V. P. MATHUR, J. The three appellants namely Kateshwar, Abhinandan and Rajeshwari are very closely related to each other. The first two are real brothers sons of Gaya Prasad. The third Rajeshwari is their nephew. Mr. S. N. Mishra, the then and Additional Sessions Judge of Basti has by his judgment and order dated 13-6- 1973 convicted Kateshwar and Abhinandan on a charge under Sections 302/34,i. P. C. and sentenced each one of them to imprisonment for life. Rajeshwari was found guilty for the offence punishable under Section 302,i. P. C. simpliciter. He was also accordingly convicted and sentenced to imprisonment for life. All the three have now come up before this Court through this appeal. 2. The following pedigree set up by PW 1 Murli and not disputed by the defence, will be relevant for a proper appreciation of the facts of this case : Kalpi Pratap Sheopal Dhanpal x Gaya Prasad Jasai Kateshwar Abhinandan Raghunandan Achhaibar Smt. Dukhna (appellant No. 1) (appellant No. 2) / -wife (daughter) Rajeshwari (Smt. Bhanumati) Married to (appellant No. 3) PW 1 Murli The deceased of this case is Smt. Bhanumati and the charge against the appellants are in respect of her murder, which allegedly took place on 13-2-1971 at 5p. m. in villages Basdilia which lies within the area of police station Dumeriaganj. District Basti. The first information report was lodged by Murli (PW 1) at 10. 10p. m. in police station Dumeriaganj, which is eight miles away from the scene of occurrence. 3. It is said that Achhaibar died some time in the year 1976 and Smt. Bhanumati as his widow called upon SMTP, Dukhans husband Murli to come to her assistance and to look after her cultivation and other affairs. In this manner Murli was living at the house of Achhaibar and looking after his cultivation, which was inherited by Smt. Bhanumati. Gaya Prasad father of appellants Nos. 1 and 2 and the grandfather of appsllnnt No. 3 who was a collateral of Achhaibar, started mutation proceedings claiming that his name should be mutated in place of Achhaibar. No documentary evidence has been placed on the record and, therefore, we do not know as to what plea had been taken by Gaya Prasad in support of his claim to Achhaibars agricultural land. This is, however, not disputed that his mutation application was opposed by Smt. Bhanumati and was dismissed. No documentary evidence has been placed on the record and, therefore, we do not know as to what plea had been taken by Gaya Prasad in support of his claim to Achhaibars agricultural land. This is, however, not disputed that his mutation application was opposed by Smt. Bhanumati and was dismissed. Then Smt. Bhanumati moved an application for mutation of her name. There is also some evidence to the effect that Smt. Dukhna wife of Murli (PW 1) and sister of Achhaibar also started mutation proceedings. Again there is nothing on the record to show as to on what basis she was claiming mutation in respect of the property of Achhaibar. By the way it may tie made clear at this stage that in view of Sections 171 and 172 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, Bhanumati will inherit an interest in the holding of her husband as a widow and on her death the property will devolve on Achhaibars heirs in the order or succession given in Section 171 and it will be clear that a married sister who is described in clause (m) will be preferential heir as compared to other collaterals like Gaya Prasad etc. 4. It is, however, admitted that after losing the mutation case before the Tehsildar, Gaya Prasad did not sit silent. He opposed the mutation petition of Smt, Bhanumati and when the Tehsildar decided it in her favour, Gaya Prasad moved the Sub-Divisional Magistrate, Dumeriaganj by way of revision (appeal ). This case before the Sub-Divisional Magistrate was pending when this occurrence took place and 13-2-1978 was the date fixed for the appearance of the parties before that court. The contention of the prosecution is that Smt. Bhanumati accompanied with Murli who was looking after her and her property, attended the court of Sub-Divisional Magistrate. The order-sheet has been placed on the record. It appears that the case was adjourned because the Magistrate was otherwise busy and another date was given. It is contended that Murli and Bhanumati started back for their village. They took a bus from Dutneriaganj. There was no regular stoppage of the Bus at their village Basdilia but the nearest Bus-stop was at Daboli Pokhra (pond), where these two persons alighted from the Bus to take the route up to their village on foot which was about one and a half miles. They took a bus from Dutneriaganj. There was no regular stoppage of the Bus at their village Basdilia but the nearest Bus-stop was at Daboli Pokhra (pond), where these two persons alighted from the Bus to take the route up to their village on foot which was about one and a half miles. Alongwith them some other persons including (PW 2) Tirath Singh who had also gone to Dumeriaganj and Moti Ram (PW 3) who was returning from Sahilpur, also got down from the same Bus at the same bus-stop and accompanied them on the rasta that led to Dumeriaganj and also to Karaula. One Moti Singh (PW 4) had come to the pond near Sriram Kurmis grove to ease himself. He also heard cries when the occurrence took place and rushed towards the scene of occurrence. 5. It is contended that the three appellants of this case were hiding either in the grove of Sriram Kurnai or in the arhar field of Kallu which is just adjacent to Srirams grove and when Smt. Bhanumati along with PW t Murli, PW 2 Tirath Singh and PW 3 Moti Ram was passing through the kachcha rasta leading to Basdilia, they suddenly emerged out and encircled her. Appellants Kateshwar and Abhinandan caught hold of the lady by holding her hands in order to pin her down and Rajeshwari who was armed with a country made pistol fired on her head from behind form a very close range. The effect was instantaneous. Smt. Bhanumati was fatally injured and fell down. The witnesses cried out. Then Moti Singh (PW 4) who had just finished easing himself, rushed. He saw the three appellants running away through the grove of Sriram towards the north east. He found that one of them namely Rajeshwari was possessed of a pistol. 6. The first information report of the matter was dictated by Murli to Tirath Singh who scribed it and with it Murli reached the police station Dumeriaganj where he handed it over to the Head Constable clerk who prepared the formal first information report Ext. Ka-2 and registered the case at 10. 10 p. m. The Investigating Officer did not take time to reach the scene of occurrence and he started investigation at once. He reached the place of occurrence in the night and he started investigation at 7 a. m. on 14-2- 1978. Ka-2 and registered the case at 10. 10 p. m. The Investigating Officer did not take time to reach the scene of occurrence and he started investigation at once. He reached the place of occurrence in the night and he started investigation at 7 a. m. on 14-2- 1978. He prepared the Panchayatnama Ext. Ka-5 and took the deadbody into custody and sent it in sealed condition on 14-2-1978 at about 1. 30 p. m. to the mortuary. 7. Dr. R. C. Verma (PW 8) conducted the post mortem examination on 14-2-1978 at 4 p. m. on the deadbody vide Ext-13. The lady was about 45 years of age and the time since death was about one day. She had the following ante mortem injuries : 1. Gun shot wound of entry 4 cm X 3 cm X cavity deep on the left side of the back of scalp 5 cms. from the left ear with blackening, tattooing, charring, screening and singeing of the scalp hair. The direction was forward medially and upwards. Margins were inverted. Under lying bones of the skull were broken in multiple pieces. 2. Gun shot wound of exit 6 cms X 5 cms X cavity deep on the right side of the front of the scalp 8 cms above right eye brow and 5 cms above the right ear with everted margins. There was, no blackening or tattooing on this wound. 8. Under injury Nos. 1 and 2 occipital, left temporal, frontal and right temporal bones had been fractured in multiple pieces. The membranes were badly lacerated. Four metallic pellets and one wadding material were found embedded in the brain and were removed. The whole of the brain was badly lacerated. 9. In the opinion of the doctor, the death was due to coma which was the result of ante-mortem gun shot head injury. 10. The Investigating officer completed the investigation by taking into possession the blood stained earth and simple earth from the spot and by sending it for chemical examination. The Chemical Examination Report shows that the earth was full of blood. The site-plan was prepared. An attempt to arrest the accused was made but they could not be found. Then charge-sheet was submitted on 2-3- 1978. 11. Three witnesses of fact have been examined by the prosecution (PW 1) Murli is the first informant. The Chemical Examination Report shows that the earth was full of blood. The site-plan was prepared. An attempt to arrest the accused was made but they could not be found. Then charge-sheet was submitted on 2-3- 1978. 11. Three witnesses of fact have been examined by the prosecution (PW 1) Murli is the first informant. Tirath Singh (PW 2) is another eye-witness who has scribed the first information report and belongs to village-Basdilia, PW 3 Moti Ram is of villaga-Karaula, and had gone to Sahilpur for purchase of nice and was returning from there by the same bus. The route for his village Karaula is also through the same rasta upto a certain distance and then branches towards his village. PW 4 is Moti Singh, who simply saw the last part of the occurrence namely running away of the assailants from the spot, one of them namely Rajeshwari being armed with a pistol. All other witnesses including the doctor were formal. 12. There is no dispute now as regards the fact that after the demise of Achhaibar, Murli was living at the house of Bhanumati and helping her in cultivation and other affairs. There is his sworn testimony and he has cot been cross-examined on this aspect of the matter. It is also not disputed that 13-2-1978 was the date fixed for the hearing in the mutation matter which was pending before the Sub-Divisional Magistrate. Ext. Ka-15 is the certified copy of the extract of the order-sheet of that date and it shows that the case was fixed for hearing and it was taken up in the presence of the parties. But, because the officer concerned was busy with other administrative work, hence the case was adjourned to 6-3-1978 for arguments. The fact that the presence of the parties has been mentioned, cannot be given much importance in this case because it is no bodys case that Gaya Prasad was present when the case was taken up and the order-sheet itself will show that Gaya Prasad and Bhaunmati were the two parties. It is, however, in evidence that Bhanumati was present along with Murli. This fact has not been challenged on behalf of the defence also. It has come in evidence that two of the appellants were present. The prosecution story then proceeds further. It is, however, in evidence that Bhanumati was present along with Murli. This fact has not been challenged on behalf of the defence also. It has come in evidence that two of the appellants were present. The prosecution story then proceeds further. According to Murli (PW 1) Rajeshwari-appellant had filed a criminal complaint against Bhanumati and others in Gorakhpur. This had been done prior to 13-2-1978. Summons in connection with that case came for service upon Bhanumati on li-2-1978 i. e. one day after her murder. This fact is also not denied or disputed or challenged by cross-examination, and, therefore, the testimony of Murli in this respect has to be accepted. Murli further says on oath that during the mutation proceedings, on behalf of the appellants Bhanumati was thereatened a number of time and she had lodged a complaint with the police. On this aspect of the matter also, there is no cross- examination with this witness. There is no dispute, therefore, that as between Smt. Bhanumati on the one hand and Gaya Prasad and his family members in cluding the present appellants on the other, there was enmity and hence a potent motive for the appellants to have put an end to Bhanumati. In this background of the matter when we peruse the entire evidence on the record, we find the testimony of Murli (PW 1) to be completely reliable. We have already men tioned earlier that Murli was Achhaibars brother-in-law and after the death of Achhaibar he had come to reside with Bhanumati and to look after her agriculture and her interests. There is no challenge to this contention of Murli which finds mention also in the first information report Against Murli the only argument which has been advanced is that in view of the fact that he is the husband of Smt. Dukhna who is Achhaibars sister, he was also an interested witness. 13. There is nothing on the record to show that Murli was at all hostile to Smt. Bhanumati. Dukhna had of course moved an application for mutation. It might have been any action on her part by way of reply to a mutation application moved by Gaya Prasad. 14. There is nothing on the record to show that relations between Bhanumati and Dukhna were at all strained. Dukhna had of course moved an application for mutation. It might have been any action on her part by way of reply to a mutation application moved by Gaya Prasad. 14. There is nothing on the record to show that relations between Bhanumati and Dukhna were at all strained. Our attention was drawn to the fact that Murli denied having visited his wife Dukhna for the last one year and also denied having known the name of her counsel in mutation proceedings. There are very insigificant points and cannot be considered to discard the testi mony of Murli at all. It clearly makes out the entire prosecution case true, which is to the effect that when Smt. Bhanuuati accompanied by Murli. Tirath Singh and Moti Ram PWs. 1 to 3 was proceeding towards her village through the kachcha rasta, she was way laid by the appellants who suddenly emerged from Srirams grove. Two of the appellants namely Kateshwar and Abhinandan caught hold of her and Rajeshwari fired at her head from back almost at point blank range. The post mortem examination report supports the prosecution version in this respect. The entire charge entered in the back of the head above the left ear in one mass causing a wound of the size of 4 cm X 3 cm through and through and not only fractured the occipital, left temporal, frontal and the right temporal bones and lacerated the membranes, but four metallic pellets and one wedding material embedded in the brain were removed by the doctor at the time of the post-mortem examination. Apart from these two facts, there if nothing else which has been brought out during cross-examination with witness Murli which may be considered as a circumstance to consider his evidence to be tainted. 15. The second witness is Tirath Singh (PW 2 ). His contention is that he had gone to Dumeriagauj to make purchases in connection with the impending marriage of his daugther. He gives out that ho bad made purchases of aricles of the value of about Rs. 400. He also said that the Tilak date had already been settled. It is true that the marriage was not to take place immediately and there was still sometime for it, but, he said that he tried to make purchases in advance in order to save money because prices go up during the marriage season. 400. He also said that the Tilak date had already been settled. It is true that the marriage was not to take place immediately and there was still sometime for it, but, he said that he tried to make purchases in advance in order to save money because prices go up during the marriage season. There is no reason to disbelieve his statement in this respect. His testimony is challenged on two grounds. Firstly it is contended that according to his admission, his mother is Smt. Rampati and she is having some boundary dispute with Gaya Prasad, in respect of which some legal proceedings are going on. 16. Secondly it is contended that he has appeared as a witness for Smt. Dukhna wife of Murli (PW 1) in the mutation case against Gaya Prasad. It is contended that he is thus an inimical witness and should be discarded. 17. We do not agree. Boundary dispute is a very minor matter which normally arises when the agricultural fields are adjacent. They do not generally give rise to any enmity. Then again if he had appeared as a witness in the mutation case filed by Smt. Dukhna, it does not mean that he was inimically disposed against Gaya Prasad. And in any view of the matter we are in agree ment with the learned Sessions Judge that even if these two grounds are taken to be grounds for holding that the witness is inimically disposed against the appellants his testimony can still be looked into of course with greater care and caution. He is not at all related to Achhaibar or his wife or even to Murli. At the most he is a distant collateral of Moti Singh (PW 4) but he has no connection with Murli or Smt. Bhanumati. His testimony finds complete corroboration from the testi mony of PW 1 Murli and PW 3 Moti Ram. Therefore, even after careful consideration his testimony with caution, we come to the conclusion that he is a reliable witness that he was present when the occurrence took place. He says that after committing the murder, accused persons ran away towards the north east through the grove and out of fear for them the witnesses Murli, Tirath Singh and Moti Ram also ran to Gandharia which is not very far away, lest they should also be attacked, and returned back after ten minutes. He says that after committing the murder, accused persons ran away towards the north east through the grove and out of fear for them the witnesses Murli, Tirath Singh and Moti Ram also ran to Gandharia which is not very far away, lest they should also be attacked, and returned back after ten minutes. They found the deadbody still lying in the rasta. This story has been elicited during cross-examination and it. does not in any way affect the prosecution case as a whole. We are of the opinion that the statement of Tirath Singh is also reliable. 18. The third witness Moti Ram was returning from Sahilpur. He had boarded the same bus. He also got down at Duboli Pokhra Bus stop alongwith the deceased and other witnesses. According to him, from near the grove of Sri Ram Kurmi one separate route branches off and goes to his village. He had, therefore, reason to move on that rasta. He cannot be dubbed as a chance witness. The occurrence took place on a rasta and only passengers and passers-by can be said to be the natural witnesses, because on either said of the rasta, there is neither any house nor any shop. Of course Moti Rams contention is that he had gone to Sahilpur to purchase rice. He could not purchase it on that date on account of the rates that were quoted. But he says that about one or one and a half month thereafter he did make purchase of 32 kilograms of rice. He has no enmity with either of the appellants. He has no relationship with either Smt. Bhanumati or her husband Achhaibar or Murli. We are of the opinion that he is an independent witness, and his testimony is also to be accepted. 19. Moti Singh (PW 4) simply saw three appellants of this case running away towards north-east through the grove of Sriram while he was rushing towards the scene of occurrence after easing himself near the Pokhra which has been shown in the site plan prepared by the Investigation officer, vide, Ext. Ka-10. His testimony is only in respect of the peresence of the three appellants, one of them Rajeshwari being armed with a pistol. This witness Motiram belongs to Gandharia and Gandharia has been shown in the site plan to be very close to the scene of occurrence towards the north-west. Ka-10. His testimony is only in respect of the peresence of the three appellants, one of them Rajeshwari being armed with a pistol. This witness Motiram belongs to Gandharia and Gandharia has been shown in the site plan to be very close to the scene of occurrence towards the north-west. There is no reason why hsi testimony should be discarded. The Investigating officer found blood on the spot The learned counsel for the defence has candidly conceded that the place of occurrence cannot be disbelieved. It is established from the testimony of all the witnesses as well as from the recovery of the blood stained earth from there. When the Investigating Officer reached the spot he still found the dead body lying in the rasta at point a of the site plan which according to the witnesses is the place of occurrence. 20. We have already adverted to the post mortem examination report, it clearly supports the prosecution version as regards the manner of the assault and the time when it was made. Dr. R. C. Verma (PW 8) clearly proves that the demise of Bhanumati could have taken place at about 5 p m. on 13-2-1978. According to the prosecution version the sun had not yet set when this occurrence took place. The Almanao shall show that the sun-set on that date took place at about 5. 12 p. m. 21. It may be said that the appellants had no knowledge that Bhanumati would be passing through that way on that date and hence there was hardly any occasion for them to have come prepared to lay ambush, with intention to murder her. It should not be forgotten that these appellants all belonged to the same village to which Bhanumati belonged. They are her husbands colaterals. There was a litigation with her with respect to the agricultural property of Achhaibar. Some of them and undoubtedly gone to Dumeriaganj in connection with the case. It would not be unnatural if it is said that they knew that Smt Bhanumati who had also gone to Dumeriaganj to attend the court in connection with her case, would naturally be returning back to her village after Court hours 22. It was argued that when Bhanumati was being shot at from such a close range, there was hardly any reason for Abhinandan and Kateshwar to have caught her hands The argument is not sound. It was argued that when Bhanumati was being shot at from such a close range, there was hardly any reason for Abhinandan and Kateshwar to have caught her hands The argument is not sound. It appears that the appellants had already made a plan to do so in order to ensure that the firing had the desired effect. 23. Some defence evidence was produced in this case. Sri Parshu Ram is first defence witness. He belongs to village Majhoa and he comes to say that Abhinandan is the Headmaster of a local primary school. The fact that Abhin andan teacher in a primary school in village Majhoa is even admitted to one of the prosecation witnesses. Parashuram says that since January 1978, Abhinandan was living in his house even in the night, because he was teaching students in the night also. It is in evidence that village Basdilia is only 4 miles away from viilage-Majhoa. It appears that Abhinandan was not normally residing in village Majhoa. He was normally returning back to his own village covering a distance of four miles after school hours. There is no good reason why on that particular date or even since January 1978 he should have stopped that practice, started to live in the night at the house of Parashuram. In his statement recorded under Section 313, Cr P. C. Abhinaadan himself did not make a mention of this fact that he was living in village Majhoa in the night and hence his presence on the spot was not established. Had it been a fact, he would have spoken about it in his statement and some cross-examination with the prosecution witnesses should have been made on this aspect of the matter. The short distance between Basdilia and Majhoa makes it highly improbable that Abhinandan would remain during the night in Majhoa and not return to his own village. Even if he was taking private tutions after school hours, he could safely return to his village covering a distance of four miles in the night. It was not a distance which could not be covered with convenience. Parashuram appears to be an interested witness, since Abhinandan was a teacher in his village. His testimony, therefore, cannot be accepted and has been rightly discarded by the Sessions Judge also. It was not a distance which could not be covered with convenience. Parashuram appears to be an interested witness, since Abhinandan was a teacher in his village. His testimony, therefore, cannot be accepted and has been rightly discarded by the Sessions Judge also. The plea of alibi taken on behalf of Abhinandan in such a circuitous manner inasmuch as he has not spopken about it in his statement thus not only fails but breaks down completely and the law is that when a defence of alibi is set up and it utterly breaks down there would be a strong inference that the accused-appel lant, who has set up that alibi, fails to prove that he was at a particular place where he claims to be, he should be held to be present at a place the prosecution says that he was. At any rate the line of defence adopted and his failure to sub stantiate it is an element, which it would be right to take into consideration in deciding whether or not he is guilty. The case of Sarat Chandra Dhupi v. Em peror, decided by a Special three Judges Bench of the Calcutta High Court and reported in AIR 1934 Cal 719 is an authority on this point. It was followed by a Division Bench of this Court in the matter of Sheo Shanker and another v. State, reported in AIR 1953 All 652. 24. It should not be forgotten that normally the school time last upto 4 p. m. In Primary Schools, the School close even earlier. The occurrence in this case took place at a distance of four miles from Majhoa at about 5 p. m. , the presence of Abhinandan cannot be doubted. 25. The learned counsel for the defence vehemently argued that it was a case in which the occurrence took place when it was dark and hence the real culprits could not be recognised. It is well known that even after sun set, there remains enough twi-light in which known persons atleast can always be recognised and in the present case the occurrence took place before sun set. Hence the argument that it took place when it had become dark is not tenable. 26. All the prosecution witnesses clearly state that there was sufficient light on the spot. 27. Hence the argument that it took place when it had become dark is not tenable. 26. All the prosecution witnesses clearly state that there was sufficient light on the spot. 27. We are in agreement with the learned Sessions Judge when he has come to the conclusion that as a result of meeting of minds between the accused-appellants, they had entered into a concert to commit the murder of Smt. Bhanumati and for the accomplishment of that object they suddenly way laid her slightly before sun set on the kachcha road, which leads to her village and takes off from the road coming from Duboli pokhra. At that time Rajeshwari was armed with a pistol. He used it and committed the actual murder of Smt. Bhanumati. The other two appellants caught hold of her in order to ensure that she did not run away and the aim did not fail. As such Rajeshwari was rightly convicted on a charge under Section 302, I. P. C. simpliciter and the remaining two appellants namely Kateshwar and Abhinandan under Sections 302/34, I. P. C. and each one of them was rightly awarded the sentence of imprisonment for life. 28. In the result we do not find any force in this appeal which fails and is hereby dismissed. The conviction of the appellants as returned by the learned Sessions Judge and the sentence of imprisonment for life awarded to them are upheld. 29. The appellants are on bail. Their bail bonds and sureties shall be cancelled. They shall surrender and be taken into custody forthwith to serve out their sentences. Appeal dismissed. .