Judgment 1. The appellant has been convicted for the offence punishable u/s. 302 I.P.C. and has been sentenced to undergo imprisonment for life. He has further been convicted for the offence punishable u/s. 27 of the Arms Act and has been sentenced to undergo rigorous imprisonment for three years on such count. The sentences have been ordered to run concurrently. 2. Prosecution case, in brief, is that on 26th May, 1990, at about 5 P.M. informant Rajo Paswan (P.W. 9) was having his bath on a Chapakal (Handpipe) in the compound of middle school situated south of his village Darma, P.S. Kowakol, District Nawadah. His cousin Pradeep Paswan, aged 9 years, and some boys were playing near by. At that time appellant Mohan Mahto armed with a pistol and Naro Mahto having a Khanti arrived. Approaching near by, Naro pointed out towards Pradeep and ordered for assault. Mohan who in the meantime had arrived very close, opened fire. The projectile did hit Pradeep who fell down injured. The other boys fled away. Raja rushed towards fallen Pradeep, lifted him and Pradeep succumbed to his injury. Rukmani Devi (P.W. 2) who had come to fetch water also witnessed the occurrence. Arjun Paswan (P.W. 3), Vijay Paswan (P.W. 8), Janki Thakur and others rushed from the village and saw the fleeing assailant. 3. F.I.R. was lodged at Kowakal police station 13 kms away on the same date at 8 p.m. Police, on completing investigations submitted chargesheet against Mohan and Naro who, in due Course, were put on trial before the 2nd Additional Sessions Judge, Nawadah. He framed charges against both u/s. 302 read with sec. 34 I.P.C. besides a charge u/s. 27 of the Arms Act against Mohan Mahto. On a consideration of the materials on record, the learned Additional Session Judge acquitted Naro but convicted Mohan for the offences punishable u/s. 302 I.P.C. and sec. 27 of the Arms Act and sentenced him, as above. 4. The statement u/s. 313 Cr. P.C. Mohan, allegation against him. Claiming has stated that P.Ws. have deposed falsely on account of enmity. Defence case as put to the informant (P.W. 9) in para 31 of his evidence is that Pradeep died of the gun shot fired by one Kameshwar and not by Mohan. Thus the death of Mohan by gun shot is undisputed. 5. P.C. Mohan, allegation against him. Claiming has stated that P.Ws. have deposed falsely on account of enmity. Defence case as put to the informant (P.W. 9) in para 31 of his evidence is that Pradeep died of the gun shot fired by one Kameshwar and not by Mohan. Thus the death of Mohan by gun shot is undisputed. 5. P.W. 5 Bajrangi, aged about 7 to 8 years, is a nephew of deceased Pradeep. His evidence shows that on the eventful evening, before sun set, he and Pradeep were playing in the Khalihan lying adjacent to the school. He saw Mohan loading his pistol. Pradeep raised alarm saying that Mohan was loading his pistol. Then Mohan fired at Pradeep. The projectile hit Pradeep and he died. Being terrorised by the firing, he fled away. His further evidence shows that at the time of occurrence the school was closed and there was no teacher or student. Similar is the evidence of P.W. 8 Vijay Paswan. Further evidence of P.W. 5 is that one Kameshwar was sitting on the eastern boundary wall of the school. Evidence of P.W. 4 Sakaldeo Paswan is that this boundary wall is about three feet high. Further evidence of P. W. 5 shows that he also saw Mohan loading his pistol from a distance of about one Bans (Bamboo). At that time, he was near Pradeep. The endorsement made by the trial judge shows that this child witness is capable of understanding question before answering. There appears no good reason to doubt the varasity of this natural and competent witness. 6. Evidence of P.W. 2 Rukmani Devi, an aunt of the deceased shows that on the eventful evening she had gone to fetch water from the Chapakal installed in the compound of the school. Her house is situated to the north of the school intervened by 10 to 12 houses. In such circumstances, she is likely to go to the school to fetch water. Her further evidence is that she stayed there as P.W. 9 Raja Pas wan was having his bath at the Chapakal. The school was closed as it was a holiday. P.W. 2 Bajrangi and deceased Pradeep were playing there. In such circumstances, she is likely to go to the school to fetch water. Her further evidence is that she stayed there as P.W. 9 Raja Pas wan was having his bath at the Chapakal. The school was closed as it was a holiday. P.W. 2 Bajrangi and deceased Pradeep were playing there. His further evidence shows that Mohan was armed with a pistol and Naro had a Khanti Pradeep shouted that Mohan was loading his pistol and it was then that Mohan shot him dead on being asked by Naro to do so. The projectile hit his abdomen and he died. She asserts that she saw Mohan loading his pistol and shoaling Pradeep. 7. Further evidence of P.W. 2 shows that there was no quarrel between Pradeep and Mohan. But Mohan and Kameshwar were on inimical terms from before. Similar is the evidence of P.W.4 Sakaldeo. His further evidence shows that both Mohan and Kameshwar are Rangdars i.e. persons who illegally collect tolls Rangdari Tax, relying on their muscles power and show of force. Further evidence of P.W. 2 shows that at that time, Kameshwar was sitting on a brick built wall near the school. Mohan was loading his pistol for shooting Kameshwar. Thus it appears that when Pradeep shouted that Mohan was loading his pistol, which could have alerted Kameshwar, annoyed Mohan shot at Pradeep to silence him. 8. Evidence of P.W. 9 Raja Paswan, the informant, shows that on the eventful day, a Saturday, at about 5 P.M. he was having bath on the Chapakal (Handpipe) of the village school. Deceased Pradeep along with P.W. 5 Bajrangi was playing in Ram Prasads Khalihan situated 2 to 4 yards away from the Chapakal. P.W. 2 Rukmani was there. Mohan and Naro arrived from the north. Standing on the school gate, Mohan started loading his pistol. Seeing it Pradeep raised alarm saying that Mohan had a pistol. It was then Naro said that Pradeep was raising alarm, he be killed and then Mohan opened fire at Pradeep which struck him. Pradeep fell down and died instantaneously. At that time, he was 4 to 5 yards away from Pradeep. His further evidence shows that there is no house in the vicinity of Chapakal. No one was working in any near by field. The school had no gate. It was open. The village is situated to the north of the school. Pradeep fell down and died instantaneously. At that time, he was 4 to 5 yards away from Pradeep. His further evidence shows that there is no house in the vicinity of Chapakal. No one was working in any near by field. The school had no gate. It was open. The village is situated to the north of the school. His further evidence shows that there was no dispute between Mohan and Pradeep. One Kameshwar has dispute with Mohan, Kameshwar is a Rangdar. At that time, he was standing near the school towards east. He never saw pistol in Kameshwars hand. 9. Evidence of P.W. 1 Ram Swaroop Paswan, P.W. 3 Arjun Paswan, a nephew of the deceased, P.W. 4 Sakaldco Paswan, a brother of the deceased, and P.W. 8 Vijay Paswan, all co villagers of the deceased and the appellant, shows that hearing report of gun fire, they rushed towards the place of occurrence. On their way, they saw Mohan armed with pistol and Naro with a Khanti, running away. On arriving at the place of occurrence they found Pradeep lying dead. There was firearm injury on his person. P.W. 9 Rajo was there. Evidence of P.Ws. 1, 3 and 4 shows that their houses are near the place of occurrence. Thus they are likely to rush to the place of occurrence hearing report of shooting P.Ws. 1 and 4 further say that P.W. 9 Raja named Mohan as the assailant. 10. No doubt, P.W s. 2 to 5 and 9 are relations of the deceased. But evidence on the record is that was no enmity between the family of the appellant and that of the deceased or any of the P.Ws. from before the occurrence. Then why any of the P.Ws would falsely depose against the appellant? On the other hand, they arc likely to depose to ensure that the real murderer of their near and dear is duly punished. A relation of the deceased is not likely to falsely implicate any innocent person for no reason. In fact, he would not allow the real murderer to go scot free. The above P.Ws. are natural and competent witnesses and their evidence inspires confidence. They find corroboration from each other and also from the objective findings of the medical expert, which shows that the deceased died of gun shot injury. The investigating officer P.Ws. In fact, he would not allow the real murderer to go scot free. The above P.Ws. are natural and competent witnesses and their evidence inspires confidence. They find corroboration from each other and also from the objective findings of the medical expert, which shows that the deceased died of gun shot injury. The investigating officer P.Ws. 10, has found blood on the place of occurrence. 11. There is no iote of evidence either direct or circumstantial, even to suggest remotely that Kameshwar was armed with any fire arm and he committed the murder of Pradeep. The defence case appears to be wholly improbable. 12. Referring to the following cases, the learned counsel for the appellant has argued that when out of the two accused charged u/s. 302/34 I.P.C. one accused, Naro, has been acquitted by the trial court, the other, appellant Mohan, should not be convicted on the same evidence. 13. The trial court has acquitted Naro on two grounds as appears from para 20 of its judgment. One is that he has committed no overt act and the second is that it is improbable that any person after committing the murder, would flee- towards the village. The learned Additional Sessions Judge has said that P.Ws. have said in their evidence that Naro had asked Mohan to shoot Pradeep. But still he writes in his judgment that no P.W. said that Naro committed any overt act. In my view, asking co accused to shoot the deceased is an overt act towards commission of murder. Act of incitement and abetment to commit murder is an overt act. 14. As regards the second ground, it is in evidence that Mohan is a Rangdar. Evidence is that after commission of murder, both Mohan and Naro ran towards north i.e. their village. The learned Additional Sessions Judge himself has said in para 21 of his judgment, and rightly, that the accused are Rangadar type persons and such type of persons can murder any body even on a little provocation. I agree. They are daring devil type of persons. In such circumstance it was not improbable for Mohammed Naro, who cannot be treated on par with average persons of ordinary prudence, to run towards the village after shooting Pradeep. Thus, in my view, acquittal of Naro is not justified. I agree. They are daring devil type of persons. In such circumstance it was not improbable for Mohammed Naro, who cannot be treated on par with average persons of ordinary prudence, to run towards the village after shooting Pradeep. Thus, in my view, acquittal of Naro is not justified. Advantage of wrong acquittal of his co accused cannot be taken by appellant Mohan who having been found to have murdered Pradeep has been rightly convicted and sentenced for the offence of murder u/s. 302 I.P.C. simplicitor. 15. In Krishna V/s. State of Maharashtra, four accused were put on trial for an offence u/s. 302 read with 34 I.P.C. The High Court acquitted three of them but convicted the fourth for the offence punishable u/s. 302 read with 34 I.P.C. on the ground that he had committed the offence along with one or more of the acquitted accused. Then the apex court held that the conviction of fourth accused was clearly wrong. The effect of acquittal of the three accused was that they did not conjointly act with the fourth accused in committing the murder, and in such situation the fourth accused, could not be convicted for the offence punishable u/s. 302 read with sec. 34I.P.C. for having committed the offence jointly with the acquitted persons. But the facts of the instant case are clearly different in material particulars. Appellant Mohan has not been convicted for the offence punishable u/s. 30, read with sec. 34 I.P.C. for committing the murder of Pradeep along with Naro, the acquitted person. He has been convicted of the offence, punishable u/s. 302 I.P.C. simplicitor for murdering Pradeep. 16. In B. Nath V/s. State of Orissa, two accused were charged u/s. 302/34 I.P.C. The evidence was that it was the first accused who inflicted fatal injuries on the head of the deceased while the second accused (the appellant) was catching hold of the deceased. The High Court acquitted the first accused but convicted the second accused for the substantive offence of murder u/s. 302. Then it was held that the second accused cannot be convicted for the offence of murder in absence of evidence that he caused the fatal injuries. In the instant case, acquitted accused Naro had caused no injury whatsoever. Evidence on the record is that the fatal gun shot was fired by appellant Mohan. 17. Then it was held that the second accused cannot be convicted for the offence of murder in absence of evidence that he caused the fatal injuries. In the instant case, acquitted accused Naro had caused no injury whatsoever. Evidence on the record is that the fatal gun shot was fired by appellant Mohan. 17. In Onkarnath Singh V/s. State Of UP.3., A and B were members of unlawful assembly, moved aside after other accused had given lathi blows to deceased. A was acquitted giving him benefit of doubt. But B was not given such benefit as his participation was considered to have been proved by the defence evidence and also by the fact that he had received injuries. Then it was held by the Apex Court that the prosecution had to stand on his own legs it could not take advantage of the weakness of the defence. The injuries found on B were more compatible with the conclusion that he was a victim rather than his being a participant in the assault. Facts of the instant case arc different. Mohan has received no injury. Consistent evidence of P.Ws. proves satisfactorily that it was he who opened fire killing Pradeep. Thus the prosecution stands on its own legs. It has taken no advantage of the weakness of the defence. 18. In Ashok Kumar V/s. State of Punjab, evidence was that the appellant, K and an unidentified person attacked the deceased with knives with the common intention shared by all of them and that the appellant inflicted an injury on the left Dank. One of the two injuries on the left side was simple and the other was a fatal injury which caused the death. There was nothing in evidence to show that the appellant inflicted the fatal injury. Then it was held that as the possibility of appellant causing simple injury on the left side could not be ruled out, his conviction u/s. 302 could not be sustained. But the facts of the instant case are entirely different. Here there is clear cut evidence that it was Mohan alone who caused the fire arm injury to Pradeep leading to his death. In view of it, this decision also is of no assistance to the appellant. 19. In Uma Shakar V/s. State Of UP. 5, enmity between the parties was admitted. Here there is clear cut evidence that it was Mohan alone who caused the fire arm injury to Pradeep leading to his death. In view of it, this decision also is of no assistance to the appellant. 19. In Uma Shakar V/s. State Of UP. 5, enmity between the parties was admitted. According to the F.I.R. all the three accused shouted that the deceased should be killed. But prosecution witness attributed overt act of incitement only to one of them. Then it was held that the accused was entitled to benefit of doubt as there was a very reasonably possibility of false implication. But in the instant case evidence shows that there was no enmity between Mohan and Pradeep. Hence question of false implication does not arise. According to the F.I.R. it was Mohan who opened fire killing Pradeep and the evidence adduced by the prosecution is that it was Mohan who shot at Pradeep killing him. Thus there is no charge in the prosecution case in the F.I.R. and the prosecution evidence adduced in Court. The overt act attributed to the appellant in the F.I.R. and by the P.Ws. in Court in the same. There appears no reason for false implication of Mohan by any of the P.W 5. 20. In Tara Devi V/s. State of UP. 6, Tara Devi and her paramure H were tried for murder of Taras husband. The trial court acquitted paramure H but convicted Tara Devi. The Apex Court found that when the main accused H who committed the crime, was acquitted, there was no justification to maintain the conviction and sentence of Tara Devi. In the instant case, the main accused is Mohan who wielded the pistol and caused the death of Pradeep by means of gun shot. He has not been acquitted but convicted for murder. 21. In Kishore V/s. State of Maharashtra, question of exceeding right of private defence was involved. But such a plea has not been taken by the appellant in this case in hand. 22. In Harendra Nr. Singh V/s. State of Bihar A.I.R. 1991 S.C. 1842 question of possibility of two views on the evidence adduced in a case of circumstantial evidence was involved. But this case is of direct evidence which leads the court to hold one view only that the appellant is the murderer. 23. 22. In Harendra Nr. Singh V/s. State of Bihar A.I.R. 1991 S.C. 1842 question of possibility of two views on the evidence adduced in a case of circumstantial evidence was involved. But this case is of direct evidence which leads the court to hold one view only that the appellant is the murderer. 23. From the above discussion of evidence, circumstances and probabilities of the case, I am of opinion that the order of conviction and sentences passed against appellant Mohan does not call for any interference. His appeal deserves dismissal. It is hereby dismissed.