JUDGMENT 1. - In this appeal, Dashrath Singh has challenged the judgment of the Sessions Judge, Kola, whereby he has been convicted under Section 302, IPC, and sentenced to imprisonment for life with a tine of Rs. 100/-. 2. A written report (Ex. P.6) was lodged at 2 O'Clock in the mid night of 10th & 11th October,1986. It has been alleged therein that in the evening of 10th October, 1956 at about 8 p.m., he, his father Bhanwar Singh, brother-Umed Singh, mother-Bhanwar Bai, brother-Umed Singh's wife, sister Sangar Bai, his own wife and all family members were present in the house; that, his parents & sister were sitting outside the house at the chabutra, and rest of the members were inside the house, that, hearing devotional acclamation like, 'Jai Bajrrng Bali', both of the brothers & his sister-in-law (brother's wife) rushed to outside their house, his brother Umed Singh unbolted the door and then found Dashrath Singh, Shanker Singh, Chhitar Singh & Sanwal Singh in front of them standing outside at the door of their house (informant's) -out of them, Dashrath Singh had one bore gun, Spanker Singh had a sword, Chhitar Singh had a lathi while his father Sanwal Singh had a chopper in their hands. They asked about Ummed Singh making enquiries from his father (informant's), so also about Jugraj and then exhorted that they would kill Umed Singh & Jugraj. As soon as his sister-in-law saw the afore named persons exhorting, upon unbolting the doors, she immediately dosed the door and bolted it from outside, but these named persons started beating his parents and sister-in-law. Thereupon, as alleged in the report, forcibly the hasp of the door was unfastened by them and opened the door, Dashrath Singh flashed through torch on the face of his brother and opened attack by gun shot and the gun shot hit upon the face of Ummed Singh who instantaneously fell on the ground; thereafter, in order to kill him (informant), Dashrath Singh had to fill with cartridges. The informant then seeing his brother Ummed Singh's face profusedly bleeding because of gun shot, made escape to flee away therefrom, but he was chased by Sh hanker Singh with sword and his sword blow caused injury at his right armpit, and he was chased by these persons for some distances but he made him self escaped from there. The informant then seeing his brother Ummed Singh's face profusedly bleeding because of gun shot, made escape to flee away therefrom, but he was chased by Sh hanker Singh with sword and his sword blow caused injury at his right armpit, and he was chased by these persons for some distances but he made him self escaped from there. In the way he met with Shivraj Singh & Raincharan both of whom had come to the police. The scribe of the report was allegedly Shivraj Singh. The report was lodged by Jugraj Singhs/o Bhauwar Singh and brother of Ummed Singh, at police station Khatoli (District Kota). F.I.R. No. 80/86 (Ex. P.7) was chalked out for offence punishable under Section 302/34, [PC. The police reached the place of occurrence. Site was inspected and its inspection memo was prepared. Blood stained earth was taken from the place of occurrence. Empty cartridges were recovered therefrom also, in the next morning. Autopsy of Unlined Singh was conducted and its report is Ex. P. 17. Photographs of dead body of Unlined Singh were taken vide Ex.P. 2 to P.5. Bhanwar Singh, Bhanwar Bai, Jugraj Singh, Sint. Shangar Bai, Sint. Bhanwar Ba i w/o Ummed Singh were medically examined and their injury reports are Ex. P.18 to P.22. Single barrel gun alongwith its licence were recovered at the instance of Dashrath Singh. 3. After further usual investigation and completion thereof, the police submitted charge-sheet. After committal proceedings, the accused were tried for the charges under Sections 302/34, 302, 323 & 323 read with Section 34, IPC. In all, eleven prosecution witnesses were examined. Accused persons,Shan ker Surgh, Chittar Singh, Sanwal Singh and Dashrath Singh were examined under Section 313, Cr.P.C. Six witnesses were produced in defence. Learned Sessions Judge, Kota acquitted three accused of the charges levelled against them but, convicted & sentenced present accused-appellant Dashrath Singh as indicated above. The present appellant has been acquitted of the charge under Sections 324/34 & 323/34, IPC. 4. Shri A.K. Gupta learned Counsel for the appellant contended that F.LR was despatched belatedly and it reached the Court on 19.10.86 through Heeralal L.C. of police station Khatoli who has also not been produced in Court and that apart, the prosecution has not explained this delay of eight days, and, therefore, this delay makes the prosecution case doubtful and is fatal to it. 5. 5. We have looked at the written report (Ex.P.6) and F.LR (Ex.P.7).According to Ex.P.7, F.LR. reached the Court on 15.10.1986 and not on 19.10.1986 as contended by Shri A.K. Gupta. We carefully examined the material on record and we are unable to accept the submission of the learned Counsel. Jugraj Singh had proved the submission of report (Ex.P.6) at Police Station. Jugraj Singh was not specifically cross-examined on this matter. His statement containing corroborative version as given out in the F.I.R. was recorded on 11.10.1986 by the police. Gopal Singh (PW9) who received written report (Ex.P.6) and who chalked out F.I.R (Ex.P.7) proved these reports and its contents. He was also not specifically cross-examined in this matter, as to the delay in reaching the Court. Apart from the records of police station, the Panchanama (Ex.P.10) to which Hanunurn Singh (PW7) has admittedly appended his signature shows that F.I.R was lodged on 11.10.86 at midnight at 2a.m. Hanuman Singh though was declared hostile but he admitted in cross-examination that the memos prepared by the police which contain his appended signature at the respective places thereon, were in his presence, and whatever had been seen by rum had been got written by him. No question has been put to Gopal Singh (PW9) as to the delayed arrival of The report at the Court. The Court cannot therefore, presume something adverse to the witness unless his attention is specifically drawn to it. Moreover the records contain unimpeachable evidence to the contrary. We therefore, do not find any merit in any of the contentions put forth by the appellant's counsel to assail the admissibility of Ex.P.6 & 7 or the truth of its contents. 6. Learned trial Court has based the conviction of the appellant on the testimony of Jugraj Singh (PW2)4 Bhanwar Bai (PW3), Bhanwarlal (PW4) & Shingar Bai (PW5). Lea med trial Court, Shri Gupta contended, once observed that these four witnesses have not given true version as regards other co-accused persons (who have been acquitted by it), then according to Shri Gupta, the possibility of false implication of the present appellant cannot be ruled out. Shri Gupta also contended that the-evidence of PWs 2 to 5 is of an interested nature because they all related being brother, sister and parents, to the deceased. It is true that PWs 2 to 5 are closely related to the deceased. Shri Gupta also contended that the-evidence of PWs 2 to 5 is of an interested nature because they all related being brother, sister and parents, to the deceased. It is true that PWs 2 to 5 are closely related to the deceased. The incident has taken place after evening at about 8 p.m. Not only in the F.I.R. & police statements, but also in the prosecution evidence led before the trial Court, the presence of these witnesses is established and proved at the crucial time of incident. They were all residing with the deceased alongw ith his parents and brother so also sister in the house where the incident took place and where the deceased was attacked by firing gun shot, and where the deceased was found dead lying after assault. Their presence at the time of incident in their house was not doubtful nor shaken by putting questions while they were being cross-examined by the defence counsel. These four witnesses are natural ones and not chance witnesses. Their evidence cannot be stigmatised as interested testimony. It is well settled law that evidence of witnesses to the occurrence cannot he thrown overboard merely because they are interested and partisan witnesses. All that the law demands is that their evidence should be scrutinised with great care and caution to safeguard against the normal temptation to falsely implicate others. The trial Court had adopted that approach in evaluating the evidence of the eye witnesses. On a critical examination of their evidence it concluded that their evidence stood corroborated by medical evidence, in that, it disclosed that Ummed Singh had received as many as multiple (ten) punctured wounds in tongue containing lead pellets, in addition to' other injuries stated herein below. 7. While the autopsy of Ummed Singh was being conducted by Dr. Prem Chandra Khardelwar (PW8) be found the following injuries and condition of the deceased His post-mortem report is Ex.P.17. Bleeding from both nostrils. Oral cavity destroyed. Lacerated wourd 3"X2" on the left side of face, margins are black and ragged. The lower jaw is crushed. Tongue is black and tom in places. Multiple small pieces of lower jaw bone and tooth.Left side of buccal cavity is destroyed. The tongue is black and there is multiple (ten) punctured wound in tongue containing lead pellets. Pharynx is obstructed by blood clot, pieces of teeth and bones. The lower jaw is crushed. Tongue is black and tom in places. Multiple small pieces of lower jaw bone and tooth.Left side of buccal cavity is destroyed. The tongue is black and there is multiple (ten) punctured wound in tongue containing lead pellets. Pharynx is obstructed by blood clot, pieces of teeth and bones. Blood clot, pieces of bone and tooth are present in larynx and trachea. 8. In additional remarks col., the doctor mentioned that 48 lead pellets with small rubber pieces diameter 3/4" X 3/4" greennish in colourare found in oral cavity, and the air passage is obstructed by blood clot, pieces of bone and tooth. 9. According to the doctor, the deceased died due to sudden asphyxia, due to sudden obstruction of air passage by blood clot, pieces of tooth due to gun shot injury on just below the lower jaw on left side. Dr. Khandelwal (PW8) who performed the post mortem, states in cross-examination that gun shot injuries like the one could he caused if fired at from a short distance. Dr. Khandelwal (PW8) has proved the post mortem report and injuries found on the person of the deceased. 12 bore gun of one barrel was got recovered at the instance of the present appellant on 10.7.87 vide memo Ex. P.28, alongwith licence. 10. It may however be noted that the learned trial Court has disbelieved the evidence of PW2 Jug raj Singh only tot lie extent of alleging assault by sword at the hands of Shenker Singh on his person. But his evidence establishing causing gun shot injury on the person of the deceased by t he present appellant has been believed in tutu, holding it to be worthy of credence. Similar is the position observed by the trial Court, with regard to the evidence of other three witnesses (PW3 to P W5). All the eye witnesses stated that there were light of lament having lit in their house, and there was source of sufficient light from lantern. 11. Upon cross-examination the prosecution witnesses admitted that the house of the accused persons is situated in their locality just five-six houses ahead, and the appellant so also other accused were not strangers to them. All the eye witnesses stated that there were light of lament having lit in their house, and there was source of sufficient light from lantern. 11. Upon cross-examination the prosecution witnesses admitted that the house of the accused persons is situated in their locality just five-six houses ahead, and the appellant so also other accused were not strangers to them. Their evidence on the question of identity on account of taint light or in lantern light cannot be doubted in the circumstances, the accused are alleged to have conic to the house of the deceased and firstly after their arrival [hey exhorted raising Lalkar to the deceased and Jugraj Singh, asking their parents (PW4) & sister (PW5) who were sitting outside their house on the chabutri. Thus, on the question of identity it is clear from the evidence of PWs 2 to 5 that the present appellant was known to them quite well since before the incident. They could, therefore, have no difficulty in identifying the appellant even in poor light. 12. We see no merit in the submission that part of the prosecution story unfolded by these four witnesses was found to be unacceptable to convict the three of the accused and, therefore, it would not he prudent to place implicit reliance on their testimony in regard to the involvement of present appellant. That per se does not mean that the witnesses which had deposed to the participation of the appellant at the time of occurrence have to be dubbed as liars. 13. The acquittal of three co-accused on the ground that their participation in the crime is not established by the prosecution evidence to the actual assault and being not corroborated by the medical evidence as to injuries on the person of the witnesses, can have no reflection so far as the credibility of PWs 2 to 5 is concerned. Any way, that cannot impinge on the credibility of PWs 2 to S if their evidence is otherwise acceptable, which we find it is. 14. PWs 2 to 5 gave consistent evidence as to the participation and assault by gun shot by the present appellant on the person of the deceased at his face. We find that they are truthful witnesses who were not prepared to falsely implicate the other accused. 14. PWs 2 to 5 gave consistent evidence as to the participation and assault by gun shot by the present appellant on the person of the deceased at his face. We find that they are truthful witnesses who were not prepared to falsely implicate the other accused. Their evidence also lend corroboration when they say that they had seen all the four accused arriving at their house and the present appellant assaulting the deceased by gun firing. It is a different matter, they could not have been found to establish attributing the injuries found on the injured pen,;oils to the acquitted accused persons beyond doubt. They have no reason to falsely implicate the appellant, atleast none has been suggested. 15. All the, four witnesses consistently deposed that parents and sister of the deceased were sitting outside their house at the chabotri; that they heard devotional acclamation of"Bajrang Bali"; that parents and sister sitting outside at the Chahutri saw the appellant & three co-accused (acquitted) reaching at the door of their house making devotional acclamation and upon their arrival at the house, asking them exhortatively with a challenge that They would not span; Jugraj Singh & Unused Singh; that, Jugraj Singh, Bhawan Bai wd/o Ummed Singh and Ummed Singh rushed towards outside upon hearing devotional acclamation, and then seeing the accused persons at their doors duly armed with gun and deadly weapons,Bhanwar Bai immediately fastened the hasp of the door but Dashrath Singh opened the door by unfastening the hasp and fleshed the torch inside the house and finding Unused Single in front of door, opened lire the gun shot at the face of the deceased thereby the deceased instantaneously fell on the ground in a condition of profusedly bleeding from his mouth and nostrils; and that seeing the deceased having fallen on the ground in a critical position, Jugraj Singh came outside his house and moved to flee away and at that time, he was chased by the accused persons. 16. 16. Merely because one of the witnesses deposed that two fires were shot and out of them, first or second hit in the wall and the pellets from the wall were not recovered by the investigating officer, that per se does not mean that whole case is false, while their evidence as to the one gun shot which hit the deceased resulting in smashing his complete face as found by the medical evidence, is corroborative and is otherwise acceptable which we find it is. 17. The contention that as there was no immediate cause for provocation, the accused would not have attacked the deceased, would have some weight only if the accused and deceased had been on friendly and cordial tens all through and a sudden conflagration had taken place. h i t he present case, far from the parties being on cordial terms, they were at loggerheads for long and were bitterly opposed to each other. Even upon cross-examination, the prosecution witnesses admitted that conflagration had taken place in the matter of children's dispute/feud in between the womenfolk of both the parties. Obviously, therefore, the appellant must have been wailing for an opportunity to do away with the deceased and should have launched the attack on the date in question We do not find any improbability in the prosecution case that the appellant had joined hands and come in a body to attack the deceased. 18. As rightly pointed out by the trial Court, the discrepancies in the evidence of PWs 2 to 5 on peripheral masters are not at all material. There could be variation regarding the postures of the victim, the position of the appellant and even the place where the witness was at the time the occurrence happened, but the broad facts that the victim was inside t he house, and the deceased has rushed towards exit door upon hearing devotional acclamation from outside their house, alongwith his wife (PW 3) and brother (PW 2) are convincing. We also do not find anything in the medical evidence to doubt the veracity of the statements of PW 2 to PW 5 that they had the gunshot and noticed the deceased and the appellant immediately. We also do not find anything in the medical evidence to doubt the veracity of the statements of PW 2 to PW 5 that they had the gunshot and noticed the deceased and the appellant immediately. The fact that the deceased had gun shot injuries, that the punctured multiple wounds were on the nostrils, buccal cavity, trachea, tongue, only corroborate evidence of PWs 21o 5 and leave no room for doubt that the deceased was shot at by the appellant who was seen immediately with the gun in his hand by the witnesses. 19. It was then pointed out that the site plan does not state the pellets having been recovered from the wall or the wall having tattooing of blackening or having holes whereas the prosecution witnesses stated so, no pellets have been recovered from the scene, or the wall, the gun has not been examined by the a expert and that the best evidence has not been tendered by the prosecution, that an adverse inference has to be drawn and in view of the lacunae, the prosecution evidence should have been rejected. 20. It has also been urged that as per site plan, holes of the pellets were found in the outer wall of the house of the deceased. When two or there eye witnesses admitted in their deposition that the gun was fired at the deceased who was inside the house; so, if the ocular evidence is considered to be true then it is not possible that the pellets ought to have hit the outer wall of the house. According to Shri Gupta, a look at the statement of the witnesses, giving ocular account of the incident, shows that at one stage, they stated that the appellant fired gun standing at the exit door-sill of the house, on the other hand, they deposed that the appellant entered the house from the exit door-sill then lie fired gun at the deceased. Taking the aid of these circumstances, Shri Gupta contended that if the gun is tired entering inside the house then possibility of holes of the pellets found in the outer wall is ruled out. We am unable to accept the a foresaid contention because the incident took place in the night and the assailants were as tired with deadly weapons. Taking the aid of these circumstances, Shri Gupta contended that if the gun is tired entering inside the house then possibility of holes of the pellets found in the outer wall is ruled out. We am unable to accept the a foresaid contention because the incident took place in the night and the assailants were as tired with deadly weapons. One of them was the appellant who was armed with gun and who fired at the deceased causing serious gun shot injuries resulting in completely destroying the nostril, face, jaw and teeth. On account of first gun shot tired by the appellant, the deceased fell down instantaneously on the ground in a profusedly bleeding state of condition then it is just possible that the eye witnesses might have forgotten or were not in a mental state of condition to give out events of the incident fully such as of finding holes in the outer wall. And they have only given out to the police as to the actual assault made on the deceased. Moreover in the cross-examination by the defence counsel by they specifically deposed that they have given out such deposition to the police but the police did not write in their police statements as to the holes found in the outer wall. After going through the entire statement of eye witnesses as observed by us, supra, we are of the view that the gun was fired by the appellant which hit the deceased causing serious injuries, and that, the photos (FAY I to P. 5) of the deceased proved by PW 1 which were taken immediately at the instructions of the investigating officer, show that the deceased as a result of gun shot injuries caused by the appellant fell down instantaneously, thereby was found lying at the exit door-still of his house which shows that the deceased was attacked by the assailants standing at the exit door-still and in these circumstances, the gun can be fired from outside and so, in that situation, the pellets may disperse entering the outer wall and large number of pellets recovered from the mouth of the deceased makes it precise that some of the pellets may also disperse making holes in the outer wall. However, on the basis of such arguments, other credible evidence of the eye witnesses at least as to the actual assault which we find it as acceptable, cannot be thrown over the board. 21. Moreover, from I he statement and deposition of the eye witnesses, it transpires that two shots were fired one of which hit the deceased and none was injured by other fire. Therefore, in that situation also, it is established that the holes found in the outer wall of the house could be as a result of second fire. We don't find any force in the arguments. The investigating officer immediately after taking down the report in the mid night at 2 a.m., visited the place in the next morning at about 6 O'clock when the police station is said to heat a distance of 15 kms. away from the place of occurrence, and he prepared the site plan on that very point of time. He could not trace the pellets but the use of firearms is proved beyond doubt. There is no suspicious circumstance to doubt the correctness of the prosecution version to lime actual assault by gun shot fired by the appellant. 22. Having gone through the entire evidence we are of the view dial the testimony of PW 2 to PW 5 is truthful, that they had consistent version and the circumstances corroborated their evidence. There is apparently no conflict between the oral evidence and the medical evidence and the circumstances irresistibly lead to the only conclusion that it was the appellant and none else who was responsible for the fatal injury sustained by Ummed Singh. The charge of murder against the appellant has been proved to the hilt by the circumstances established in the case as rightly found by the learned trial Count assigning valid reasons, and we have only to confirm the conviction. In the result, we dismiss the appeal. The appellant is in jail and he be detained to serve out the unexpired portion of sentence.Appeal dismissed. *******