and imprisonment for life respectively thereunder are upheld. All the appellants are on bail. They shall be taken into custody forthwith so that they may serve out the sentence of life imprisonment imposed on them. .