JUDGMENT M.K. Mukherjee, C.J. - Dalganjan of village Swasa Bujurg, within the police station of Benwar in the district of Hamirpur along with his three sons, Kamta, Saheb and Ganesh, was assigned before the Sessions Judge, Hamirpur, for the murder of Babu Singh of their village and the attempted murder of his brother, Suraj Pal Singh, on June 9, 1976. On conclusion of the trial, the learned trial Judge convicted Kamta under Section 302 of the Indian Penal Code and the other three under Section 302/34 of the Indian Penal Code and sentenced each of them to imprisonment for life. Kamta, Saheb and Ganesh were also convicted under Section 307 of the Indian Penal Code and their father was convicted under Section 307/34 of the Indian Penal Code. For such conviction, they were sentenced to suffer rigorous imprisonment for four years, each with a direction that the sentences impose upon each of the accused shall run concurrently. Aggrieved thereby, they filed the instant appeal. 2. During the pendency of the appeal, Dalganjan and Ganesh died and as such the appeal, so far as they are concerned, has abated. For all intends and purposes, therefore, in this appeal, we are only concerned with the question whether the order of conviction and sentence recorded against Kamta and Saheb can be sustained or not. 3. The case for the prosecution is that the accused Dalganjan had taken grains on loan from Suraj Pal Singh (P.W. 1) undertaking to return it in the month of Chaitra preceding the date of the incident. He, however, returned only a part of the grains taken on loan. To press their claim in respect of the balance quantity, Suraj Pal Singh and his brother Babu Singh (deceased) went to the house of Dalganjan at or about 9.00 p.m. on 9.6.76 and demanded the same. Dalganjan refused to comply with the demand and gave out that Suraj Pal Singh was at liberty to do whatever he liked. Then Dalganjan asked his son Kamta to kill Babu Singh and Suraj Pal Singh and immediately thereupon, Kamta fired a shot aiming Babu Singh. Saheb and Ganesh then assaulted Suraj Pal Singh also with an Iron Sang and a Lathi respectively and then Kamta again fired at Suraj Pal Singh. Owing to firing. Babu Singh fell down dead, but Suraj Pal Singh, escaped with only some injuries on his person. 4. Saheb and Ganesh then assaulted Suraj Pal Singh also with an Iron Sang and a Lathi respectively and then Kamta again fired at Suraj Pal Singh. Owing to firing. Babu Singh fell down dead, but Suraj Pal Singh, escaped with only some injuries on his person. 4. Suraj Pal Singh then went to the house of Lallu Singh (P.W. 4), a co-villager, and got a report of the incident written by him. With the report he went to the police Station and on the basis thereof, a case was registered. Station Officer Ram Magon Singh (P.W. 9) took up investigation of the case and went to the house of the appellant Dalganjan. In front of his house, he found the dead body of Babu Singh lying and he held inquest upon the same. He then sent the dead body for post mortem examination. He seized some blood stained and simple earth from the spot where the dead body was lying and also recovered two pieces of wad and an empty cartridge. On completion of investigation, he submitted charge-sheet and in due course, the case was committed to the Court of Session. 5. The accused persons pleaded not guilty to the charges levelled against them and contended, inter alia, that Suraj Pal Singh and his brother Babu Singh had a number of enemies, who might have killed Babu Singh, and due to paucity of light, the miscreants could not be identified. Their further case was that they had been falsely implicated. 6. Though as many as nine witnesses were examined on behalf of the prosecution, its case primarily rests upon the evidence of Suraj Pal Singh (P.W.1) and Chunubad (P.W. 2) who also claimed to have seen the incident. 7. Suraj Pal Singh testified about the prosecution case as detailed earlier. As to the source of light by which he could identify the miscreants, he stated that there was a lantern burning near the door of the house of Dalganjan and that the night was a moon lit one. He further said that those people who were there had torches in their hands. This witness was cross-examined at length to establish that he had a number of enemies. It was further elicited from him that the accused Kamta fired at Babu Singh while standing on a platform which was about 1 feet high. 8. He further said that those people who were there had torches in their hands. This witness was cross-examined at length to establish that he had a number of enemies. It was further elicited from him that the accused Kamta fired at Babu Singh while standing on a platform which was about 1 feet high. 8. The other eye-witness Chunubad stated that he lived along with his brother Rameshwar in a house which is in front of the house of Dalganjan and he had a shop which was at a distance of 14-15 paces from their residential house. He testified that on the fateful night at or about 9.00 p.m. while he had gone to his shop to have a Bidi and was returning to his house, he saw Suraj Pal Singh (P.W. 1) and Babu Singh (deceased) coming to the house of Dalganjan and asking for the return of the loaned grains. Dalganjan refused to return the grains and said that they could do whatever they liked. Then Dalganjan exhorted his son Kamta to kill them. Immediately thereafter Kamta fired from a gun aiming Babu Singh and he fell down dead. Suraj Pal Singh then starting running from that place but Saheb Singh assaulted him with a Sang, Ganesh then assaulted him with a Lathi and when Suraj Pal Singh again tried to flee away from the place, Kamta fired at him again. As to the source of light, he stated that there was a lantern burning near the door of the house of Dalganjan. In cross-examination, this witness also stated that Kamta fired aiming Babu Singh while standing on a platform. It was suggested to him that he had not seen the incident, but he denied the suggestion. 9. We have carefully gone through the evidence of P.W.s 1 and 2 and we do not find any material discrepancy or improbability in their evidence so as to discard the same. In fact, there is nothing on record to show why Chunubad who, being a next door neighbour of Dalganjan was the mast probable witness, would depose falsely. 10. The ocular version of the incident given by these two witnesses is again corroborated by other materials on record. The fiat corroboration of their evidence is through the evidence of Dr. V.K. Tandon (P.W. 3), a surgeon attached to the District Hospital, Hamirpur. 10. The ocular version of the incident given by these two witnesses is again corroborated by other materials on record. The fiat corroboration of their evidence is through the evidence of Dr. V.K. Tandon (P.W. 3), a surgeon attached to the District Hospital, Hamirpur. He testified that on 10.6.76 at or about 1.30 a.m., he examined Suraj Pal Singh and found the following injuries on his person: 1. "Grazing abrasion 3.5 cm x 1 cm on Rt. back just inner to and below lower angle of Rt. scapula. 2. Grazing abrasion 3.5 cm x 1 cm on Rt. back 4 cm below injury No. (1) and slightly inner to it. 3. Grazing abrasion 1.5 cm x 1 cm on the Rt. back 1 cm away from middle and 19 cm below injury No. (1) on the Rt. lumber region of back. 4. Transverse contusion red in colour 13 cm x 1.5 cm on the It. back on the lower part of Lt. scapular region. 5. Punctured wound 1.5 cm x 0.3 cm x 2.5 cm on Lt. buttock in the middle part eleptical in shape with margins lacerated. Direction Lt to Rt. and below upwards. Directions of injuries Nos. 1, 2 and 3 is slightly below upwards. Duration about day." He opined that injuries No. 1, 2 and 3 could be caused by a fire-arm, No. 4 by a blunt weapon and No. 5 by a pointed ragged weapon. In cross-examination, he stated that injuries Nos. 1, 2 and 3 could be caused by one gun shot. 11. From Dr. V.N. Mehrotra (P.W. 6), a physician attached to Hamirpur District Hospital, we get that held the post mortem examination on the dead body of Babu Singh on 10.6.76 and found nine gun shot wounds of entry in an area of 12 cm x 13 cm over left side of the back below the Scapular bone. He also found some perforations in the lungs and sternum. In his opinion, death was due to shock and haemorrhage as a result of gun shot injuries. From him, we further get that he recovered nine pellets from inside the body of Babu Singh. He also found some perforations in the lungs and sternum. In his opinion, death was due to shock and haemorrhage as a result of gun shot injuries. From him, we further get that he recovered nine pellets from inside the body of Babu Singh. The evidence of these two doctors, therefore, fits in with the prosecution case that Bahu Singh was shot dead by a fire-arm and Suraj Pal Singh was shot at with a fire-arm and was also assaulted with a sharp pointed weapon as also a Lathi. 12. The finding of dead body of Babu Singh near the house and blood stained earth, which was found to be human blood by the Chemical Examiner, from near the house of Dalganjan is another circumstance, which corroborates the evidence of the eye-witnesses. 13. So far as the defence of the accused persons is concerned, we find that there is no material on record in support thereof. It also does not stand to reason that, if any other enemy of Suraj Pal Singh or Babu Singh had committed the offence in question, why instead of implicating them, the witnesses would falsely implicate Dalganjan and his sons. While on this point, we may also point out that within two hours of the incident, Suraj Pal Singh went to the Police Station, which was at a distance of nine miles, and lodged the first information report, wherein the substratum of the prosecution case finds place. This is another circumstance, which not only corroborate the prosecution case, but makes tie defence case unworthy of credit. The other contention of the accused persons that there was no sufficient light again stands negatived by the un-controverted evidence of P.Ws. 1 and 2 that there was a lantern burning at the door of the house of Dalganjan. 14. Having carefully gone through the evidence on record, we have no hesitation in concluding that the prosecution case that Kamta fired at Babu Singh with a gun, as a result of which he died, and that Kamta also fired at Suraj Pal Sinqh, as a result of which he sustained injuries stands fully established. The conviction of the appellant Kamta under Sections 302 and 307 of the Indian Penal Code and the sentences awarded upon him for such conviction must, therefore, be upheld. The sentences would, however, run concurrently. The conviction of the appellant Kamta under Sections 302 and 307 of the Indian Penal Code and the sentences awarded upon him for such conviction must, therefore, be upheld. The sentences would, however, run concurrently. Kamta who is on bail shall now surrender to his bail bonds to serve out the sentence. 15. So far as the appellant Saheb is concerned, we are unable to agree with the finding of the learned trial Judge that he is guilty under Section 302/34 of the Indian. Penal Code for the murder of 13ahu Singh. Not an iota of evidence was led by the prosecution to show that he shared common intention to kill Babu Singh. In fact, the evidence shows that Dalganjan exhorted his son Kamta to kill Bahu Singh and Suraj Pal Singh. The evidence on record, however, fully establishes that Saheb had assaulted Suraj Pal Singh with an iron Sang, but it cannot be said, considering the manner in which the assault was inflicted by him, that he attempted to kill Suraj Pal Singh. In such circumstances, we are of the opinion that Saheb's conviction under Section 307 of the Indian penal Code should be altered to one under Section 324 of the Indian Penal Code. We, therefore, set aside the conviction and sentence imposed on him under Section 302 of the Indian Penal Code and acquit him of the said charge. We also alter his conviction under Section 307 of the Indian I Penal Code to one under Selection 324 of the Indian Penal Code for causing hurt to Suraj Pal Singh with a sharp pointed weapon. Considering the fact that since the offence was committed by him, more then 15 years have elapsed, we are not inclined to sent him behind the bars again, more particularly when he had undergone more than three months' detention during the investigation stage. We, therefore, sentence him for his conviction under Section 324 of the Indian Penal Code to the period already undergone. He is discharged from his bail bonds. 16. The appeal is thus partly allowed.