S. K. VERMA, J, J. ( 1 ) THIS Government Appeal against the acquittal of respondents Gorey Lal and Surendra Singh arises out of Sessions Trial No. 138 - A of 1978, decided by the learned Sessions Judge, Banda by judgment dated 12/3/1979. ( 2 ) POORAN (deceased) was the Pradhan of village Mawai. On 14/12/1977 he had accompanied Jhunna to Police Station Kotwali-Banda for lodging a report against the respondents under section 395, I. P. C. with allegations that the respondents had misbehaved with daughter-in-law of Jhunna and had snatched away her Sutiva. Then on 16/12/1977 at about 7. OC A. M. when Pooran was warming himself by the side of Kanda (fireplace) in front of his main door and P. W. 1, Ram Asrey son of Poor an, P. W. 2 Kumari Chunbadi daughter of Pooran and P. W. 3 Kalloo a neighbour and, Smt. Chunki wife of Pooran (not examined) and one Jagmohan, neighbour were also warming themselves around the tire place, the respondents are said to have come armed with country made pistol (Gorey Lal) and Barachha (Surendra Singh ). It is alleged that Surendra Singh told Pooran that he had not done the proper thing in lodging a report against respondents for robbery. Pooran is said to have replied that the conduct of the respondents was also not proper in committing such a crime. Respondent Gorey Lal is said to have stated that though Pooran was a Chamar by caste he was trying to come with Thakuras (there is evidence that both the respondents are Thakurs ). Respondent Surendra Singh is then, alleged to have exhorted Gorey Lal by saying these words (Hindi Sentence ). On this, the respondent Goreylal is said to have taken out his pistol and to have fired on the chest of the victim who was hit and fell down and died on the spot. The respondents are alleged to have threatened the witnesses and then to have made good their escape. ( 3 ) THE First Information Report of this incident was lodged by Ram Asrey son of the deceased at 8. 10 A. M. on 16/12/1977 after covering a distance of four miles to the police station Kotwali Banda from his village Mawai. The respondents are alleged to have threatened the witnesses and then to have made good their escape. ( 3 ) THE First Information Report of this incident was lodged by Ram Asrey son of the deceased at 8. 10 A. M. on 16/12/1977 after covering a distance of four miles to the police station Kotwali Banda from his village Mawai. After the registration of the crime, Inspector Subedar Singh who was present at the Police Station at the time of lodging of the First Information Report started investigation and reached the place of occurrence at 9. 10 A. M. He recorded the statement of Ram Asrey then and there and prepared inquest report. Thereafter he recorded the statement of Smt. Chunki and Kumari Chunbadi (P. W. 2) and Kalloo (P. W. 3) and prepared a site-plan (Ext. Ka-12) after local inspection of the place of occurrence. He found blood near the dead body and also one Tikli and an empty cartridge near the place of occurrence. Meanwhile Dr. L. A. Zama (P. W. 6) conducted the post mortem examination of the dead body on 17/12/1977 at 7. 45 A. M. and found 11 gun shot wounds of entry in an area of 16 cm x 13 cm on the upper part of the left side chest and another gun shot wound of entrance on the left side of chest. He found the right lung, left lung, pericardium, heart and liver perforated. Small and large intestines contained faedal matter. Urinary bladdar was empty. In the opinion of the doctor the death was caused due to shock and haemorrahage as a result of gun shot injuries. The chemical examiner and serologist found human blood on the Kurta Sweater Baniyain and Sofee, and sample of blood stained earth. The Investigating Officer after completing the investigation submitted a charge-sheet against the respondents. They were charged under sections 302/34, I. P. C. They pleaded not guilty and claimed false implication due to enmity. The prosecution examined three eye witnesses, namely Ram Asrey (P. W. 1) Kumari Chunbadi (P. W. 2) and Gorey Lal (P. W. 3 ). The Court examined ballistic expert Sri Budul Rai as C. W. 1. The respondents did not examine any witness. The trial Court after considering the evidence on record acquitted the respondents as aforesaid. The prosecution examined three eye witnesses, namely Ram Asrey (P. W. 1) Kumari Chunbadi (P. W. 2) and Gorey Lal (P. W. 3 ). The Court examined ballistic expert Sri Budul Rai as C. W. 1. The respondents did not examine any witness. The trial Court after considering the evidence on record acquitted the respondents as aforesaid. ( 4 ) WE have gone through the evidence on record and have heard the learned counsel for the State as well as the learned counsel for the respondents. The learned counsel for the State has vehemently argued that there was no convincing reason for rejecting the testimony of eye-witnesses and State appeal, therefore, deserves to be allowed. On the other hand the learned counsel for the respondents has argued that the view taken by the trial Judge cannot be termed as perverse or reasonable and, therefore, the findings of the trial court should not be disturbed. A perusal of the judgment of the trial court would indicate that the prosecution story has been disbelieved because the trial Judge found that there was no urine in the bladder of the deceased and that there was improvement in the deposition of the witnesses in so far as they stated that Goreylal stepped back two steps before firing the short. Moreover although P. W. 1 Ram Asrey picked up his father within four minutes of the occurrence, no blood was found on his clothes. Ram Asrey being an employee of the Civil Court, Banda, it was improbable for him to idle away his time infront of the fire place at 7 A. M. Again there was absence of independent neighbours. It was also found that there was no motive in the minds of the assailants for commission of this crime. It was further found that Kalloo was interested inasmuch as he received three bighas land in 1974 from the village Pradhan. Kumari Chunbadi was dis-believed by the trial court because she did not address Kalloo as her uncle. ( 5 ) AFTER careful consideration of the evidence on record we are of the opinion that the trial Judge has mis-directed himself and has mis-interpreted the evidence on record in acquitting the respondents. Kumari Chunbadi was dis-believed by the trial court because she did not address Kalloo as her uncle. ( 5 ) AFTER careful consideration of the evidence on record we are of the opinion that the trial Judge has mis-directed himself and has mis-interpreted the evidence on record in acquitting the respondents. Let us proceed with the alleged contradiction in the medical evidence and the oral evidence in so far as all the three eye witnesses have stated that Gorey Lal stepped back before firing the shot. It may be noted that the First Information Report merely says that after some exchange of hot words and exhortation by Surendra Singh, Gorey Lal fired at the victim. The First Information Report does not mention either that Goreylal did not step back before firing or that Goreylal filed from the place where he was standing. The informant merely did not care to give the details of the manner of firing and he was not expected to give these details in the First Information Report.- Thus, what has been taken to be a contradiction between the First Information Report and the statements of the eye witnesses is merely an-omission of insignificant details, It was also argued vehemently that the eye witnesses- have explained the manner of firing simply to reconcile it with the medical evidence. We are of the opinion that even this argument is far fetched. The post mortem report indicated that the disparsal of the pellets was 10 cm x 13 cm and there was no blackening, charring or tattooing on the wound received by the victim. Even if the shot was fired from a distance of five or six cubits, such an injury could have been caused. The victim was sitting towards north west of the fire place Kauda ). He must have been-sitting atleast 6 inches to 9 inches away from the fire. It has come in evidence that the Kauda was about one and a half feet in diameter. The assailant, namely, Goreylal cannot be expected to be standing on the ash of the Kauda. Naturally he must have been standing atleast one to one and a half feet towards south east of the Kauda. Thus, the distance between the victim and the assailants would be four to five feet. The victim was sitting on the ground while the assailant was standing. Naturally he must have been standing atleast one to one and a half feet towards south east of the Kauda. Thus, the distance between the victim and the assailants would be four to five feet. The victim was sitting on the ground while the assailant was standing. Naturally if the paralleled distance between the victim and the assailant was about five feet, the diagonal distance would be about eight feet or so. Hence, even without this supposed improvement the eye-witnesses could have been believed and the prosecution did not need any improvement at all in the manner of occurrence. It would also be pertinent to mention here that the ballastic expert (C. W. 1) Budul Rai was examined on 8. 3. 1979 in the trial court after the prosecution had closed evidence. It cannot, therefore, be said that while examining the prosecution witnesses an attempt was made to bring the ocular version of the incident in conformity with the opinion of the ballistic expert. We are, therefore, of the definite view that the testimony of the three eye- witnesses cannot be rejected on the ground that they made improvement in their deposition so as. to explain the medical evidence. We would also like to point out here that there were six persons sitting around the fire place according to prosecution version and they were Pooran, his wife, his son, his daughter, Kalloo and Jag Mohan. These persons were surrounding the fire place. The assailant must have taken care to protect himself and thus it should certainly be expected that before he could shoot the victim he was likely to be caught by the persons sitting there if he shot at the victim remaining in their close proximity. It was, therefore, natural for Goreylal to step back one or two steps so that his country made pistol might not be snatched away before he could shoorat Pooran. The instinct of self preservation being paramount in every person, Goreylal must have taken precaution to have an escape route after shooting at his victim. Therefore, also it was natural for Goreylal to step back before shooting in the presence of eye witnesses around. The instinct of self preservation being paramount in every person, Goreylal must have taken precaution to have an escape route after shooting at his victim. Therefore, also it was natural for Goreylal to step back before shooting in the presence of eye witnesses around. ( 6 ) CONSIDERING the next point that no urine was found in the bladder of the victim and, therefore, the trial Judge was of the opinion that the incident might have occurred at 4 A. M. as suggested by the defence, we are of the opinion that absence of urine in the bladder is of no help either to the prosecution or to the defence. It was the month of December and, therefore, it was quite possible that even after waking up and before warming himself in front of the fire place, the victim might have gone to the toilet to evaquate his bladder. Absence of urine in the bladder was, therefore a fact which did not help the defence at all. ( 7 ) THE next point for consideration is that no blood was found on the clothes of P. W. 1 Ram Asrey although he allegedly picked up his father Pooran only two to four minutes after the occurrence so that Pooran was brought on the cot lying nearby. We are of the opinion that the learned trial Judge was mis-led by this circumstance. The injuries of the deceased show that he must have died then and there because his heart and both the lungs had been punctured due to gun shot wounds. Had the victim remained alive for some time after receiving injuries it was expected that the son of the deceased would try to help him by lifting him with care and supporting the victims body with his own body and in that circumstance it was expected that the clothes of Ram Asrey would also get blood stains. The victim, however, died then and there and the first spurt of blood fell down on the ground but the post mortem report of the victim clearly shows that-pleura contained a lot of blood. The abdominal cavity contained some blood. Hence after death, blood remained in the body. There was, thus, a very little possibility of Ram Asrey having stained his clothes with blood of his father. The abdominal cavity contained some blood. Hence after death, blood remained in the body. There was, thus, a very little possibility of Ram Asrey having stained his clothes with blood of his father. The argument appreciated by the learned trial court that it was possible that the victim went to urinate and received injuries there and then travelled to his own cot by himself is wholly untenable. In the first place after receiving perforations in the heart and lungs the victim was not expected to come to the, cot himself. Moreover, no blood was found by the Investigating Officer anywhere else in the vicinity of the place of occurrence except where Pooran, the victim of the crime, was said to have received injuries, i. e. at a place towards north west of the Kaud. No trail of blood was found upto the cot of the deceased. Had the victim received injuries while urinating and had he travelled from that place upto his own cot by himself, there must have been trial of blood from that place to the cot. It is also noteworthy that Pooran was not expected to urinate, in front of his main door near the fire place. If the defence suggestion is considered then Pooran must have gone to urinate somewhere outside the cattle shed at a distance from the main door and blood should have been found there if Pooran received-injuries while urinating. The defence suggestion accepted by the learned trial Judge is therefore, wholly untenable. The learned trial Judge disbelieved P. W. 1 Ram Asrey on the ground that he being an employee of the Civil Court, Banda was not expected to idle away his time by sitting near the fire place at 7 A. M. Even this argument is a little far fetched. Village Mawai where the incident occurred is hardly four miles away from Band. P. W. 1 Ram Asrey had, therefore, to travel only four miles and it is expected that he had a cycle and he could cover this distance in hardly 40 minutes. Therefore Ram Asrey could have started for the court at about 9. 15 A. M. Hence he had enough time to sit near the fire place at about 7 A. M. His testimony should not have been rejected on this ground at all. Therefore Ram Asrey could have started for the court at about 9. 15 A. M. Hence he had enough time to sit near the fire place at about 7 A. M. His testimony should not have been rejected on this ground at all. It was argued that Ram Asrey lived in the residential house which was near the house of Kalloo (P. W. 3) which itself was about 150 steps away from the place of occurrence and, therefore, the presence of Ram Asrey was doubtful Even this argument is of no value because the cattle shed where the incident occurred belonged to the family, the main house of which was occupied by Ram Asrey and it must have been near by Moreover it was 7 A. M. when the incident took place and it was quite natural for Ram Asrey to come to the fire place to sit with his father and also to have a chat with him. We, therefore, do not find any reason for rejecting the testimony of P. W. 1 Ram Asrey. ( 8 ) THE learned trial Judge was of the opinion that there was no motive in the mind of the assailants for the commission of this crime because Pooran was only a sympathiser of Jhunna and the real enemy of the assailants was Jhunna himself. We find that the learned Sessions Judge lost sight of the fact that Jhunna was the real brother of Pooran. Pooran is the son of Pitwa and the contents of Ext. Ka-2 show that Jhunna was also the son of Pitwa, P. W. 4 Head Moharrir Ram Adhar who has proved the Ext. Ka-2 the First Information Report lodged by Jhunna on 14/12/1977 has stated in examination-in-chief that Pooran brother of Jhunna who was Pradhanof village Mawaihad also come alongwith Jhunna to lodge the report. It is, therefore, clear that it was Pooran who being the Pradhan of the village pursuaded his brother Jhunna to lodge a report for robbery against the respondents and, therefore, there was nothing unusual in the two respondents having a grudge against Pooran. The evidence of motive was more than sufficient. The mental state of animosity is clear from the words utterd by Goreylal as mentioned in the First Information Report of this case that Pooran being a Chamar was trying to compete with Thakurs. The evidence of motive was more than sufficient. The mental state of animosity is clear from the words utterd by Goreylal as mentioned in the First Information Report of this case that Pooran being a Chamar was trying to compete with Thakurs. Under these Circumstances there was presence of strong motive in the mind of the respondents for the commission of this crime. ( 9 ) THE evidence of Kumari Chunbadi was criticised by the learned trial Judge on the ground that she did not address Kalloo (P. W. 3) as her uncle. There is no evidence that there was any relationship between Kalloos family and the family of Pooran. Hence if Kumari Chunbadi did not address Kalloo as her uncle this circumstance alone could not make her statement unnatural or tutored. P. W. 1 Ram Asrey who is a straight forward witness has admitted in paragraph 9 of his statement that witness Jag Mohan is his grand father and witness :kalloo belongs to his Biradari. He has, however, denied that Kalloo is related to him. If, therefore there was no relationship be tween Kalloo and the family of Pooran, Kumari, Chunbadi need not have addressed Kalloo was her uncle and her testimony cannot be rejected on this ground at all. ( 10 ) THE testimony of P. W. 1 Kalloo has been criticised by the learned trial Judge on the ground that he had received three big has of land from the village Pradhan and therefore, he was in the hands of the family of Pooran. However, we do not find any evidence to the effect that the land was settled by Pooran in favour of Kalloo. In paragraph 14 of Ram Asreys statement it has been stated that Pooran was alive when this land was settled but that does not mean that Pooran was Pradhan of the village at that time. Hence P. W. 1 Kalloo cannot be said to be interested because he had been obliged by Pooran. In paragraph 14 of Ram Asreys statement it has been stated that Pooran was alive when this land was settled but that does not mean that Pooran was Pradhan of the village at that time. Hence P. W. 1 Kalloo cannot be said to be interested because he had been obliged by Pooran. It is true that this witness P. W. 3 Kalloo had come to sit near the fire place after attending the call of nature but it is quite common in the villages during winter season to assemble around fire places in the morning and evening and in this case it was more natural because the fire place belonged to Pooran who was the Pradhan of the village and Kalloo belonged to his Biradari. There was, thus, no plausible reason to doubt the presence of Kalloo at the time of occurrence. ( 11 ) THE learned trial court was also influenced by the fact that no independent witness was examined by the prosecution and there was absence of independent neighbours at the time of occurrence. The learned trial Judge lost sight of the fact that this was a case of a single fire which would have taken hardly a few minutes. Moreover it was an assault by Thakurs against Harijans, There is evidence that the house of Prem Singh brother-in-law of Respondent Surendra Singh is towards east of the place of occurrence. Naturally Prem Singh is not expected to come out to catch hold of the assailants. Towards south of the place of occurrence there are two houses of Kachhees and the other houses belong to Chamars. It the assailants had the andecity to commit this crime in broad day light at the house of the village Pradhan because of caste rivalry it was not expected of the neighbours who were Harijans to come out so as to catch hold of the assailants. P. W. 7 Inspector Subedar Singh has stated that he interrogated Sukhwa, Chhiduwan, Ram Lat, Jhandus, Ram Nath and Alhwa who were neighbours but none of them were eye-witnesses, hence it was unless to produce them. Non-examination of independent neighbours was, therefore, not a circumstance in favour of the defence. P. W. 7 Inspector Subedar Singh has stated that he interrogated Sukhwa, Chhiduwan, Ram Lat, Jhandus, Ram Nath and Alhwa who were neighbours but none of them were eye-witnesses, hence it was unless to produce them. Non-examination of independent neighbours was, therefore, not a circumstance in favour of the defence. ( 12 ) AFTER having considered the statements of the eye witnesses Ram Asrey (P. W. 1), Kumari Chunbadi (p. W. 2) and Kalloo (P. W. 3) we find that there is reliable evidence supported by the facts and circumstances to prove the guilt of the two respondents. ( 13 ) IT was also argued that evidence of exhortation is weak type of evidence and, therefore, no case is made out against the respondent Surendra Singh. We do not find any force in this argument Surendra Singh was armed with a Barchha at the time of occurrence. He had not only instigated Goreylal but had participated armed with Barchha so as to protect Goreylal in case of resistance. The crime was committed in a planned and pre-meditated manner. There is evidence that the country made pistol held by Goreylal was concealed in his Chadar when the assailants came. Had the country made pistol been visible from the very beginning, the victim might have escaped. Respondent Surendra Singh armed with Barchha was behind Goreylal. He was ready to protect Goreylal in case of any resistence. The words used by respondent Surendra Singh to finish the Pradhani of Pooran could not mean anything else except that Pooran should be killed. Hence, it cannot be argued that even if Goreylal might have an intention to commit murder, Surendra Singh was not aware of it. We are of the opinion that both the respondents had come prepared to commit this crime and had also come prepared to make good their escape and, therefore, Surendra Singh was following Goreylal from behind keeping himself at a short distance. ( 14 ) FOR all these reasons, we are of the opinion that Surendra Singh respondent is also equally liable for this crime. ( 15 ) WE, therefore, allow the Government Appeal, set aside the acquittal of the respondents and convict both the respondents under Sections 302/34, I. P. C. So far as the sentence is concerned, it is not a case in which the maximum penal is called for. ( 15 ) WE, therefore, allow the Government Appeal, set aside the acquittal of the respondents and convict both the respondents under Sections 302/34, I. P. C. So far as the sentence is concerned, it is not a case in which the maximum penal is called for. Hence, both the respondents should be sentenced to life imprisonment. We order accordingly. The respondents are on bail. They will surrender forthwith to serve out the sentence. State Appeal allowed. .