P. P. GUPTA, J. ( 1 ) THESE are two connected appeals filed by Raja Ram (Criminal Appeal No. 3307 of 1978) and Bans Gopal and Shyam Pal (Criminal Appeal No. 3308 of 1978) against the judgment and order dated 22-11-78 passed by Sri Surya Prasad, Ivth addl. Sessions Judge, Fatehpur in connected Sessions Trial No. 171 of 1978 and 408 of 1977 convicting the appellants u/s. 302 read with S. 34, IPC and sentencing each of them to imprisonment for life. ( 2 ) THE charge against the appellants is that they on 17-6-77 at 1 p. m. in furtherance of their common intention, committed the murder of Sahdeo son of Pancha Garedia resident of village Laxmi Narainpur, police station Thariyon, district Fatehpur in the Usar land lying towards the east of village Chaturwa-ka-purwa within the P. S. Hathgaon, district Fatehpur. ( 3 ) BRIEFLY stated, the prosecution story is that the accused Raja Ram is resident of village Laxmi Narainpur. The other two accused Bans Gopal and Shyam Pal are residents of Mohalla Maswani City, Fatehpur. They are cousins and are maternal uncles of the accused Raja Ram. ( 4 ) ABOUT 8 months before this occurrence, the accused Raja Ram abducted the wife of Sahdeo who had developed illicit connections with each other. A report was lodged at the police station by Sahdeo. He also obtained a search and arrest warrants against Raja Ram. Raja Ram. however could not be arrested. Neither Raja Ram nor his wife were traceable. About a month before the murder of Sahdeo, Jagat Pal, the father of the accused Raja Ram. was murdered. In connection with that murder Sahdeo was arrested and taken to the police station. It was suspected that Sahdeo had a hand in the murder of Jagat Pal on account of this there was bad blood between Raja Ram and Sahdeo. They were inimical to each other. ( 5 ) ON 17-6-77, Sahdeo, Gauri, Mahadeo, Pusu and Ram Autar were going to Chhivlaha market for selling their goats. When they reached near two Mahuwa trees standing near Usar land situate towards cast of village Chhatuwa purwa at about 1-30 p. m. Suddenly. all the three accused emerged from behind these trees. Accused Raja Ram and Bans Gopal were armed with pistol and Shyam Pal was armed with lathi. When they reached near two Mahuwa trees standing near Usar land situate towards cast of village Chhatuwa purwa at about 1-30 p. m. Suddenly. all the three accused emerged from behind these trees. Accused Raja Ram and Bans Gopal were armed with pistol and Shyam Pal was armed with lathi. Raja Ram exhorted the other co-accused to kill Sahdeo whereupon Sahdeo ran towards north. He was, however, surrounded by all the three accused. Raja Ram and Bans Gopal fired from their pistol at him and Shyam Pal also struck lathi blow. Sahdeo fell down on the ground. Taking advantage of it, Raja Ram fired his pistol at him at a very close range. Consequently Sahdeo received pistol shot injuries and died instantaneously. The witnesses ran to his rescue and also raised alarm but the accused managed to run away towards the west. After this occurrence, Gauri lodged an oral FIR at P. S. Hathgaon where the case was registered. ( 6 ) S. O. of P. S. Hathgaon Sri V. D. Verma reached the place of occurrence and prepared panchnama and other necessary documents. The dead body of Sahdeo was sent for post-mortem. The blood stained and plain earth was also collected from the place of occurrence which was sealed in two different containers. He also found an empty cartridge, 4 tiklies and pair of shoes lying at the spot which were also taken into custody by him. ( 7 ) ON 18-6-77 at 1-30 p. m. Dr. A. C. Srivastava conducted the post-mortem examination on the dead body of Sahdeo and found the following ante-mortem injuries on his body. (1) Gun shot wound of entry 1" x 1" through and through on right side of face 1/2" below and front of right ear. Blackening and tattooing were present, margins were lacerated and inverted with fracture of right mandible. Right maxilla larynx trachea left mandible, left maxilla. One gun shot was recovered from left maxilla. Wadding piece was recovered from larynx. Direction was from right to left, fracture of - (2) Gun shot wound of exit (four in number) on left side of face in an area of 31/2 x 3" through and through to injury No. 1 each wound 1/5" x 1/5" incise about 1" x 8" apart each other. No blackening or tattooing was present. Margins were overted. Direction was from right to left, fracture of - (2) Gun shot wound of exit (four in number) on left side of face in an area of 31/2 x 3" through and through to injury No. 1 each wound 1/5" x 1/5" incise about 1" x 8" apart each other. No blackening or tattooing was present. Margins were overted. ( 8 ) IN the opinion of the Doctor the cause of death was due to shock and haemorrhage as a result of fire-arm injuries. Stomach and small intestine were empty while large intestine was full of contents. ( 9 ) BESIDES formal witnesses, the prosecution examined three eyewitnesses namely P. W. 1 Gauri, P. W. 2 Mahadeo and P. W. 3 Ram Autar. Out of them Ram Autar turned hostile. Since the formal proof of post-mortem examination report was dispensed with the Doctor was not examined. ( 10 ) THE accused did not plead guilty to the charge, they stated that they had been falsely implicated on account of enmity. They did not lead any evidence in their defence. ( 11 ) THE appellants were represented by S/sri V. C. Tewari and R. B. Sahai, Advocate and State by the A. G. A. Sri A. K. Dwivedi. They were heard at length and the entire record of the case was perused. ( 12 ) IT is not disputed that the accused Raja Ram and the complainant Gauri (P. W. 1) and Mahadeo (PW2) are residents of the same village Laxmi Narainpur, P. S. Thariyon, district Fatehpur. Gauri is the nephew of Sahadeo Deceased. Mahadeo (P. W. 2) ids the real brother of Sahadeo. This fact has also not been challanged that one Smt. Giahari was the second wife of Sahadeo. Smt Gilhari was absued by accused Raja Ram. Sahadeo lodged proceedings under S. 498, IPC against Raja Ram. He also obtained a warrent of arrest against the accused Raja Ram and Smt. Gilahari. He went to Jhansi where Raja Ram was living but there was no trace of either of them and so they could not be arrested. However, 8 months after her elopment, Smt. Gilhari, was brought back to his house by Sahadeo. Thereafter she started living with him. On the date of murder of Sahadeo, she was in the house of Sahdeo as her statement was recorded by the Investigating Officer. However, 8 months after her elopment, Smt. Gilhari, was brought back to his house by Sahadeo. Thereafter she started living with him. On the date of murder of Sahadeo, she was in the house of Sahdeo as her statement was recorded by the Investigating Officer. She however, again left the house of Sahdeo after his murder sometime in the month of September or October 1978. This fact is also not in dispute that Jagat Pal, father of the accused Raja Ram, was murdered about a month before the murder of Sahdeo. According to the prosecution, the terms between the accused Raja Ram and Sahdeo were strained and they bore enmity with each other. All the three accused, in their statements u/s. 313, Cr. P. C. have stated that they have falsely been implicated in the case due to enmity. Thus, it is not disputed that the terms between the accused Raja Ram on one side and Sahdeo on the other were inimical. According to the prosecution, the appellants committed the murder of Sahdeo on account of these strained relations. ( 13 ) ACCORDING to the FIR the murder of Sahdeo was committed near Mahuwa trees standing in the Usar land towards east of village Chhatuwa-ka-purwa. According to the panchayatnama Ex. Ka-3, the dead body of Sahdeo was found by the Investigating Officer lying on the said Usar, so is the statement of Sri V. D. Verma, the I. O. From that place an empty cartridge of 12 bore, 4 tiklies and pair of shoes were also found by the I. O. Blood was also there, which along with the plain earth was collected and sealed by the I. O. It was sent to the Chemical Examiner for examination who found on examination that the blood stains on the earth were of human blood. There is consistent statement of P. W. 1 Gauri and P. W. 2 Mahadeo that Sahdeo was murdered in the said Usar. Their statements coupled with all the above facts and circumstances go to establish beyond doubt that Sahdeo was murdered in the Usar towards east of the village Chhatuwa-ka-purwa. It may be noted that the place of occurrence has also not been challenged on behalf of the appellants. ( 14 ) THE prosecution case is fully proved from the testimony of the eyewitnesses P. W 1 Gauri and P. W. 2 Mahadeo. It may be noted that the place of occurrence has also not been challenged on behalf of the appellants. ( 14 ) THE prosecution case is fully proved from the testimony of the eyewitnesses P. W 1 Gauri and P. W. 2 Mahadeo. Undoubtedly, Gauri is the nephew and Mahadeo is the rea1 brother of deceased Sahdeo. The fact that both the witnesses are close relatives of deceased Sahdeo will be no ground to discard their testimony. The veracity and authencity of their statement is to be judged from the attending facts and circumstances of the case. Both of them have stated that in the day and time of occurrence they were going to the weekly market in village Chhivalha to sell their goats. Sahdeo was ahead of all of them. At about 1-30 p. m. Sahdeo reached near the usar of Dhaundkipur. Thus Usar is also known as the Usar of Sipari and Chhatuwapur. There are two mahuwa trees besides the Rasta. As soon as Sahdeo reached near the mahuwa trees, all the three accused Raja Ram, Shyam Pal and Bans Gopal emerged from behind the trees. Raja Ram and Bans, Gopal were armed with pistol and Shyam Pal was armed with a lathi. Raja Ram exhorted that Sahdeo should be killed whereupon Sahdeo ran towards north. He was, however surrounded by all the other co-accused. Raja Ram and Bans Gopal fired from their pistol at him whereas Shyam Pal gave a lathi blow, Sahdeo fell down whereupon Raja Ram fired his pistol at him at a very close range which hit him causing his instantaneous death. They ran after the accused who managed to run away towards west. There is no reason why their statements should not be believed. It has not been challenged that on the date of occurrence no weekly market was held in Chhivalha market. The statement of both these witnesses is consistent with the FIR. The medical testimony also corroborates their occular evidence. The place and time of murder of Sahdeo is also fixed. It is common knowledge that in villages people take their first meals in the morning by 9 a. m. In all probability, therefore, the food must have fully digested by 1 p. m. which is time at which the murder of Sahdeo took place. The place and time of murder of Sahdeo is also fixed. It is common knowledge that in villages people take their first meals in the morning by 9 a. m. In all probability, therefore, the food must have fully digested by 1 p. m. which is time at which the murder of Sahdeo took place. As has been said above, the Docto who performed autopsy on the dead body of Sahdeo, did not find any food in the stomach of Sahdeo. We do not find any such infirmity in the testimony of these two witnesses so as to discard it as unworthy of credence. ( 15 ) IT was vehementaly argued before us that the FIR was ante-timed. The basis for this argument is that as three fire-arm wounds were found on the dead body of Sahdeo and by that time it could not be said with certainty as to whether they were result of 2 or 3 shots, it was intelligently incorporated in the FIR that three shots were fired without mentioning whether all of them hit Sahdeo or not. This argument does not appear to have any force. It is also in the FIR that the accused Shyam lead also wielded his laathi at Sandeo. There is no lathi injury on his body. Had the FIR been lodged after seeing the injuries of Sahdeo, the fact that Shyam Pal wielded his lathi at Sahdeo would not have been there in the FIR because by saying so the prosecution was not going to gain anything further. The Investigating Officer Sri V. D. Verma reached the village at 7-30 p. m. The Inquest Report was prepared by him by 11-45 p. m. The Inquest Report and other necessary papers prepared by the I. O. bore the crime number and other necessary details. Had the FIR been lodged thereafter, these particulars would not have been there. All these facts and circumstances are, therefore, sufficient to repel these arguments that the FIR was ante-timed. ( 16 ) IT was next argued that the medical report does not corroborate the ocular testimony of the witnesses which itself is in conflict with the FIR. Our attention was drawn to the averments made in the FIR that Shyam Pal struck a lathi blow on the back of deceased Sahdeo as a result of which he fell down. ( 16 ) IT was next argued that the medical report does not corroborate the ocular testimony of the witnesses which itself is in conflict with the FIR. Our attention was drawn to the averments made in the FIR that Shyam Pal struck a lathi blow on the back of deceased Sahdeo as a result of which he fell down. There was, however, no lathi injury on the body of Sahdeo in the post-mortem examination. If we go through the FIR minutely, we will find that there is no such averment therein that the lathi blow given by the accused Shyam Pal did hit Sahdeo on his back. It has come in the statement of prosecution witnesses P. W. 1 Gauri and P. W. 2. Mahadeo that at the time of incident Sahdeo was about 200 paces ahead of them. That being so, it could not be possible for these witnesses to have seen whether the lathi did fall on the back of Sahdeo or not. This is exactly what both these witnesses have stated in their statements on oath. They have said that they could not really see whether lathi actually hit Sahdeo or not. In the circumstances, no adverse inference can be drawn from the fact that no lathi blow was found on the back of Sahdeo. From the statement given by the witnesses and also from the FIR, it cannot be said that the lathi blow did really land on the back of Sahdeo. As such, we do not find any contradiction in the ocular and medical evidence. ( 17 ) IT was next argued before us that the fact that Sahdeo was 200 paces ahead, the witness has given voluntary statement. The question put to P. W. 1 Gauri was regarding the distance between Pusu and Sahdeo and not the distance between him and Mahadeo and Sahdeo. It is of course true that the answer was not in reply to the specific question put to the witness Gauri who seems to have voluntarily given this statement. But no adverse inference can be drawn from it. Firstly because the defence had full opportunities to cross-examine this witness further on this point. Secondly, the other witness P. W. 2 Mahadeo has also given a similar statement which cannot be said to have been given voluntarily by him. But no adverse inference can be drawn from it. Firstly because the defence had full opportunities to cross-examine this witness further on this point. Secondly, the other witness P. W. 2 Mahadeo has also given a similar statement which cannot be said to have been given voluntarily by him. Therefore, we find no force in the argument that this distance of 200 paces between Sahdeo and this witness had been created so as to make the statements of the witnesses that they could not see whether the lathi landed on the back of Sahdeo or not. ( 18 ) OUR attention was also drawn to the statement of Gauri (P. W. 1) wherein he has stated that all the three shots were fired from one place. It was, therefore, argued that since the fatal shot was fired from a close range it is unbelievable that other two shots fired at Sahdeo would have been missed. We have given our anxious thought to it but do not find any force in this argument. From the same place, it is not meant from the same point. It has come in the statments of the prosecution witnesses that on being challenged by the accused Raja Ram, the deceased ran about 20 paces away in the north when he was surrounded by all the three accused. It was then that the two accused namely Raja Ram and Bans Gopal fired from the pistol at him. Shyam Pal wielded the lathi whereafter Sahdeo kneeled down and fell down when Raja Ram fired the fatal shot with his pistol killing Sahdeo instantaneously. The occurrence took place in broad day light at one P. M. The accused must have had the reasonable apprehension of being seen or caught by the people around them. The victim Sahdeo also tried to run away from the spot. If in this situation the fire missed to hit Sahdeo there can be no surprise. It also can be visualised that after seeing him surrounded and also having heard the firing of two shots, Sahdeo became unnerved resulting into his falling down on the ground. Since the distance was only 20 paces from the accused, there is no surprise if he was over-powered and surrounded by the accused. It was then that Raja Ram fired the shot from a close range hitting Sahdeo on his face. Since the distance was only 20 paces from the accused, there is no surprise if he was over-powered and surrounded by the accused. It was then that Raja Ram fired the shot from a close range hitting Sahdeo on his face. Therefore, on the facts and circumstances of the case it cannot be said that all the three shots were fired from any static point even though the place was same being said by approximation. The earlier two shots did not hit Sahdeo and that was the reason for firing the third shot. The recovery of pellets, tikalies and the fired cartridge on the spot by the I. O. fully corroborates the prosecution case. ( 19 ) LASTLY, it was argued that the only independent witness Ram Autar has not supported the prosecution story and so the related witness should not be believed. We do not find any force in this argument. We have gone through the statement of this witness Ram Autar. He has stated that on the day of occurrence he was going to Chhivalha market but he was alone. So this fact is borne out from his testimony also that on the day of occurrence weekly market was held in Chhivalha where he was going. It is also the case in the FIR that this witness Ram Autar was also with the informant and Sahdeo when they were going to Chhivalha market. P. W. 1 Gauri has stated that because Ram Autar cultivates the field of Raja Ram he is not willing to speak true. P. W. 3 Ram Autar has admitted in his cross-examination that he cultivates field of Raja Ram. Had it not been a fact that Ram Autar was also going to Chhivalha market along with Sahdeo. Gauri and others, his name would not have found place in the FIR lodged by Gauri who knew that Ram Autar was cultivating the fields of the accused Raja Ram. This is also indicative of the fact that the FIR lodged by Gauri is fair and not manipulated allegedly lodged after deliberations with the Investigating Officer. Gauri and others, his name would not have found place in the FIR lodged by Gauri who knew that Ram Autar was cultivating the fields of the accused Raja Ram. This is also indicative of the fact that the FIR lodged by Gauri is fair and not manipulated allegedly lodged after deliberations with the Investigating Officer. ( 20 ) LASTLY it was argued that the case of the appellants Bans Gopal and Shyam Pal is distinguishable from the case of Raja Ram since Shyam Pal is said to have given a lathi blow which did not hit Sahdeo while the firing by Bans Gopal with his pistol also did not hit him. In the circumstances, it was argued, that their false implication in the case cannot be ruled out. We are, however, unable to agree with this argument. It is the consistent case in take FIR fully corroborated by the eye witnesses P. W. 1 Gauri and P. W. 2 Mahadeo that Bans Gopal had discharged his pistol and Shyam Pal had wielded a lathi at Sahdeo whereafter appellant accused Raja Ram fired the fatal shod at Sahdeo. In these circumstances it cannot be said that those two did not share the common intention of committing the murder of Sahdeo with Raja Ram. They have, therefore, rightly been convicted S. 302 read with S. 34, IPC. ( 21 ) IN view of the above discussion, both the appeals are hereby dismissed. All the three appellants namely, Raja Ram, Bans Gopal and Shyam Pal who are on bail will surrender to serve out their sentences. Appeals dismissed.