JUDGMENT G.D. Dube, J. - Appellant Sheo Sagar Singh was convicted and sentenced to imprisonment for life under Section 302, I.P.C. by Fifth Additional Sessions Judge, Fatehpur. Appellants Sheo Sagar Singh, Ram Singh alias Baba Singh and Ram Pyare Singh were each convicted and sentenced for imprisonment for life under Section 302, read with Section 34, I P.C. Aggrieved by this order, the present appeal has been preferred. The sentence awarded to appellant Sheo Sagar Singh was directed to run concurrently. 2. The prosecution case is that Ram Singh alias Bipati (deceased; was an accused in the murder of one Mahesh Singh along with others. He had been released on bail. At about 3.00 p.m. on 1.1.1976, he had been grazing his cattle in the fields of village Adampur, Police-Station Kalyanpur, district Fatehpur. At that time, Sheo Sagar Singh arrived at the place where Ram Singh was present. An exchange of words had taken place between them. Ram Singh had thereupon chased Sheo Sagar Singh with a lathi in his hand. Chandrika Prasad and Bhure Singh had intervened. Sheo Sagar Singh had threatened that he would soon take revenge. Ram Singh had informed about this threat of Sheo Sagar Singh to his brother, Kesho Singh. Same evening, Ram Singh and Kesho Singh had gone to the house of Babu Ram Singh in the aforesaid village to participate in a Katha. There was arrangement for a feast also. A petromax was burning in front of the house of Babu Ram Singh. After the Katha was over, Keshso Singh and Ram Singh took Prasad and started for their house. When they had reached the house of Fateh Bahadur Singh, Sheo Sagar armed with a double barrel gun, Ram Pyare and Ram Singh alias Baba Singh armed with lathis came and surrounded Ram Singh. Ram Singh alias Baba Singh exhorted Sheo Sagar Singh that the enemy is before him and he should kill. Sheo Sagar Singh aimed and fired at Ram Singh alias Bipati Ram Singh fell down receiving gun-shot injuries. At that time Jwala Singh, Surajbhan Singh, Babu Ram Singh, Daijit Singh and Kallu Singh had seen the occurrence. They had challenged the assailants. Since Sheo Sagar Singh went away threatening that he has to kill more and then only the revenge will be complete. Ram Singh died at the spot. 3. At that time Jwala Singh, Surajbhan Singh, Babu Ram Singh, Daijit Singh and Kallu Singh had seen the occurrence. They had challenged the assailants. Since Sheo Sagar Singh went away threatening that he has to kill more and then only the revenge will be complete. Ram Singh died at the spot. 3. After the occurrence, Kesho Singh (P W. 1) dictated report to Rajendrapal Singh. He went to police station Kalyanpur, district Fatehpur and lodged a report at 11.40 p.m. same day. 4. The investigation of this case was taken up by S. N. Tewari, Station officer of Police-Station Kalyanpur. He interrogated Kesho Singh at the police-station. He went to the spot and got an inquest report prepared under his direction. The dead-body was sent in a sealed cover to the mortuary along with necessary papers. He collected blood stained and plain earth from the spot. He recovered one pellet near the dead-body and took it in his possession. He had found a petromax burning below the Chhappar of Babu Ram. After making other investigation, he had submitted charge-sheet against the appellants. 5. The prosecution had examined seven witnesses. Out of them Kesho Singh (P.W. 1), Jwala Singh (P.W. 2), Babu Singh (P. W. 3) and Kallu Singh (P.W. 5) are eye-witnesses. Kare Deen Singh (P.W. 6) is a Constable Moharrir who had registered the case and prepared check report on the basis of the written report. Dr. B. K. Agarwal (P.W. 4) had conducted post- mortem of the dead body at 2.45 P.M. on 3.1.1976. He opined that the age of the deceased was about thirty years. He had died about one-and-a-half days back. The following ante-mortem injuries were found on his person : 1. Gun-shot wound of entry 1" x 1" x abdominal cavity deep 4" above umbilicus in mid line loops of intestine and omentum presenting. Blackening and tatooing were present. Direction was from front to back. 2. Gun-shot wound of exit " x " x above. Meant cavity deep on the right side back 2" x mid-line and 3" above illiac crest (right) --Blackening and tatooing were present. 6. On internal examination, he had found that three shots of " x " were pulpable on right side back and one shot of same size on left side back. These four pellets had been removed. Meant cavity deep on the right side back 2" x mid-line and 3" above illiac crest (right) --Blackening and tatooing were present. 6. On internal examination, he had found that three shots of " x " were pulpable on right side back and one shot of same size on left side back. These four pellets had been removed. The walls of the abdomen had haemetuna 1" x 1" around injury No. 1 in abdominal wall anteriorily. The abdominal cavity contained 3 lbs. of blood mixed with digested food. The small intestine had a wound 1" x 1" through and through 6" from duodenum. Large intestines were empty. The doctor had opined that the deceased had died as a result of shock and haemorrhage occasioned by gun-shot wound. He had also opined that the injuries were sufficient in ordinary course of nature to cause death. 7. The appellants had pleaded not guilty to the charges. They had alleged that they had been implicated in this case on account of enmity. The learned Additional Sessions Judge believed the prosecution story and convicted and sentenced the appellants as stated above. 8. It has been argued by learned counsel for the appellants that it is a case of single shot. It is, therefore, possible that it is a case of hit and run. The stomach of the deceased contained digested food. The presence of this digested food is not explained by the prosecution. It was urged that according to Kesho Singh (P.W. 1), the deceased and this witness were to take food on the return. Hence the very theory of the prosecution becomes doubtful. It was urged that the presence of the digested food itself speaks that the deceased was killed after about four to six hours of taking meals. The prosecution story was, therefore, false and the report appears to have been ante-time It was also urged that the other eye witnesses had not supported prosecution story. The statement of Kesho Singh was not of such a character which could be termed as wholly reliable. Therefore, there was no satisfactory evidence to prove the prosecution case. 9. Learned A. G. A. urged that Kesho Singh is the brother of the deceased. On account of this relationship his evidence cannot be discarded. He being the real close relative would not spare the real assailants. Therefore, there was no satisfactory evidence to prove the prosecution case. 9. Learned A. G. A. urged that Kesho Singh is the brother of the deceased. On account of this relationship his evidence cannot be discarded. He being the real close relative would not spare the real assailants. His statement, on scrutiny, appears to be of the category of wholly reliable witness. It was urged that even the hostile witness supported the prosecution story as far as it pertains to the date, time and place of occurrence. Hence, it cannot be deemed that the deceased was killed sometime late in the night and the prosecution story was cooked after arrival of the police. 10. Jwala Singh (P.W. 2) had stated that, at the time of occurrence, he was sitting in front of his house and was warming himself from a fire burning in front of his house. At that time, he had heard sound of gun-fire. He rushed towards the place of occurrence and saw three persons running away. Two had lathis whereas the third had a gun. He stated that he could not recognise the assailants. The witness Jwala Singh is the son of Bhure Singh. The house of this Bhure Singh has been shown towards east of the house and Baithaks of Fateh Singh and Babu Ram Singh respectively. The place from where he is said to have seen the occurrence, has been shown by letter "F" in the site plan. It is the south-eastern corner of the house of Jwala Singh. The place, where the dead-body was lying, was shown at point "B". The gas lantern is said to have been burning at point "A". The distance between points `B' to `F' has been shown as thirteen steps. The point `B" was situated towards southeast of point "A" where the lantern was burning In this situation, the light of gas-lantern would have been falling towards back of the deceased. The assailants are said to have run away towards south and then east. Keeping in view this topography, it is apparent that Jwala Singh was at a considerable distance from the assailants. The light of gas-lantern could have not fallen on the faces of the assailants. In these circumstances, it was not at all possible for Jwala Singh to have recognised the assailants. Therefore, the statement of Jwala Singh is not of much consequence for the prosecution. 11. The light of gas-lantern could have not fallen on the faces of the assailants. In these circumstances, it was not at all possible for Jwala Singh to have recognised the assailants. Therefore, the statement of Jwala Singh is not of much consequence for the prosecution. 11. Babu Ram Singh (P W. 3) is the person at whose house the Katha was performed and parshad was distributed. He stated that when gun-fire was shot towards the deceased he was inside his house. He too had been declared hostile. Nothing was elicited by the prosecution which could show that he could have recognised the assailants. Babu Ram Singh would have been obviously inside his house at the time of occurrence. There was no probability that he would have been outside the house as to be able to see the actual act of killing of Ram Singh alias Bipati. 12. Kallu Singh (P.W. 5) had also not supported the prosecution story. He, however, stated that Ram Singh was killed at the alleged time and date by gun-fire at him. He stated that he could not recognise the assailants. He is a resident of another village named Basant Khare. He stated that he had gone to meet his mother's sister. In his cross-examination, the prosecution was not able to elicit any fact. 13. Kesho Singh (P. W. 1) is brother of the deceased. He has stated that he had seen the assailants. His presence along with Ram Singh cannot be doubted. It was probable that both Kesho Singh and Ram Singh had gone to the house of Babu Ram Singh to participate in the Katha. Kesho Singh has stated in cross-examination that he had not taken any meal. Towards the end of his cross-examination, he admitted that they were planning to take meals at their residence after return from the house of Babu Ram Singh which was not at all probable. Kallu Singh (P.W. 5) has stated in his examination-in-chief that he had taken meals at the house of Babu Ram Singh between 12.00 and 1.00 in the night. The presence of digested food in the stomach of the deceased was of a very small quantity. It was only four ounces. It would be worth noticing that 16 ounces are equal to one pound. One pound is almost equal to 469 gms. Two pounds are equal to one seer. The presence of digested food in the stomach of the deceased was of a very small quantity. It was only four ounces. It would be worth noticing that 16 ounces are equal to one pound. One pound is almost equal to 469 gms. Two pounds are equal to one seer. One seer is equal to 937.5 gms, On this calculation, the weight of four ounces comes to about 120 gms. Considering this small quantity of food, it cannot be said that Ram Singh had already taken meal before the occurrence. It is possible that he might have taken some thing in the evening and that was present at the time of his murder in stomach and abdominal cavity. The large intestines were empty. Keeping in view these factors, nothing turned out in favour of the appellants. The defence has not elicited any material in cross-examination of Kesho Singh to indicate that Ram Singh had actually taken his meal before the occurrence. Nothing turns out in, favour of the defence on the evidence that the doctor had found some semi-digested food in the stomach of the deceased at the time of post-mortem. 14. The presence of Kesho Singh at the time of Katha had been stated by Babu Ram Singh (P.W. 3). He too had stated in his examination-in-chief that while Kesho Ram Singh was returning after taking Parshad, Ram Singh was killed in front of the house of Fateh Singh. The place shown by letter "B" is just in front of the house of Fateh Singh. In this way, the statement of Kesho Singh that he was accompanying the deceased at the time of ocurrence is corroborated from the statement of Babu Ram Singh (P.W. 2). We do not find any ground to disbelieve the statement of Kesho Singh. 15. The report in this case was lodged within three hours fifteen minutes. From the check report (Ext. Ka-3), it transpires that the police station was situated at a distance of six miles from the place of occurrence. Kade Deen Singh (P.W. 6) had stated that he had recorded the report at 11.45 p.m. on the very date of occurrence. This fact had not been challenged in the cross-examination. Only this much was suggested that the report had been lodged after consultation with the police. Kade Deen Singh (P.W. 6) had stated that he had recorded the report at 11.45 p.m. on the very date of occurrence. This fact had not been challenged in the cross-examination. Only this much was suggested that the report had been lodged after consultation with the police. Since the report was lodged quite promptly, we do not find that it contained any fact which could have been introduced by the police. From the statement of the Investigating Officer, it transpires that he had interrogated Kesho Singh at the very police-station. No fact has been brought on record to show that prior to lodging of the report the police had any hand in carving out the prosecution story. From the statement of Kesho Singh also it does not appear that the police had any interest in the matter to give a twist to the prosecution story and interfere in the very lodging of the report. We find that Kesho Singh had lodged a report without any intervention of the police. The report (Ext. Ka-3) is an unembellished version. 16. We do not agree with the contention of learned A. G. A. that the statement of Kesho Singh about the earlier incident at 3.00 p.m. is admissible under Section 6 of the Evidence Act Kesho Singh had stated that in the evening Ram Singh had narrated the incident which had taken place in the field at the time of grazing the cattle with Sheo Sagar Singh. Section 6 of the Evidence Act reads as under : "6. Facts which though not in issue are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places." 17. Under this section in order to make some facts admissible under the technical expression, resgestae the facts and the acts must form part of the same transaction. The happenings in the field between the deceased and Sheo Sagar Singh cannot amount to form part of the same act of murder taken place at 8.30 P.M. same night. Hence the statement of Ram Singh alias Bipati made to Kesho Singh is not admissible under Section 6 of the Evidence Act. The happenings in the field between the deceased and Sheo Sagar Singh cannot amount to form part of the same act of murder taken place at 8.30 P.M. same night. Hence the statement of Ram Singh alias Bipati made to Kesho Singh is not admissible under Section 6 of the Evidence Act. At the best, the statement may be relevant only to the effect that Ram Singh had informed him that he was threatened by Sheo Sagar Singh in the evening that he would soon take revenge. Since this was sufficient to indicate the mind of the accused, they were out to take revenge. 18. For the reasons mentioned above, we find that the lower court had not erred in believing the version of Kesho Singh. His presence at the place of occurrence cannot be doubted. The presence of light at the spot was also established beyond doubt. Hence Kesho Singh could have easily recognised the assailants at the time of occurrence. We find that the lower court had not erred in holding that Sheo Sagar Singh had fired at the deceased at the exhortation of his two companions Ram Singh alias Baba Singh and Ram Pyare Singh. Their common intention was apparent from this fact that they had come and Ram Singh and Ram Pyare Singh had exhorted Sheo Sagar Singh to kill Ram Singh alias Bipati. The act of Sheo Sagar Singh aiming his gun and firing towards the deceased also indicated an intention to commit murder of Ram Singh. We, therefore, find that the lower court had not erred in holding the appellants guilty of murder. 19. We are surprised that while holding Sheo Sagar Singh guilty of murder under Section 302 I.P.C. the trial Court had held him again guilty under Section 302 with the aid of Section 34, I.P.C. He cannot be held guilty under Section 302 read with Section 3a, I.P.C. only the other two Ram Singh and Ram Pyare Singh could be held guilty of offence under Section 302 read with Section 34, I.P.C. 20. No other point has been pressed. 21. The appeal fails. The judgment and order of the lower court are modified to this extent that the conviction of appellant Sheo Sagar Singh under Section 302 read with Section 34, I.P.C. is set aside. No other point has been pressed. 21. The appeal fails. The judgment and order of the lower court are modified to this extent that the conviction of appellant Sheo Sagar Singh under Section 302 read with Section 34, I.P.C. is set aside. The sentence awarded to Sheo Sagar Singh under Section 302 read with Section 34, I.P.C. are maintained. Their bail bonds are cancelled. They be taken into custody to serve out their sentences.