S. N. SEXENA, J. This criminal appeal is directed against the judgment and order dated 2. 7. 1980, whereby Shri R. R. Jatav the then learned Sessions Judge, Hamirpur convicted appellants Badri and Katori under Sections 394 and 302 read with Section 34, IPC and sentenced each of them to undergo rigorous imprisonment for three years and imprisonment for life for the said offences respectively. The facts, which gave rise to the present appeal, are as follows: 2. Accused Badri and Katori belonged to village Budhawara within Police Station Ajanar district Hamirpur. Complainant Ghulam Shabbir (PW-1), Ghulam Ayyub (PW-2) and deceased Ghylam Shabbir were residents of village Balapur within Police Station, Balapur district Akola of Maharashtra. They used to do the business of cloth including bed-sheets and daris at different places and in connection with the same had come to this State also. The incident resulting in the murder of Ghulam Shabbir had taken place on 8-11-1978 at about 12 noon in the precincts of village Rampura. The above named persons had taken a house on rent in Tikamgarh in district Chhatarpur and from there used to go to different places to sell cloth. Two days prior to this incident, they had gone to village Budhawara and had stayed there on 6-11-1978, Both the accused had asked the deceased and his companion Ghulam Shabbir to sell some cloth on credit. They, however, had not agreed for the same due to which altercations had taken place. The accused persons abused and gave threats to both of them. Next day, the deceased and his companion Ghulam Shabbir had gone to village Sagunia where they had sold cloth during the day. On the day of this incident i. e. 8-11-1978, they were going to village Ajanar for carrying on their business. Complainant Ghulam Shabbir was ahead of his companions by a few steps. Deceased Ghulart Shabbir was following him while Alimuddin alias Sheikh and Ghulam Ayyub were behind Ghulam Shabbir. They were in the precincts of village Rampura and had reached near a drain described as Nala by the witnesses and also shown in the site-plan Ext. Ka-8 as Nala by the Investigating Officer, when the two accused came out of a Jwar field and started moving in the same direction ahead of the compalainant Ghulam Shab bir. They were in the precincts of village Rampura and had reached near a drain described as Nala by the witnesses and also shown in the site-plan Ext. Ka-8 as Nala by the Investigating Officer, when the two accused came out of a Jwar field and started moving in the same direction ahead of the compalainant Ghulam Shab bir. On reaching near the Nala, both the accused persons started washing their hands in the water. Complainant Ghulam Shabbir enquired from them about the way to village Ajanar upon which they hurled abuses and further directed them to proceed silently on the way on which they were going. It was about 12 noon at that time. The complainant and his companions including Ghulam Shabbir proceeded further on the way. The story further goes that Complainant Ghulam Shabbir and crossed the Nala and was proceeding further when accused Katori inflicted lathi blow upon Ghulam Shabbir which hit him. Ghulam Shabbir raised alarm and accused Badri then took out a country made pistol (Tamancha) and fired a shot upon him. Ghulam Shabbir was hit by the shot and had fallen dead on the ground. The Complainant and his companions rushed towards the accused persons upon which accused Badri with the help of his country made pistol threatened them with serious consequences. Accused Katori took out Rs. 700 from the pocket of the deceased Ghulam Shabbir and both the accused, thereafter, ran away in the northern direction. Complainant Ghulam Shabbir left Alimuddin alias Sheikh and Ghulam Ayyub at the place of occurrence and himself went to Police Station Ajanar where he lodged the FIR of the incident with the Police at 12. 30 p. m. vide Ext, Ka-3. The Police registered a case in the general diary and the investigation followed as usual. The dead body of Ghulam Shabbir, after completion of the necessary formalities by the Investigating Officer, was sent to the mortuary for Post- mortem examination. After the completion of the investigation, the Police challaned the accused persons for trial under Sections 394 and 302, IPC. 3. Learned lower Court on 7-11-1979 charged both the accused persons under Sec tions 394 and 302 read with Section 34, IPC to which they pleaded not guilty and claimed trial. The defence of the accused persons consisted of their denial of the guilt. 3. Learned lower Court on 7-11-1979 charged both the accused persons under Sec tions 394 and 302 read with Section 34, IPC to which they pleaded not guilty and claimed trial. The defence of the accused persons consisted of their denial of the guilt. The suggestion put to the prosecution witnesses on their behalf during the cross-examination showed that they allegedly had been falsely implicated at the instance of Narain Dass of village Budhawara. 4. The prosecution, in order to prove the guilt of the accused persons, examined Complainant Ghulam Shabbir as PW-1 and Ghulam Ayyub as PW-2. Both of them supported the prosecution story on all material points. The suggestions put to these two witnesses in the cross-examination for the accused persons showed that a feeble attempt was made by them to show that they had at the instance of one Narain Dass of village Budhawara, falsely implicated them in this case. Complainant Ghulam Shabbir (PW-1), however, denied the aforesaid suggestion and stated that he did not know any person named Narain Dass and had not talked at the Police Station with any person belonging to village Budhawara. He expressed ignorance if Narain Dass was on inimical terms with the accused persons. PW-2, Ghulam Ayyub also in his cross-examination stated that he did not know from before any person of village Budhawara by name and that he had come to know about the names of the accused persons from the residents of village Budhawara after they had threatened him and his companions with serious consequences after hurling abuses, as they had refused to sell cloth on credit to them. He denied the suggestion that he had not witnessed the incident. The prosecution examined PW-3 Dr. M. K. Singhal, who had conducted the post-mortem examination on the dead body of Ghulam Shabbir on 9-11-1978 at 1. 00 p. m. He proved the post-mortem examination report Ext. Ka-4 and stated about the ante-mortem injuries found by him upon the dead body. He had found the following ante-mortem injuries on the dead body of Ghulam Shabbir: (1) One wound of gun shot entry 3 cm. x 3 cm. x chest cavity deep, present on the back left side at 6th and 7th ribs, 4 cm. from mid line with lacerated, blackened and charred margins in 1. cm. area around. He had found the following ante-mortem injuries on the dead body of Ghulam Shabbir: (1) One wound of gun shot entry 3 cm. x 3 cm. x chest cavity deep, present on the back left side at 6th and 7th ribs, 4 cm. from mid line with lacerated, blackened and charred margins in 1. cm. area around. The pellets passing through the underlying muscles had fractured 6th and 7th ribs at the region and entered in posterior wall of left pleural cavity lacerating it and the left lower lobe of long upper part, making almost a circular hole of 4 x 4 cm. size. The pellets passed into the anterior pleural layer, pericardium and the left ventrical of the heart which was lacerated. Two ticklies pieces recovered from left ventricle of heart and one tikli from left lung. 12 pellets recovered from left lung zone, eight from left ventricle and six from anterior intercostal muscle. Left pleural cavity contained about 1 pint of blood. (2) Contusion on the outer side of left elbow joint, measuring 5 cm. x 1. 5 cm. , obliquely placed. (3) Contusion above left shoulder joint, upper part, measuring 4 cm. x 1. 5 cm. , obliquely placed. (4) Multiple abrasion in 4 cm. x 4 cm. area on the back and outer side of lower 1/3 left forearm. (5) Abrasion 2 cm. x 2 cm. area, on the outer side of the middle part of right forearm. 5. The internal examination of the dead body had revealed laceration of the heart and the left lung. The stomach was found empty and digested food was present in the small intestines. The large intestines contained faecal matter and gases. In the opinion of the Doctor. Ghulam Shabbir died as a result of shock and haemorrhage due to the injuries to the heart by a fire-arm. He had found 26 pellets and 3 tikli pieces from the dead body. He stated that the death of the deceased Ghulam Shabbir could have taken place at about 12 noon on 8-11-1978 and a margin of six hours on either side was possible in his opinion about the probable time of death. 6. PW-4 Vishwanath Pandey was posted at Police Station, Ajanar on 8-11-1978 as Constable Moharrir. He proved the FIR Ext. He stated that the death of the deceased Ghulam Shabbir could have taken place at about 12 noon on 8-11-1978 and a margin of six hours on either side was possible in his opinion about the probable time of death. 6. PW-4 Vishwanath Pandey was posted at Police Station, Ajanar on 8-11-1978 as Constable Moharrir. He proved the FIR Ext. Ka-3 and stated that he had drafted the same on the dictation of Complainant Ghulam Shabbir, who had signed it after he had read over the same to him. He proved the registration of the case at the same date and time in G. D. No. 11 vide Ext. Ka-5, which is a copy of the entry of the registration of the case. In his cross-examination, stated that no person of village Budhawara was present at the Police Station when the FIR of this incident was written by him and he did not know Narain Dass of village Budhwara. He denied the suggestion that the FIR was drafted sometime later and was ante-time. PW-5 Chandra Pal Singh, was posted as Station Officer, Ajanar when this incident had taken place and was present at the Police Station when the FIR was taken down and the case was registered there. He had taken the investigation in his hands and interrogated Complainant Ghulam Shabbir PW-1 at the Police Station. Thereafter, he had gone to the place of occurrence alongwith Police force and had interrogated Alimuddin alias Sheikh and Ghulam Ayyub. Therafter, other formalities were completed by him at the spot which was inspected by him and he prepared the map Ext. Ka-8 of the place of occurrence. He had found Rs. 74 in the pocket of the Kuna of the deceased Ghuulam Shabbir and Rs. 3. 50 in the right pocket 01 the Baniyan of the deceased. He had taken the amount in his possession and completed the necessary formalities in respect of the same. Accused Badri was arrested by him on 23-11-1978 and he had submitted charge-sheet Ext. Ka-18 aginst him on 16-1-1979. Accused Katori was arrested on 1-2-1979 and charge-sheet Ext. Ka-19 against him was submitted on 1-2-1979. He had taken the amount in his possession and completed the necessary formalities in respect of the same. Accused Badri was arrested by him on 23-11-1978 and he had submitted charge-sheet Ext. Ka-18 aginst him on 16-1-1979. Accused Katori was arrested on 1-2-1979 and charge-sheet Ext. Ka-19 against him was submitted on 1-2-1979. In his cross-examination, he stated that he had come to know during the investigation that the villagers had told the names of the accused persons to the complainant and other prosecution witnesses and he had not found it necessary to put the accused persons for test identification. Further, he stated in his cross-examination that he had not met any person named Narain Dass of village Bud hawara. 7. The accused persons did not examine any witness in defence. 8. Learned lower Court, after taking into consideration the evidence on the record and the facts and circumstances of the case, arrived at the conclusion that the prosecution had been able to establish successfully the guilt of the accused persons beyond reasonable doubt. Learned Sessions Judge, therefore, convicted and sentenced them as mentioned above. Feeling aggrieved, they preferred this appeal. 9. Learned Counsel for the appellants contended that neither of the above named two prosecution witnesses knew the names of the accused persons from before the incident that they had implicated them at the instance of one Narain Dass of village Budhawara; that the Investigating Officer should have put the accused persons for test identification by the eye-witnesses of this occurrence and his failure to do so had rendered the prosecution evidence unworthy of credit and that the appeal, therefore, was liable to be allowed. 10. 10. For the State, however, it was contended that complainant Ghulam Shabbir (PW-1) and Ghulam Ayyub (PW-2) knew the names of the accused persons and that they had been rightly named as accused persons in the FIR; that it was for them to claim identification if they had been unknown to the complainant had Ghulam Ayyub (PW-2), which, however, was not claimed by them; that their contention now that they were unknown to Ghulam Shabbir and of Ghulam Ayyub was devoid of merits and that the statement in cross-examination of Ghulam Ayyub (PW-2) showed that he and Ghulam Shabbir as well as their two other companion including the deceased had come to know the names of the accused persons on 6-11-1978 in village Budhawara after they had been abused and threatened by the accused persons and there were no reasons at ail to doubt the identity of the accused persons. After carefully considering these submissions and going through the Statements of Complainant Ghulam Shabbir (PW-1) 8fld Ghulam Ayyub (PW-2) we are of opinion that the submissions put forward on behalf of the appellants were devoid of merits, PW-2 Ghulam Ayyub admitted in the last but one part of his cross examination that he did not know any resident of village Budhawara by flame. Even, thereafter, he was cross-examined for the accused persons and then he stated that after the incident of abuse and threatening on 6-11-1978 in village Budhawara, they had come to know the names of the accused persons from the residents of village Budhawara. We find no reasons at all to disbelieve the aforesaid statement in cross-examination of PW-2 Ghulam Ayyub which established beyond doubt that they had come to know the names of the accused persons on 6-11-1978 in village Budhawara. It was under these circumstances not necessary for the Investigating Officer to put the accused persons for test indentification, particularly when no request for the same had been made on their behalf. No doubt, no adverse inference could be drawn against the accused persons due to their failure to claim indentification, but at the same time the prosecution version regard ing their names could not be disbelieved simply because test identification proceedings of the accused persons were not got conducted by the Investigating Officer. No doubt, no adverse inference could be drawn against the accused persons due to their failure to claim indentification, but at the same time the prosecution version regard ing their names could not be disbelieved simply because test identification proceedings of the accused persons were not got conducted by the Investigating Officer. The eye-witness account, regarding the identity of the accused persons with reference to their names, therefore, was liable to be believed and the learned lower Court had rightly placed reliance upon the same. 11. The accused persons tried to make out a case that they had been named in the FIR at the instance on one Narain Dass who too was a resident of village Budhawara, but they had not been able to succeed in the same. Complainant Ghulam Shabbir (PW-1) as well as Ghulam Ayyub (PW-2), as already mentioned above, denied the suggestion of the defence about the naming of the accused persons at the instance of Narain Dass. They, to the contrary, stated that they had not talked to any person at the Police Station and had not named the accused persons at the instance of any person named Narain Dass. This part of their testimony appears to be reliable and worthy of acceptance. The said suggestions were denied by Vishwanath Pandey (PW-4), who had drafted the FIR of the case and registered it in the general diary as well as the Investigating Officer (PW-5), Chandra Pal Singh. The accused persons, thus had miserably failed to substantiate their aforesaid suggestions on the basis of which the eye-witness account could not be disbelieved. 12. We find it necessary to mention that Complainant Ghulam Shabbir (PW-1) and Ghulam Ayyun (PW- 2) had got no reasons at all for false implication of the accused persons. They belonged to Maharashtra Province and used to sell cloth by roaming about in different villages. They came to know the accused persons for the first time on 6-11-1978 in village Budhawara when the accused persons had abused and threatened them, as they had refused to sell cloth or. credit to them. They, therefore, had got no motive for false implication of the accused persons. To the contrary, it appeared that the accused persons had left enraged due to the aforesaid incident on 6-11-1978 and, therefore, had committed this incident on 8-11-1978, at about 12 noon. credit to them. They, therefore, had got no motive for false implication of the accused persons. To the contrary, it appeared that the accused persons had left enraged due to the aforesaid incident on 6-11-1978 and, therefore, had committed this incident on 8-11-1978, at about 12 noon. It was a matter of common experience that business-men belonging to the class of Ghulam Shabbir (PW-1) and Ghulam Ayyub (PW-2) and the deceased Ghulam Shabbir could not have agreed to the false implication of the accused persons at the instance of their enemy so as to invite the trouble of coming again and again from Maharashtra for deposing falsely in this case against them. The possibility of the false implication of the accused persons in this case, thus, was not at all there. The incident had taken place in broad-day light and it was promptly reported to the Police after half an hour vide Ext. Ka-3. The distance between the place of occurrence and the Police Station was about 2 miles. There was, thus, nothing improbable or unnatural so far as the testimonies of Ghulam Shabbir and Ghulam Ayyub were concerned and, in our opinion, the learned lower Court had rightly placed reliance upon the same. 13. For the appellants, our attention was drawn to a few alleged contradictions in the statements of the above-named two witnesses and it was argued that the eye-witness account, therefore, was liable to be disbelieved. The argument, however, did not appear to carry force. Complainant Ghulam Shabbir (PW-1) has described the fire-arm as a gun (Bandook) measuring about one metre while Ghulam Ayyub (PW-2) has described it as a pistol (Pistaul) at page 3 of his statement, Ghulam Ayyub (PW-2) stated that he used to call Tamancha as a pistol and at times as Bandook also. In the FIR Ext-Ka-3, Complainant Ghulam Shabbir has described it as Tamancha. We have carefully considered this variation and are of opinion that it is of little significance and on its basis the eye-witness account, in view of the facts and circumstances of the case already discussed, could not be disbelieved. Learned lower Court appears to have rightly arrived at the same conclusion. The other alleged inconsisency in the eye-witness account was regarding the direction in which the accused and the deceased as well as the witnesses were proceeding near the Nala. Learned lower Court appears to have rightly arrived at the same conclusion. The other alleged inconsisency in the eye-witness account was regarding the direction in which the accused and the deceased as well as the witnesses were proceeding near the Nala. After carefully going through the statements of the above named two witnesses and perusing the site-plan Ext. Ka-8 prepared by the Investigating Officer, we find that the alleged inconsis tency was not there. Persons moving in a particular direction see towards their right and left also and it was, therefore, possible that when witnessed by Ghulam Ayyub (P W-2) the deceased was seeing in the north-east direction. It was also important to mention that for a stranger it is not easy to have an exact idea of the directions which one generality remem bers with reference to his residential house only. Both the witnesses resided far away from the place of incident in the Province of Maharashtra. They used to roam about at different places. They, therefore, could have committed bona fide mistakes. It was therefore pos sible that some insignificant variation was there regarding the direction, but in view or the other facts and circumstances of the case already discussed above, the eye- witness account could not be disbelieved on the basis of the same. We, thus find that the learned lower Court had rightly relied upon the eye-witness account and returned the verdict of guilt against the appellants. 14. Learned Counsel for the appellants contended that Section 34 of the Indian Penal Code was not attracted to the facts of this case, as there was no evidence of prior meeting of the minds of the two accused persons for committing murder of Ghulam Shabbir and the robbery af4er he had fallen on the ground; that there was no evidence to show that accused Katori had got the knowledge that accused Badri was carrying a country made pistol with him and that Katori, therefore, could not be convicted under Section 302, IPC read with Section 34, IPC. After carefully going through the evidence on record, we find that the contention carried force and accused Katori, therefore, could be convicted under Section 323, IPC only. The conviction of appellant Badri who had fired that fatal shot upon the deceased, was liable to be maintained under Section 302, IPC. 15. After carefully going through the evidence on record, we find that the contention carried force and accused Katori, therefore, could be convicted under Section 323, IPC only. The conviction of appellant Badri who had fired that fatal shot upon the deceased, was liable to be maintained under Section 302, IPC. 15. Both the appellants have been convicted under Section 394, IPC, but the evidence on the record showed that Katori, after Ghulam Shabbir had fallen had taken out Rs. 700 from his pocket and both the appellants thereafter, had run away. The Act of robbery, therefore, could not be attributed to accused Badri and his conviction and sentence under Section, 394 IPC were liable to be set aside. Appellant Katori for the offence under Section 323, IPC was liable to be convicted and sentenced to rigorous imprisonment for six months. The sentence of life imprisonment for appellant Badri for the offence under Section 302, IPC was liable to be confirmed. 16. The record of the appeal revealed that the two appellants were granted bail after they had served out their sentences for about six years in the jail. Appellant Katori, thus, had served the sentence of rigorous imprisonment in excess to that which could be awarded to him under Section 323, IPC (6 months R. I.) and had been awarded under Section 394, IPC (3 years R. I.) The appeal, under the circumstances, is decided as follows: 17. The conviction and sentence of appellant Badri under Section 302, IPC are maintained and confirmed. His conviction and sentence under Section 394, IPC are set aside and he is acquitted of this charge. 18. The conviction of appellant Katori under Section 302 read with Section 34, IPC is set aside and he is acquittted of this charge. He is convicted under Section 323 IPC and sentenced to undergo rigorous imprisonment for six months. His conviction and sentence under Section 394, IPC are maintained and confirmed. Both the sentences shall run concurrently. He, for the reasons given above, need not be taken into custody. His bail bonds are cancelled and sureties discharged. 19. Appellant Badri shall be taken into custody forthwith to serve out the sentence awarded to him under Section 302, IPC. His bail bonds are cancelled and sureties dis charged. 20. The material exhibits shall be dealt within accordance with the order of the learned lower Court. Appeal allowed. .