JUDGMENT Mr. G.D. Dube, J. - Hoti, Voran, Mihi Lal and Ishwari were prosecuted and tried for the offence punishable under Section 302, I.P.C. Hoti was charged under Section 302, I.P.C. simpliciter, Mihi Lal and Soran were charged with the aid of Section 34, I.P.C. and Ishwari was charged under Section 302 with the aid of Section 109 I.P.C. However the trial against Mihi Lal was separated. The second Additional Sessions, Judge, Etah, convicted and sentenced appellants for the offence mentioned above and sentenced each of them to undergo imprisonment for life. Aggrieved by this order, the three convicted persons filed this appeal. During the pendency of this appeal, Soran has died. Hence his appeal abates. 2. Balbir Singh (P.W.1) had lodged a First Information Report at 10.30 a.m. on 13.10.1976 at Police Station Kotwali, Etah, district Etah, He had alleged in this report that he had started from the house of Manohar Singh, a partner in business, along with Roop Kishore (P.W.4). Bharat Singh (P.W.5) and Ram Bahrose (P.W.3) on foot. They were proceeding towards Etah. When they reached near the culvert in village Saithri at about 9.30 a.m., he saw Manohar Singh going on his motor-cycle. Ishwari appellant was sitting on the pillion with a gun in his hand and a bolt of cartridges hanging from his shoulder. At that very time, Mihi lal, Soran and Hoti came in front of the motor cycle of Manohar Singh, Soran opened fire from his country made pistol towards Manohar Singh. He missed the aim. Manohar Singh stopped his motor cycle and demanded his gun from Ishwari. Ishwari instead of handing over the gun to Manohar Singh handed over the cartridges and the gun to Mihi Lai. Meanwhile, Hoti fired again from his country made pistol and the shot his Manohar Singh. Manohar Singh ran towards Mihi Lal to get his gun but Ishwari caught him. By that time, Balbir Singh and his other companions arrived at the spot. Hence Ishwari also ran away behind the other assailants. Ishwari was however, arrested at the spot. The other three assailants ran away towards village Bhadon. Ishwari was being to the place of occurrence by interest Manohar Singh stated to Ishwari, "Ishwari tonne aajdheka diye had Mihi Lal, Hoti, Soran se skeem bans kar mere goli marwai hau Tere bhala nahi hoge." After saying these words. Manohar Singh died. Ishwari was however, arrested at the spot. The other three assailants ran away towards village Bhadon. Ishwari was being to the place of occurrence by interest Manohar Singh stated to Ishwari, "Ishwari tonne aajdheka diye had Mihi Lal, Hoti, Soran se skeem bans kar mere goli marwai hau Tere bhala nahi hoge." After saying these words. Manohar Singh died. It was alleged that Manohar Singh used to lend money. Some money was due against Hoti and Soran. They were not paying this money. 3. After the occurrence, Ishwari was left in the custody of other witnesses and Balbir Singh went to the police station and lodged an oral report. When this report was lodged. J.P. Gautam was present at the police station. He deputed S.K. Dixit for conducting the inquest proceedings. S.K. Dixit conducted the inquest and sent to dead body for post mortem in a sealed cover. This Investigating Officer has collected plain and bold stained earth and empty on cartridge case and the motor cycle of the deceased. Ishwari, who was aspected at the spot, was sent to District Hospital, Etah. He was examined at 5.50 p.m. on 13.10.1976. The following injuries were found by Dr. R.S. Gupta (P.W.6) on the person of Ishwari: 1. Lacerated wound 3 cm x 5 cm x scalp deep on right side head 5 cm x above right ear in ear to ear direction. Margins swollen red Lymph caused. 2. Abrasion 2 cm x 1 cm x on back at right shoulder. 3. Contusion 5 cm x 2 cm back at left elbow (red) 4. The doctor opined that the injuries were about 1/3 day old and caused by some object. 5. After completing other investigation, charge sheet was submitted against the above mentioned four accused. The post-mortem of the dead body of Manohar Singh was conducted at 5.00 p. m. 3.10.1976 by Dr. R.P. Yadav (P.W.2). The doctor found one fire-arm wound of entry over left anginal region 5 cm from left scrotum and 7 cm. from left anterior superior iliac spine. One abrasion was also found on left knee joint. The doctor recovered that he shot sticking in injury No. 1. It lacerated skin, suboutaneious tissues, inguinal vessels, femera lartery and vein, muscle and finally struck and fractured the left iliac bene and hip joint, Femoral vessels were badly lacerated and clotted blood present. The stomach contained undigested food. One abrasion was also found on left knee joint. The doctor recovered that he shot sticking in injury No. 1. It lacerated skin, suboutaneious tissues, inguinal vessels, femera lartery and vein, muscle and finally struck and fractured the left iliac bene and hip joint, Femoral vessels were badly lacerated and clotted blood present. The stomach contained undigested food. There was pasty food material in the small intestine, large intestine had faecal matter. 6. The prosecution had examined Balbir Singh (P.W.1) Ram Bharose (P.W.3), Roop Kishore (P.W.4). Bharat Singh (P.W.5) as eye-witnesses. P.W.8 Om Prakash is Head Constable who had registered the case. The names of other formal witnesses have already been indicated above. The accused had pleaded not guilty to the charges. The learned Sessions Judge had believed the prosecution story and convicted and sentenced the appellants as stated above. It has been argued by learned Counsel for the appellants that Ram Bharose (P.W.3,) Roop Kishore (P.W.4) and Bharat Singh (P.W.5) had not supported the prosecution story. P. W.3 and 5 had been declared hostile and cross-examined by the prosecution. In this way, there was a solitary statement of Balbir Singh. It was urged that this Balbir Singh was a partner in the business conducted by Manohar Singh. It is, therefore, probable that the himself might have arranged the killing of Manohar Singh so that he may be able to usurp the business money as the children of Manohar Singh were small and there was a helpless widow left after the Murder. It was also urged that it was possible that Ishwari being a servant of Manohar Singh had tried to save him and in that process had received injuries. It was urged that the statement of Balbir Singh cannot be termed as the statement of a wholly reliable witness. Hence the solitary statement of Balbir Singh cannot entail the conviction of the appellants. 7. We have examined the statement of Balbir Singh quite carefully. The doctor who conducted the post-mortem of the dead body of Manohar Singh, had opined that the death had been caused about 1/3 day before. Thus the time of death of Manohar Singh appears to be 9.30 a.m. as alleged by the prosecution. It is not the case of the defence that the deceased was not murdered at 9.30 a.m. only this much was elicited in cross-examination of Dr. Thus the time of death of Manohar Singh appears to be 9.30 a.m. as alleged by the prosecution. It is not the case of the defence that the deceased was not murdered at 9.30 a.m. only this much was elicited in cross-examination of Dr. R.P. Yadav that there could be a difference of two hours on either side in the timing of death of Manohar Singh. 8. Balbir Singh (P.W.1) has stated that Mahendra Singh had died at 9.30 a.m. Even the hostile witnesses, namely, Ram Bharosc (P.W.3) and Roop Kishore (P.W.4) stated that they had seen Manohar Singh dead at 9.30a.m. It was not suggested to Balbir Singh on elicited in cross-examination that Manohar Singh had not died at 9.30 a.m. but had died earlier. 9. It is true that while giving statement under Section 313, Cr. P.C. an accused is not bound to reply any question. He may not even speak a word and keep mum over the matter. A specific question had been asked to Ishwari that he had been arrested at the spot and during arrest he had received the injuries. This accused had denied it. He had not explained his injuries. He had not even stated a word that he had tried to defend his master Manohar Singh at the time of fatal assault on him. 10. Dr. R.S. Gupta had also opined that the injuries of Ishwari were about 1/3 days old. Thus the injuries of Ishwari also turn out to have been caused at 9.30 a.m. 11. On examination of the materials on record, we find that the occurrence had taken place at 9.30 a.m on 13.10.1976. This fact is corroborated by medical as well as oral evidence. The evidence has to be, therefore, examined and scrutinised on the above established facts. In application (Ex. Ka-4) had been filed by Manohar Singh before the District Officer, Etah on 7.4.1976 against Hoti, Mihi Lal and seven others that there was along standing enmity between him and two opposite parties mentioned in the application and he had an apprehension of his life from there opposite parties. 12. Balbir Singh had filed some papers of account before the lower Court. These papers corroborate the version of Balbir Singh that he and Manohar Singh were partners of an unregistered firm. 12. Balbir Singh had filed some papers of account before the lower Court. These papers corroborate the version of Balbir Singh that he and Manohar Singh were partners of an unregistered firm. There is a clear mention in the First Information Report that just before death, Manohar Singh had cursed Ishwari accused that as he had deceived him be will not be happy in future. There are such faits which will not occur in the First Information Report if a case has been checked on deliberation and consultation. The above words are the natural utterances of a dying person when he finds that a person, on whom he had explicit faith, had received him at a crucial moment. 13. Except for a suggestion at the Bar that probably Balbir Singh had got Manohar Singh murdered, there is no other material on record to substantiate such contention. It had been argued that the witness had not stated in his report that he had stayed at Manohar Singh in the night and there was some accounting between him and the deceased. This submission is without any force. It was not such a fact which was necessary to be stated either in the First Information Report or the statement under Section 161, Cr.P.C. 14. It has been argued that Manohar Singh and Balbir Singh (P.W.1) would have started together. Manohar Singh could have taken Balbir Singh on his motor cycle. This contention is not correct. One man was already sitting on the pillion of the motor cycle of Manohar Singh. Hence Balbir Singh would have been forced to go on feet. It has not been disputed that Balbir Singh and Manohar Singh were partners in a firm. Hence going of Balbir Singh in the evening to the house of Manohar Singh for accounting was not at all improbable. 15. Balbir Singh has stated in his examination in chief that the other eye-witnesses were not ready to support the prosecution story. His apprehension had come true for Ram Bharose (P.W.3) and Bharat Singh (P.W.5), who had not supported the prosecution story, were declared hostile, Roop Kishore (P.W.4) had, however, supported the prosecution story to this extent that when he reached the spot, he found three persons running away from the place of occurrence. He had supported the prosecution story that Ishwari was arrested at the spot. He had supported the prosecution story that Ishwari was arrested at the spot. He had also stated that, on questioning, Ishwari had disclosed the names of the assailants. He has stated in his examination in chief that three persons had Dhatas (face cover) on their faces. Whether these accused had put their Dhatas while running is not clear from the evidence. From this statement, it cannot be believed that the assailants were not recognised by Balbir Singh. This Roop Kishore also supports the prosecution story that just before death Manohar Singh had cursed Ishwari by using the words quoted above. He has also stated that when he saw Ishwari going on the motor cycle, he had a gun in his hand and a belt of cartridges on his shoulder. These two things were missing when the witnesses arrested him at the spot. Nothing material was elicited in the cross-examination of this Roop Kishore (P.W.4) that whatever this witness had stated is not worth reliance. 16. Thus we find that Balbir Singh is not a solitary witness. All his prosecution story except witnessing of the actual assault by the can accused is corroborated by Roop Kishore. The medical evidence supports the prosecution story. The injuries on the person of Ishwari support the prosecution version that he was arrested on the spot. He explanation is coming forward from the side of the accused for those injuries. 17. For these reasons mentioned above, we find that the learned Sessions Judge has rightly come to the conclusion that appellant Hoti had committed the murder of Manohar Singh by causing gun shot injures on the person of the deceased which were sufficient in ordinary course of nature to cause death and were also intended to cause death. Ishwari has been rightly convicted under Section 302 with the aid of Section 109, I.P.C. because he has abetted the offence of murder by not handing over the gun and cartridges to Manohar Singh and also preventing the deceased from snatching the gun and cartridge from Milli Lal. 18. In the result, the appeal fails and is dismissed. The appellants shall surrender to serve out their sentence.