G. D. DUBE, J. ( 1 ) THIS appeal has been preferred against the judgment and order of Session Judge Shahjahanpur convicting and sentencing each of the appellants to suffer imprisonment for life under section 302 read with section 34 of I. P. C. ( 2 ) THE case of the prosecution was that in respect of murder of Bhagwan Singh a case was proceeding against Badshah Singh Hakim Singh, Babu Singh and the reporter Ram Bahadur Singh. Hakim Singh was the main Karta of the family and was doing Pairvi in the case. On account of this activity of Hakim Singh family members of Bhagwan Singh were on inimical terms. It has been alleged that at about 12 noon on 16. 1. 1977 Ram Bahadur Singh, Hakim Singh and Ved Pal Singh started for their home after peeling sugarcane from a field situated towards south of their village Charkhaula, P. S. Khudaganj District Shahjahanpur. When they reached near gram field of Indrapal Singh accused Rajendra Singh armed with a double barrel gun Neksu Singh armed with a single barrel gun and Dhirpal Singh armed with a pistol came out from the grove of Harinath Singh. Rajendra Singh opened fire towards Hakim Singh. Hakim singh fell down after receiving gun shot injury. The other witnesses raised alarm, Dalganjan Singh and Kanchan Singh arrived at the spot and challenged the assailants. Meanwhile Rajendra Singh, Neksu Singh and Dhir Pal Singh again opened fire from their firearms towards Hakim singh. After killing Hakim Singh the three assailants ran away. ( 3 ) RAM Bahadur Singh scribed the report Ext. ka 3 and went to the police station. He lodged the report at 1. 30 p. m. same day. ( 4 ) THE investigation was taken up by Santosh Kumar P. W. 7. He interrogated Ram Bahadur Singh at the police station. He proceeded to the place of occurrence and conducted the inquest proceeding of the dead body and sent it in a sealed cover for mortuary through Chaukidar Dinesh P. W. 3 and a constable. He recovered two empty cartridges, tickli and a Lathi, Hasiya and also two bundles of sugar cane leaves. After completing the investigation the investigating officer submitted chargesheet against the accused-appellants. ( 5 ) DOCTOR Sudhir Singh had conducted the post-mortem at 4 p. m. on 17. 1. 1977. He recovered two empty cartridges, tickli and a Lathi, Hasiya and also two bundles of sugar cane leaves. After completing the investigation the investigating officer submitted chargesheet against the accused-appellants. ( 5 ) DOCTOR Sudhir Singh had conducted the post-mortem at 4 p. m. on 17. 1. 1977. He had found seven gun shot wounds on the person of the deceased. The details of these injures are being mentioned at appropriate place in this judgment quoted below. ( 6 ) THE prosecution has examined 7 witnesses. Out of which P. W. 2ram Bahadur Singh, P. W. 5 Kanchan Singh and P. W. 6 Dalganjan Singh are the eye witnesses. P. W. 4 Suresh Pal Singh has registered the case in the police station. The role of other witnesses has already been indicated above. ( 7 ) THE accused had pleaded not guilty to the charge. They alleged that they had been implicated on account of enmity. They had not produced any witness in defence. The learned Session Judge believed the prosecution story and convicted and sentenced the accused-appellant as stated above. Aggrieved by this order and judgment the appellants have preferred this appeal. ( 8 ) ONLY one point has been argued. It was urged that Dalganjan Singh (P. W. 6) has been disbelieved by the learned Sessions Judge. If this Court is of the opinion that the observations of the trial court regarding Dalganjan Singh are correct, then the same reasoning will follow for Ram Bahadur Singh (P. W. 2) and Kanchan Singh (P. W. 5 ). The argument of the learned counsel for the appellants was mainly confined to the manner of occurrence. It was urged that in the manner, as alleged by the prosecution witnesses, the murder was not probable. This will make the whole version of the eye witnesses unworthy of acceptance. Thus the whole prosecution version becomes doubtful. ( 9 ) IN order to appreciate the contention of learned counsel for the appellants, it is necessary to quote following injuries, They were:i. Lacerated oval gun-shot wound of entry, 5 cms. x 4. 5 cms. x thoracic cavity deep on the lower part of the neck in between the clavicles, directed downwards and laterly on right side, Margins were inverted. Sternum and inner ends of clavicles were fractured. ii. Gun-shot wound of entry, 3 cms. x 2. 5 cms. x 4. 5 cms. x thoracic cavity deep on the lower part of the neck in between the clavicles, directed downwards and laterly on right side, Margins were inverted. Sternum and inner ends of clavicles were fractured. ii. Gun-shot wound of entry, 3 cms. x 2. 5 cms. x bone deep, lacerated, oval, on left side of neck in middle. There was fracture of cervical vertebras from 3rd to 6th, Wadding pieces were recovered from the wound. iii. Gun-shot wound of entry, eval, lacerated, 8 cms. x 6 cms. x cavity deep on right side inner region just on the right superior anterior liac spine with loops of intestine protruding. iv. Multiple gun-shot wounds of entry scattered in an area of 10 cms. x 10 cms. about four in number, on left side gluteal region, size varying from 0. 3 cm. x 0. 3 cm. x muscle deep to 0. 2 cm. x 0. 2 cm. x muscle deep and 1 to 2 cms, apart from each other. Margins were inverted. Ten small metallic pellets were recovered. v. Two gun-shot wounds of exit, each 1 cm x 0. 75 cm. on anterior mediel part of right thigh in the middle and two cms. apart from each other margins were everted. vi. Three gun-shot wounds of exit on medial part of left thigh, arranged vertically, each 1 cm. x 0. 75 cm. and 7 cms. apart from each other. vii. Gun-shot wound giving the appearance of lacerated wound, resulting the removal of the thumb from its middle. The skin flap was hanging which was smoky. Terminal phalynx of the thumb was absent. ( 10 ) THE prosecution witnesses have stated that after murder the head of Hakim Singh (deceased) was lying towards east and the feet towards west. It was urged that in this situation the injures on the person of Hakim Singh were not possible. It has also been argued that Ram Bahadur Singh (P. W. 2) had stated that the field, in which the food-grain was sown, was taken on Batai. There is no evidence of this agreement between the owner of the land and Ram Bahadur Singh. ( 11 ) AS regards the last contention, there was no necessity of any evidence about agreement. The dead-body of Hakim Singh was found in the field of Indrapal Singh. The blood was also found from that place. There is no evidence of this agreement between the owner of the land and Ram Bahadur Singh. ( 11 ) AS regards the last contention, there was no necessity of any evidence about agreement. The dead-body of Hakim Singh was found in the field of Indrapal Singh. The blood was also found from that place. The sickle and the lathi of the deceased along with bundles of sugar cane leaves were also found. The Investigating officer had noticed the cutting and peeling of sugarcane in the alleged field. In view of these circumstances, it is obvious that the deceased and his family members had gone to the field in question for cutting and pealing the leaves of sugar-cane. ( 12 ) THE trial court had observed regarding Dalganjan Singh that this witness was seventy years old. This witness was standing in the witness box before the trial court in a straight posture and the age had not brought any effect also. The learned Sessions Judge also observed that the witness belongs to village Charkhaula and he could have been near the place of occurrence at the time of murderous assault on Hakin Singh. After making all these observations, the learned Judge observed. What raises a doubt in my mind about his presence on the scene of occurrence is his testimony (see paragraph 5 of the record of his deposition) that when the first shot was fired at Hakim Singh, the accused were in the north-west of him and when the remaining shots were fired, the accused men were facing west and Hakim Singhs head was also to the east. The medical evidence shows that external injuries Nos. (1), (ii) and (iii) which were all gunshot wounds of entry, were so located that the person who fired the shot causing those injures must have been on the east and or in the south of Hakim Singh when Hakim Singh had been fired at after he fell down with his head towards east. This part of Dalganjan Singhs evidence is not at all in line with the probabilities suggested by the medical evidence in this case and it is why I doubt that Dalganjan Singh might not have been there to witness the assault on his nephew, Hakim Singh. ( 13 ) THE above observations of the trial court were not based on proper appreciation. ( 13 ) THE above observations of the trial court were not based on proper appreciation. All the witnesses have stated that after the first fire by Rajendra Singh appellant the deceased Hakim Singh fell down. He was tossing and writhing with pain on the ground when all the three had again opened fire on him. The observations of the learned sessions Judge could be correct only if a person was lying on the ground as a log of wood. All the prosecution witnesses have stated that the assailants had emerged from the grove of Harnam Singh. This grove was situated towards west of the place of occurrence. According to the prosecution witnesses, the assailants were towards north-west of the deceased. Hence their faces would obviously be towards east as the deceased along with his companions was walking on the foot-path. Hence the injuries could be caused in that position. Since Hakim Singh was tossing with pain after receiving the first shot, it is not at all presumable as to what would be the position of his body when the other three shots had struck his body. The nature of injures quoted above clearly indicate that they could have been cased by four gun shot fires. ( 14 ) THE trial court has believed P. W. 2 Ram Bahadur Singh and P. W. 5 Kanchan Singh. The trial court was quite impressed by Ram Bahadur Singh. The defence had asked the question to these witnesses to demonstrate as to how and in what posture the accused had fired towards Hakim Singh. The trial court had made a note in reply to this question. The witnesses had demonstrated in the court the manner in which the shots were fired at the deceased. On this ground, the trial court rightly held that had this witness been not present at the spot, he would not have been able to demonstrate the posture of assailants at the time of actual fire. ( 15 ) LEARNED counsel for the appellants urged that Kanchan Singh was a chance witness. He had given a false explanation for his presence at the spot. This contention of learned counsel for the appellants is not correct. Kanchan Singh had stated that he had come to village Charkhula to see his allying relative Ram Pal Singh. ( 15 ) LEARNED counsel for the appellants urged that Kanchan Singh was a chance witness. He had given a false explanation for his presence at the spot. This contention of learned counsel for the appellants is not correct. Kanchan Singh had stated that he had come to village Charkhula to see his allying relative Ram Pal Singh. In the First Information Report also, it is written that Kanchan Singh, who was a relative of Rampal Singh resident of village Charkhula, had also arrived. This narration in the First Information Report, which was quite prompt, itself indicates that Kanchan Singh was not an unconcerned person. He had several occasions to come to village Charkhaula to see his ailing relative Rampal Singh. His statement cannot be disbelieved simply because he was not able to tell the name of the doctor or the Hakeem who was treating Rampal. Kanchan Singh had withstood his cross-examination. He had supported the prosecution story. ( 16 ) WE have noticed above that the trial court was, on the one hand, observing that the presence of Dalganjan Singh was probable, whereas in the following sentences the learned Judge was disbelieving the witness on the ground that in the manner of assault, as stated by him, the injuries on the deceased were not probable. We have seen above that this finding is not correct. Dalganjan Singh was the uncle of Hakim Singh. Ram Bahadur Singh and Dalganjan Singh along with Hakim Singh would have certainly gone to the field of sugar-cane when the cutting operations were going on. ( 17 ) THE prosecution version is corroborated by the circumstances of finding of the sickle, lathi and two bundles of sugar-cane. ( 18 ) IT was argued that it was not probable that Hakim Singh would be taking both the bundles of Sugar cane leaves. Hakim Singh was only thirty years old (according to age, estimation of Dr. Sudhir Singh P. W. 1) on the date of his death. Ram Bahadur Singh was about thirty three years old. Dalganjan Singh was the uncle. Hence ordinarily the youngest person in the party will carry the bundles. It is not clear from the evidence that the two bundles were quite big enough and it would have been though proper by the party that two persons should carry it. Ram Bahadur Singh was about thirty three years old. Dalganjan Singh was the uncle. Hence ordinarily the youngest person in the party will carry the bundles. It is not clear from the evidence that the two bundles were quite big enough and it would have been though proper by the party that two persons should carry it. In the circumstancesof the case, we do not find any unnaturalty in the conduct of Hakim Singh in carrying both bundles of sugar-cane leaves. ( 19 ) FOR the reasons mentioned above, we find that the trial court had erred in disbelieving the evidence of Dalganjan Singh. The evidence of the three eye witnesses clearly established beyond doubt that the appellants had actually committed the murder of Hakim Singh. They were rightly convicted and held guilty under section 302 read with section 341. P. C. The second firing by all the three appellants clearly indicates their common intention to kill Hakim Singh. Thus all of them were guilty under section 302 read with section 34 I. P. C. ( 20 ) THE sentence awarded to the appellants was also adequate. ( 21 ) A report-has been received that appellants Dhirpal Singh and Rajendra Singh have died and their appeal has abated. ( 22 ) THE appeal of appellant Neksu alias Nekpal is dismissed and the judgment and order of the court below are maintained. He shall surrender for serving out the sentence. Appeal dismissed. .