JUDGMENT S. K. Phaujdar, J. (1.) THE present two appeals are being taken up together and are being disposed of by this single judgment as the two appeals arose out of a single judgment in S.T. No. 243 of 1979 wherein all the four appellants stood convicted for an offence under Section 302, I.P.C. read with Section 34, I.P.C. and were sentenced to undergo imprisonment for life. On presentation of these two appeals, the appellants were released on bail. At the time of hearing, the learned counsel informed that the appellant Majid died during the pendency of the appeal. (2.) THE prosecution case in Crime No. 187, under Section 302, I.P.C., P. S. Jehanabad, district Fatehpur, was started on an F.I.R. lodged on 26.8.79 at 10.10 a.m. for an incident that had allegedly taken place on the same day at 7.30 a.m. THE report was made by Raj Bahadur Singh wherein all the four appellants were named. It was the prosecution case in the F.I.R. that the complainant, his uncles-Raghubir and Harpal, and his cousin Chhatra Pal had gone together to their respective fields in village Sujawalpur for cutting fodder, and they were engaged in their work in nearby fields. At about 7.30 a.m., the appellants Ismail, Jibrael, Majid and Lajid came there. Ismail held a lathi, Jibrael had a gun, the other two were having tamanchas. They went near Raghubir Singh who was busy in his own field of urd and tilli for cutting fodder. Ismail exhorted others to kill Raghubir saying that this man was responsible for the killing of his brother and he should not be spared. On the shout of Ismail, Raghubir got up and tried to run away. Jibrael then shot him from his gun. Raghubir suffered an injury and raised a cry and ran away. Then Lajid and Majid opened fire on him from their tamanchas and Raghubir received injury and fell down. These two persons then came near him and shot him again from their tamanchas and Raghubir died on the spot. On the screams of Raghubir, the complainant, Harpal, Chhatra Pal and one Dayaram Teli, who were in neighbouring fields, shouted at the assailants who threatened them as well and in fear, the witnesses did not chase them further and the assailants fled away eastwards to their village Bhutaiya Khera. On the screams of Raghubir, the complainant, Harpal, Chhatra Pal and one Dayaram Teli, who were in neighbouring fields, shouted at the assailants who threatened them as well and in fear, the witnesses did not chase them further and the assailants fled away eastwards to their village Bhutaiya Khera. In the year 1959, Surat Singh, grandfather of the complainant, and Pratap Singh, uncle of the complainant, had a land dispute with Ismail and others and in an incident over that dispute, Surat Singh and Pratap Singh were killed. Two cross-cases were initiated against the two parties but both the cases ended in acquittal. A year ahead of the present incident, Ibrahim and Rafiq were killed in a police encounter and Ismail and others suspected that Raghubir (the present deceased) and others had got them killed. This was the motive for the present incident as indicated in the F.I.R. It was made by Raj Bahadur Singh and was written by Chhatra Pal Singh. During investigation, the police had come to the spot, and made seizure of bloodstained and standard earth and had also taken charge of hansiya and shoes and bloodstained towel. A fired cartridge was also recovered from the place of occurrence. A site plan was prepared on the basis of informations received from the witnesses. The dead body of Raghubir was sent for post-mortem examination. The dead body was received at the mortuary on 26.8.1979 at 11.30 p.m. the papers were received on the next day at 9 a.m. and post-mortem examination was held on 2.30 p.m. on 27.8.1979. Death, according to the doctor, had taken place about 1-1/2 days prior to such examination. Rigor mortis was present only in the lower limbs. There were two gunshot wounds of exit corresponding to the entry wound on the temporo-parietal region. This entry wound had blackening and tattooing around the point of entry. One gunshot entry wound was near the abdomen and the third entry was on the hip. These two injuries had no blackening. The hip injury had two corresponding exit wounds. A gunshot abrasion was also there on the hip. The stomach was found lacerated at places and was empty. The small intestine was found lacerated, faecal matter was there in the small intestine. Death was caused due to shock and haemorrhage caused by the injuries. These two injuries had no blackening. The hip injury had two corresponding exit wounds. A gunshot abrasion was also there on the hip. The stomach was found lacerated at places and was empty. The small intestine was found lacerated, faecal matter was there in the small intestine. Death was caused due to shock and haemorrhage caused by the injuries. (3.) ACCORDING to the F.I.R., four witnesses were there who had allegedly seen the incident. They were called during trial as P.Ws. 1 to 4. P.W. 1 Chhatrapal is a cousin of the complainant and a nephew of the deceased. He supported the incident to certain extent to say that on 26.8.1979 at about 7.30 a.m., he along with Harpal and Raj Bahadur and Daya Ram had been engaged in their fields for cutting fodder. Raghubir Singh was also engaged in his field in cutting fodder. Ismail came there with a lathi, Jibrael with a gun, and Lajid and Majid with tamanchas. This witness was at some distance. He did not hear if anything was spoken by them. He came near the field of Raghubir only on the sound of gun-shot. When he came near the spot, he kept himself concealed behind a tree due to fear. He heard two further sounds of gunshot. He did not see the actual firing. When the accused persons left the place, he went near Raghubir Singh and found him dead. On the field of Raghubir, at the time of shooting, only the four accused persons, who were all identified in Court, were present. This witness could not say as to which of the accused had used what weapon. He wrote out the F.I.R. at the field itself on the dictation of Raj Bahadur and the F.I.R. was proved by him. This witness was declared hostile and was permitted to be cross-examined by the prosecution. He was confronted with his statement under Section 161, Cr. P.C. and he denied to have made any statement that he had heard Ismail exhorting and had seen Jibrael, Lajid and Majid shooting at Raghubir. He had also denied to have made any statement regarding threats given out to him and others. This Chhatra Pal was aged about 20 years on the date of his examination (8.2.80). P.C. and he denied to have made any statement that he had heard Ismail exhorting and had seen Jibrael, Lajid and Majid shooting at Raghubir. He had also denied to have made any statement regarding threats given out to him and others. This Chhatra Pal was aged about 20 years on the date of his examination (8.2.80). It has been elicited in his cross-examination by defence that his grand-father and father were killed in an incident and Ismail and Jibrael were : tried as accused for that murder. He could not say if there had been a cross-case. His cross-examination further indicates that Harpal was about 10 to 15 steps away from him at the time of the incident and Raj Bahadur was 20 steps away. Daya Ram was in his land 15 to 20 steps from a garden which was about 100 steps from Raghubir's field. His cross-examination further indicates that when the assailants approached Raghubir, the witnesses Raj Bahadur, Harpal and Daya Ram had come within 10 to 12 steps from Raghubir. (4.) P.W. 2 is Harpal Singh. He supported the prosecution story as given in the F.I.R. The fields, where these persons had gone for cutting fodder, were in village Sujawalpur but were near the border of village Bhutaiya Khera. Harpal and Raghubir were at a northern field while Raj Bahadur, Chhatra Pal and Daya Ram were in a field west to that of Raghubir. He described how the accused persons came and how the incident started. According to him, the exhortation was given by Ismail and it was Jibrael who gave the first shot after Raghubir could proceed 4 to 6 steps in his bid to run away. Raghubir screamed and shrieked but went on running when Lajid and Majid shot at him and then Raghubir fell down. Then, Lajid shot near his ear from a close distance and Majid also fired for the second time. Raghubir, on receipt of these injuries, died at the spot. When this witness and others shouted at the assailants, they threatened them as well and fled away towards Bhutaiya Khera. He spoke about, the past incident of 1959 about killing of Surat Singh and Pratap Singh by Ismail and by the father of Lajid and Majid. Raghubir, on receipt of these injuries, died at the spot. When this witness and others shouted at the assailants, they threatened them as well and fled away towards Bhutaiya Khera. He spoke about, the past incident of 1959 about killing of Surat Singh and Pratap Singh by Ismail and by the father of Lajid and Majid. Even in the year before the incident, Ismail's brother, Ibrahim, was killed in a police encounter and Ismail suspected the hands of Raghubir Singh in this encounter. Cross-examination of Harpal Singh was made in details. It came out in the cross-examination that concerning the death of Pratap Singh and Surat Singh, a cross-case was started against Harpal also. Raghubir and Angad (father of the complainant) were also accused in the cross-case. Both the cases had ended in acquittal. According to this witness, Raghubir was killed at a place about 70 steps away from the western ridge of the field of this witness. His further cross-examination indicates that at the time of murder of Raghubir, this witness was in his own field which ways lying east of Raghubir's land. He further accepted that the places where he was sitting and where Raghubir was sitting were 70 steps apart. He claimed to have indicated the place where he was sitting but the site-plan does not locate this situation. He could not explain why the Investigating Officer had not shown the place from where he had seen the incident. He was confronted with his 161, Cr. P.C. statements. These statements could have been used for the purpose of contradicting this witness subject to the proof thereof through the Investigating Officer. But the investigation officer, however, was asked about three statements of this witness that he had seen the incident from an eastern field and that he had not stated that the deceased ran first towards the south and then turn towards west and that he had not state further that Lajid opened fire near the ear from a close distance. The witness may not, therefore, be contradicted by any other statement than these. It was taken from him in cross-examination that his term of taking water from the canal fell on Saturdays from 2 a.m. upto 6 a.m. However, they had not gone for taking water from the canal on the date of occurrence. The witness may not, therefore, be contradicted by any other statement than these. It was taken from him in cross-examination that his term of taking water from the canal fell on Saturdays from 2 a.m. upto 6 a.m. However, they had not gone for taking water from the canal on the date of occurrence. His character was sought to be impeached by showing his involvement in criminal cases and criminal acts which he denied. A suggestion was made to him that Raghubir Singh was killed in some dispute over taking water from the canal during night by some unknown person and only due to old enmities, the old enemies were involved. P.W. 3 is Daya Ram. He too was declared hostile. It has come in his evidence that on the date of incident at about 7.30 a.m. there was some firing but he did not see anything nor did he come to the place of firing. He went on cutting fodder from his own field. Only after about 1-1/2 years, he could know that Raghubir Singh had been killed. The prosecution asked him about his previous statement made before the police and he denied to have made any claim to have seen the firing. He admitted that Raghubir Singh's dead body was lying in his field of Tilli and Urd and this witness was 150 yards from that place towards north-west. He admitted that when he heard the sound of firing from tamanchas it was 7.30 in the morning. His cross-examination indicates that firing took place after 1-1/2 hours of his reaching his field. He usually went for cutting fodder early in the morning. He stated that the sun rose about 1-1/2 hours after his arrival. (5.) P.W. 4, Raj Bahadur Singh, is the complainant. He supported his version as given out in the F.I.R. According to him, after the first two fires and, before falling down, Raghubir could move to a distance of 2 to 3 steps. By the time witness Harpal, Chhatra Pal and Daya Ram reached the spot Raghubir was already dead. He is a young man aged about 25 to 26 years. He also spoke about the incident of 1959 and of the incident that took place a year ahead in which Ibrahim and Rafiq were killed in an encounter. By the time witness Harpal, Chhatra Pal and Daya Ram reached the spot Raghubir was already dead. He is a young man aged about 25 to 26 years. He also spoke about the incident of 1959 and of the incident that took place a year ahead in which Ibrahim and Rafiq were killed in an encounter. A line has come in his evidence that Ibrahim and Rafiq had no relationship with the accused persons. But it has further come that Ismail suspected that in this killing in the encounter-Raghubir had a hand. His cross-examination indicated that after the encounter and before the present incident the accused persons never quarrelled with them. It was suggested to him that he had falsely made out a case that Ismail and others were suspecting that Raghubir had a hand in the killing of Ibrahim and Rafiq. Cross-examination indicated that other persons had their lands near the land of Raghubir but there was an indication that at the time of incident these persons were not there in their fields. This witness indicated that when he returned from the police station Harpal, Chhatra Pal and Daya Ram were present at the spot and the Investigating Officer had also reached in the mean time. He had claimed that he reached the police station within 1-1/2 hours of the incident and immediately the report was lodged. (6.) P.W. 5, Devi Shanker, is a formal witness who had proved the chick report and certain general diaries. P.W. 7 is also a formal witness who had carried the dead body for post-mortem examination. P.W. 8 is Dr. B. K. Tripathi who held the post-mortem examination on the dead body of Raghubir. He described the injuries as indicated earlier in describing the post-mortem report. According to him, injury No. 1 (that is, near the ear) could have been caused from a maximum distance of four feet. The shot could have been fired even touching the ear. According to him, the papers concerning post-mortem reached him on 27.8.79 at about 9 a.m. although the deadbody reached the previous night at 11.30. He made it clear that the deadbody was received by the pharmacist and information thereof was sent to him during night. According to his statement, death must have occurred within 36 hours from the time of post-mortem examination and he admitted that death could have occurred at 1 a.m. on 26.8.79. He made it clear that the deadbody was received by the pharmacist and information thereof was sent to him during night. According to his statement, death must have occurred within 36 hours from the time of post-mortem examination and he admitted that death could have occurred at 1 a.m. on 26.8.79. His cross-examination indicates that all the bones of the skull were found fractured and the injuries were caused by gun. He admitted that the injuries could have also been caused by the butt of the gun or by a lathi. According to him, there were really three shots which had caused the injuries and the abrasion at the hip could have been made by some stray pellets from the shot which penetrated the hip. He admitted that the deceased had not taken meal within four to five hours from his death and had not eased himself. It was argued on behalf of the appellants that the motive was far-fetched. For an incident of 1959, the accused persons could not have sustained a grudge for 20 years to have avenged a case against them. It was contended that the recent incident of 1978 in which Ibrahim and Rafiq were killed could not have furnished any motive to kill Raghubir as, according to the complainant himself, these two persons were not related to Ismail and others. Learned A.G.A. drew our attention, however, to the statements of the accused persons wherein a clear admission is there that Ibrahim was the brother of Ismail. This question was put to the accused persons as in the F.I.R. and in the evidence of P.W. 2, it had come that Ibrahim was a brother of Ismail. The accused persons may not, therefore, slip away from this admission that the persons killed in police encounter were related to them and this gives strength to the theory of motive. A motive has been alleged and there is sufficient suggestion that the probability of motive in this case, otherwise in a case of murder where eye-witness are there, motive is not as much consequence. The eye-witnesses' account would have to be seen if the same could be relied on irrespective of the motive. As regards the injuries, it was contended that the F.I.R. and the description of the incident suggested five injuries, one by Jibrael and two each by Lajid and Majid. The eye-witnesses' account would have to be seen if the same could be relied on irrespective of the motive. As regards the injuries, it was contended that the F.I.R. and the description of the incident suggested five injuries, one by Jibrael and two each by Lajid and Majid. It was contended that the F.I.R. must have been lodged after the panchayatnama was prepared and the witnesses must have thought the exit wounds to be separate wounds. It was contended further that a story of fall was also suggested in the F.I.R., but the medical evidence does not support that story. The two witnesses who had spoken about the incident clearly stated that it was Jibrael whose gunshot had injured Raghubir. There were two fires from Lajid and Majid and when the injured still ran on, these two persons again opened fire on him. The learned A.G.A. submitted that the witnesses could speak about firing from the sound and the flash but it was absolutely difficult for them to fix if any fire really hit the victim or not. So far the first fire was concerned, it must have hit Raghubir as there was an allegation that Raghubir suffered an injury from it. The next two fires were made from some distance and it is difficult to say if both the fires had hit the victim or only one of them had injured him. This was also the argument so far the next two fires of Lajid and Majid are concerned. It has been stated that Lajid brought his weapon near the ear of the victim and shot him. Nothing has come on record as to wherefrom Majid had opened fire and if it had also hit the victim. Looking from the angle in which the learned A.G.A. proposes to explain the injuries, we find a corroboration from the medical evidence that the injuries were caused from three gunshots. It is the use of the gun and other action that makes a person liable to indicate his common intention and it is not always possible for any witness to fix with definiteness that it was the shot of any particular accused that had hit the victim, unless the result thereof is felt immediately. It was further argued that the doctor had accepted that the skull bones were fractured from a shot by a gun. It was further argued that the doctor had accepted that the skull bones were fractured from a shot by a gun. The doctor had used the term 'bandook' in Hindi and the defence proposes to say that the skull injury must have been from the gun of Jibrael even if the story be believed and if that be so, then the story of further running would become absurd and the story of close range firing of Majid and Lajid would also be improbable. In his post-mortem examination report and in his statement the doctor does not appear to have made any distinction between a tamancha and a gun ('bandook' in Hindi). All the injuries were described as gunshot injuries and the doctor stated that the injuries were possible from three gunshots. The use of the term 'bandook' to describe the weapon of fracturing the skull must have been made in general sense meaning a firearm and not in the specific sense of a "gun" in contrast to a "tamancha". The sequence of events suggests that the shot of Jibrael must have hit Raghubir on his hip as he was in the posture of running away and it was expected that he would have his back towards the assailants. When he falls down two more injuries are caused, one with the gun close to the ear and the other at the abdomen. One of these shots, the one at the abdomen, must be from the first set of fires from Majid and Lajid and the one near the ear must be a shot by Lajid from a close range. It would be a futile exercise to try to determine as to whose shot caused the injury at the abdomen, of Lajid or Majid, as both had fired and had repeated fires subsequently also, clearly indicating therein intention to kill. (7.) THE defence proposes to build up a case that the incident had occurred at about 1 a.m. on the night of 26.8.79 over some dispute regarding taking of water from the canal and tried to fix the time with reference to the faecal contents in the lower intestine. It was stated that had it been in the morning, Raghubir would have eased himself before going to the field for cutting fodder. It was stated that had it been in the morning, Raghubir would have eased himself before going to the field for cutting fodder. It was argued by the learned A.G.A. that cutting of fodder was almost a daily routine for the villagers and it was normally take over in the morning hours and, thereafter, people come back to their houses to get prepared for the day for other works. THE very presence of faecal matters leads to the only conclusion that food was taken more than 4 to 5 hours prior to death. Habits concerning personal hygiene differ from man to man and simply because Raghubir had not eased himself may not be a factor to indicate that his death must have occurred at 1 a.m. and not at 7.30 a.m. Barring a suggestion, there is no other material on record to infer that there had been any quarrel regarding taking water from the canal. (8.) IT was argued on behalf of the defence that there was no indication in the site-plan wherefrom the assailants had opened fire and if any fodder already cut was seen or recovered by the Investigating Officer. IT would have certainly been better if the Investigating Officer would have located these places and would have seized the cut fodder from the fields but the failure on the part of the Investigating Officer to make certain investigations may not be a factor of such importance which may take away the credibility of ocular testimony if at all otherwise believable. Regarding eye-witness account, it has to be seen that all the four witnesses were named in the F.I.R. All the four were brought at the trial and two of them did not support the prosecution case in toto. So far Harpal and Raj Bahadur are concerned, they had supported the F.I.R. story and had attributed the roles to the assailants as were given in the F.I.R. Regarding Harpal, as already indicated, there was cross-examination touching his previous statement, but all these previous statements were not brought on record through the Investigating Officer. The only statements that the investigating officer has proved to have been made by Harpal were concerning the description of the field, its position and the statement that Lajid had opened fire touching the ear. The only statements that the investigating officer has proved to have been made by Harpal were concerning the description of the field, its position and the statement that Lajid had opened fire touching the ear. Even if this statement is taken to be an exaggeration, there is a consistent statement that Lajid had fired for the second time from a close range. Regarding Raj Bahadur, Investigating Officer had stated that Raj Bahadur had not told him as to which shot had hit Raghubir and which did not. But there was a statement that Jibrael had shot at him and Raghubir suffered an injury and fell down. This suggests that Jibrael's shot must have hit Raghubir. The witness did not state before the police that Raghubir had run towards the west and then to south. The very nature of the injuries on the hip and again on the abdomen suggests that firing was done in two postures and the theory of running for some time may not be brushed aside. (9.) IT is true that two witnesses had turned hostile. For Chhatrapal, he was hostile only to the extent of not stating about the actual shooting. He supports the prosecution story in all other details. The F.I.R. suggested the name of Chhatrapal as an eye-witness but what Chhatrapal had seen would be known to him only, and he had stated about Raghubir's going to the land, presence of the eye-witnesses nearby, presence of all the accused persons with weapons, sound of opening fire and of injuries on Raghubir and his death. He was sure that at that point of time on the land of Raghubir, barring these accused persons, none else was present. Daya Ram, the other hostile eye-witness, does not give any detail of the incident but it is clear from his evidence that firing incident had taken place in the morning at 7.30 and Raghubir died as a result thereof. That he was concealing truth is evident from his statement. He claims to have continued with his work even after hearing the sound of firing. This was improbable. A man hearing the sound of gun-fire either come to the spot and if he was scared, would run away. He could not remain working in his field, absolutely unpurturbed by what was happening in a field 150 yards away. He claims to have continued with his work even after hearing the sound of firing. This was improbable. A man hearing the sound of gun-fire either come to the spot and if he was scared, would run away. He could not remain working in his field, absolutely unpurturbed by what was happening in a field 150 yards away. (10.) IT is not the law that simply because a witness has been declared hostile, his total evidence is to be discarded. In criminal trials, it is the duty of the Court to separate the grain from chaff and it is equally necessary to analyse the evidence of even a hostile witness like any other witness to see if any truth comes out from his evidence. If truth and falsehood are mixed up in such a manner that the same could not be separated, certainly the whole evidence is to be discarded. In the instant case, the two hostile witnesses have fixed the place of occurrence and the time of occurrence and had also stated about the death of Raghubir in the incident. They had tried to keep themselves aloof from stating further details but atleast these facts could be collected from their evidence to seek corroboration of the other two eye-witnesses. From the evidence of Chhatrapal we get something more. He identified the accused persons and their weapons. He simply failed to narrate about the actual shooting. That evidence had come from P.Ws. 2 and 4 and Chhatrapal also substantially corroborates the prosecution story. The learned trial judge in his judgment has dealt all the evidence and has looked to the problem of accepting the evidence of a hostile witness. It must be held, as per discussions made above, that the learned trial Judge had rightly come to the conclusion of guilt of the accused persons in murdering Raghubir in furtherance of their common intention and sharing of common intention has been proved by exhortation, holding of arms and use thereof. The order of conviction and sentence may not, therefore, be interfered with. (11.) IN the result, the appeals stand dismissed. The appellants are on bail. They are to surrender within 15 days from today, failing which the concerned Court shall issue all processes against them to compel their attendance to serve out the sentence.