N. S. GUPTA, J. Seven accused per sons, namely, Puttu (A-l), Har Pal (A-2), Maiku (A-3), Budhi (A-4), Kalktor (A-5), Raj Pal (A-6) and Bankey (A-7) who were convicted under Sees. 302/149,1. P. C. and accused appellants Puttu, Har Pal, Maiku, Kalktor and Rajpal were convicted under Section 148 and Budhi and Bankey under Sec. 147,1. P. C. and were sentenced to un dergo life imprisonment under the first count and two years R. I. and one years R. I. respectively under the second count, as per judgment and order dated 31st March, 1980 passed by Sri Daya Shankar, the then VII Additional Sessions Judge, Shahjahanpur, have come up in appeal before this Court. 2. The prosecution story, briefly stated is as follows: Accused appellants Puttu and Harpal are real brothers. Similarly Maiku, Budhi and Kalktor are real brothers. These five accused appellants were resi dent of village Barai hamlet of village Bans Khera P. S, Paraur District Shahjahanpur. Accused appellants Rajpal and Bankey were related as uncle and nephew respec tively. They belonged to village Bhuria P. S. Paraur District Shahjahanpur. Com plainant Bahar Singh P. W. 1, Dharma Singh P. W. 2 and the deceased Nawab were resident of village Bhuria P. S. Paraur Dis trict Shahjahanpur. Natthu P. W. 3 was resi dent of a nearby village Phena. They had their cultivation in village Bhuria. The prosecution claimed that the fields of vil lage Bhuria were situated towards north and south of river Bhagel. To the south of this river beyond the field area, there was the Abadi of village Bhuria. Towards north of this river Bhagel beyond the fields, there was the Abadi of village Bans Khera. To the north of the river Bhagel, there was belt of land over which Patel was standing in several furlongs on the northern bank of the river. Just towards north of this Patel, there was filed of the complainant Bahar Singh P. W. 1 and his brother Nawab deceased. The fields of Dharma Singh P. W. 2 lay nearby the fields of the complainant. 3. The incident of this case took place on 17-10-78 at about 9. a. m. in the fields of village Bhuria. The prosecution claimed that the complainant Bahar Singh P. W. 1 and his brother Nawab deceased were ploughing their fields. The fields of Dharma Singh P. W. 2 lay nearby the fields of the complainant. 3. The incident of this case took place on 17-10-78 at about 9. a. m. in the fields of village Bhuria. The prosecution claimed that the complainant Bahar Singh P. W. 1 and his brother Nawab deceased were ploughing their fields. P. W. 2 Dhartna Singh was also ploughing his own field and at some distance from his field Nathu P. W. 3 was ploughing his own fields. At about 9 a. m. , the accused appellants Har Pal, Maiku and Raj Pal carrying Bhala in their hands, accused Kalktor carrying a Kanta and accused Budhi and Bankey carrying lathis suddenly emerged from the Patel crop standing near the Nawabs field. They all challenged Nawab. Nawab left his plough and ran towards west. He reached near the field of Pyare, accused appellant Puttu emerged from the belt of Patel with a gun in his hand and he opened fire on Nawab and caused injuries in the left leg with the result that Nawab fell down, in the field of Pyare. The remaining appellants, namely, Har Pa4, Maiku, Budhi Kalktor, Rajpal and Bankey assaulted the deceased by means of their respective weapons, namely, Bhala, Kama, and Lathis and in flicted a number of injuries on the person of the deceased. When the complainant Bahar Singh P. W. 1, his uncle Jaswant, P. W. 2 Dharma Singh and Natthu P. W. 3 cried and ran for the rescue of the deceased, the accused appellants ran away towards the Abadi of the village. The complainants brother Mahendra brought a bullock-cart on the spot and then putting the injured Nawab in the said cart, the complainant and his brother went to the police station Paraur which lay at a distance of about 6 miles and lodged an oral report there at about 1. 20 p. m. On the basis of the first information report, case crime No. 142 under Sees. 147/148/307, I. P. C. was registered against the accused appellants. It appears that Nawab succumbed to his injuries after about 20 minutes when he was being taken to the hospital right in the campus of the police station. The case against the accused appellant was there after converted into one punishable under Sees. 147/148/307, I. P. C. was registered against the accused appellants. It appears that Nawab succumbed to his injuries after about 20 minutes when he was being taken to the hospital right in the campus of the police station. The case against the accused appellant was there after converted into one punishable under Sees. 147/148/302/149, I. P. C. by head con stable Mahendra Nath P. W 5 as per G. D. report Ex. Ka-4. 4. S. I. Shyam Lal P. W. 6, who was then working as Sub-Inspector of Police imme diately took up the investigation of the case in his hand. He prepared inquest report in respect of the dead body of the deceased right at the police station and sent the dead body of the deceased after preparing the necessary papers through constable Mohd. Yamin and village Chaukidar to the mortuary at Shahjahan- pur, which was situate at a distance of about 65 KMS from the police station. S. I. Shyam Lal P. W 6 thereafter recorded the statement of the complainant. He proceeded to the scene of occurrence in village Bhura and tried to search out the accused appellants but they were not avail able. On the next day, he inspected the scene of occurrence and prepared site plan Ex. Ka-10. He recovered blood stained earth and simple earth from the scene of occurrence and prepared recover memo Ex. Ka-11 about the same. Further inves tigation into the matter was taken up by S. I. Roop Singh P. W. 7, who recorded the statement of Dharma Singh P. W. 2 on 20-10-1978 and after surrender of the accused appellants before the Court and complet ing his investigation, he submitted charge-sheet against the accused appel lants. After committal of the case, the Court of Sessions, the then IIIrd Addition al District and Sessions Judge framed charges under Sees. , 148/302/149, I. P. C. as against the accused appellants Puttu, Har Pal, Maiku, Rajpal and Kalktor. The charge under Sees. , 147/302/149, I. P. C. were framed against Budhi and Bankey. Accused appellants pleaded not guilty to the charges framed against them. They denied their participation in the occur rence in question and maintained that they were falsely implicated into this case due to enmity. 5. Puttu appellant further main tained that Dharma Singh P. W. 2 was the cousin brother of complainant Bahar Singh P. W. 1. Accused appellants pleaded not guilty to the charges framed against them. They denied their participation in the occur rence in question and maintained that they were falsely implicated into this case due to enmity. 5. Puttu appellant further main tained that Dharma Singh P. W. 2 was the cousin brother of complainant Bahar Singh P. W. 1. He stated that Jaswant Singh and the complainant Bahar Singh P. W. 1 had assaulted him, about which he had lodged a report against Jaswant Singh, in which Jaswant Singh was sentenced. He pleaded that Natthu P. W. 3 was the son-in-lawof Jaswant Singh. 6. Har Pal accused appellants pleaded to have been falsely implicated into this case, due to enmity stated by his brother. 7. Maiku pleaded that he had given evidence in a case of marpit instituted by some Brahmins against Natthu, brother of Dharma Singh P. W. 2 and, therefore, he was falsely implicated into this case on that score. 8. Accused appellant Budhi and Kalktor pleaded that they have been false ly implicated into this case due to enmity of their elder brother Maiku. 9. Accused appellant Bankey stated that the deceased Nawab was on visiting terms at his house accused appellants Puttu and Maiku had murdered his brother Subedar and in that murder case, Nawab had given evidence from his side. He stated that in the election of Gram Pradhan, Awatar, brother of Dharma Singh P. W. 2 wa,s a candidate. He was opposed by him. He was defeated in the said election. He further stated that Puttu ac cused appellant was his dead enemy. He, therefore, could not have participated in the occurrence in question alongwith Puttu. 10. Rajpal accused appellant stated that he was falsely implicated in this case due to the enmity of his uncle Bankey Lal. Accused appellant examined one Mittan Singh son of Goverdhan, resident of vil lage, Medna P. S. Paraur District Shah-jahanpur. He stated that he was prosecuted in connection with the murder case of one Sunder of village Medna about 8-9 years back. There were 15 accused per sons in the said case. He stated that Natthu son of Ram Dayal (P. W. 3) and Badshah son of Jaswatu Singh resident of village Bhuria, hamlet of Medna, were also ac cused in the said murder case. There were 15 accused per sons in the said case. He stated that Natthu son of Ram Dayal (P. W. 3) and Badshah son of Jaswatu Singh resident of village Bhuria, hamlet of Medna, were also ac cused in the said murder case. Natthu was the brother-in-law (Bahnoi) of this Bad-shah son of Jaswant Singh, uncle of the complainant. He further stated that Jhanku and Nanku were related as cousin brothers of the complainants father. He stated that Puttu had no son. He further stated that Amar Singh and Nar Singh were sons of Puttu, who were then aged about 16 and 12 years respectively. He further stated that Puttu had no son by the name of Ram Singh. 11. The prosecution in support of its case had examined 7 witnesses, out of whom Bahar Singh P. W. 1, Dharma Singh P. W. 2 and Natthu P. W. 3 were the wit nesses of fact, who have given an eye-wit ness account of the occurrence in ques tion. 12. P. W. 4 Dr. Satya Pal was working as Surgeon attached to the District Hospital, Shahjahanpur on 19- 10-78, who con ducted an autopsy on the dead body of the deceased on 19-10-1978 at 3. 30 p. m. and found the position as under: 13. The deceased was aged about 40 years. About two days had passed his death. His body was average built. Rigor mortis had passed off in all 4 extremities. The abdomen was distended, green dis colouration was present all over body. Bleeding was present on the scortum and penis distended. Dr. Satya Pal found the following anti-mortem injuries on the per son of the deceased: (1) Incised wound 7 cm x 1. 5 cm x bone-bone, left side forehead 3 cm above left eye brow. (2) Lacerated wound 7 cm x 2 cm x bone mid line back of scalp, 2 on above occipttal protuserance. (3) Lacerated wound 3 cm x 0. 8 cm x bone deep left side scalp, 11 cm above left ear. (4) Lacerated wound 2 cm x 0. 5 cm x bone deep on scalp, 1 cm above injury No. 3, (5) Incised wound 3 cm x 1 cm x through and through, 8 cm on pinna of left ear. (6) Penetrating wound 2 cm x 0. 8 cm x muscle (3 cm) backside of upper left arm. (4) Lacerated wound 2 cm x 0. 5 cm x bone deep on scalp, 1 cm above injury No. 3, (5) Incised wound 3 cm x 1 cm x through and through, 8 cm on pinna of left ear. (6) Penetrating wound 2 cm x 0. 8 cm x muscle (3 cm) backside of upper left arm. (7) Contusion 7 cm x 7 cm back of right wrist and hand proximal part. (8) Contusion 8 cm x 4 cm back side of upper right forearm. (9) One gun shot wound of entry 3 cm x 3 cm x through and through on middle left leg communicated with one gun shot wound of exit 3. 8 cm diameter, on back part wound middle left leg, direction backward and downward exit wound 3 cm below the level of entry. No black ening, tatooing and charring underneath com municated fracture inside of wound present, and tissue vessels ruptured (perforated ). (10) Incised wound 2 cm x 0. 8 cm x bone deep from lateral aspect of liner third of left leg. (11) Penetrating wound 1. 5 cm x 0. 8 cm x muscle (2cm from middle side on right leg ). (12) Two penetrating wounds each 1. 2cm x 0. 6 cm x muscle 1. 8 cm, 4 cm on lateral aspect on lower third right leg. (13) Contusion 7 cm x 2 cm back left side chest, below scapula. 14. On internal examination, the doctor found that haemotoma was present in the scalp. The stomach contained digested semi-digested food. The small in testine contained food and large intestine contained faecal matter. The doctor opined that the gun shot injury being in jury No. 9 was caused by means of gun shot fire from a distance of more than 4 feet. He maintained that the incised wounds could have been caused by means of weapons like Kama and penetrating wounds could have been caused by means of some pointed weapon and contusion could have been caused by means of Lathi. He opined that the deceased had died due to shock and haemorrhage, which resulted from the aforesaid anti-mortem injuries. 15. P. W. 5 H. C. Mahendra Singh proved Chik report and G. D. report. P. W. 6 S. I. Shyam Lal and P. W. 7 S. I. Roop Singh were two investigating officers, who inves tigated into the matter. He opined that the deceased had died due to shock and haemorrhage, which resulted from the aforesaid anti-mortem injuries. 15. P. W. 5 H. C. Mahendra Singh proved Chik report and G. D. report. P. W. 6 S. I. Shyam Lal and P. W. 7 S. I. Roop Singh were two investigating officers, who inves tigated into the matter. We have heard the learned counsel for the parties and have perused the record of the case. Findings with regard to accused ap pellants Puttu, Har Pal, Maiku, Budhi and Kalktor (A-l to A-5 ). 16. It is clearly proved by the medical evidence of Dr. Satya Pal P. W. 4 that at the time of the post- mortem examination of the deceased, he found as many as 3 incised wounds, 4 penetrating wounds, 2 lacerated wounds and 4 contusions besides one gun shot wound of entry as also one gun shot wound of exit on the person of the deceased at the time of the post-mortem examination on 19-10-1978 at 3. 30 p. m. He found haemotoma inside the skull and had found that the deceased had died because of these anti-mortem injuries. During the course of his cross- examination, he clearly opined that the deceased could have died prior 1- 1/2 days to 2-1/2 days of his post mortem-examination. The clear case of the prosecution as stated by Bahar Singh P. W. 1, the real brother of the complainant, an eye-witness of the occurrence, is that the deceased was assaulted by means of gun by Puttu, Bhala by Har Pal and Maiku, Kanta by Kalktor and Buddi by Lathi on 17-10-1978 at 9 a. m. The circumstance that gun shot wound of entry and exit as also the incised and penetrating wounds besides lacerated wounds and contusions which were numbering about 15 were found on the person of the deceased at the time of his post- mortem examination fully prove that the deceased had died due to shock and haemorrhage which had resulted from the aforesaid anti-mortem injuries. 17. Sri P. N. Misra, learned Senior Counsel for the accused appellants has vehemently argued before us that Dr. Satya Pal failed to state that the injuries found on the person of the deceased were sufficient in the ordinary course of nature to cause death and therefore, on the basis of the evidence of Dr. 17. Sri P. N. Misra, learned Senior Counsel for the accused appellants has vehemently argued before us that Dr. Satya Pal failed to state that the injuries found on the person of the deceased were sufficient in the ordinary course of nature to cause death and therefore, on the basis of the evidence of Dr. Satya Pal, it cannot be concluded that the deceased was inten tionally done to death by means of these injuries by the assailants. True it is, that the doctor failed to state that the injuries found on the person of the deceased were sufficient in the ordinary course of nature to cause death, yet the fact remains that the deceased was taken to police station in a bullock-cart and had reached there at about 1. 20 p. m. and had succumbed to his injuries within 20 minutes of his reaching there right within the campus of the police station. That being so and keeping in view the number, nature, dimensions and seat of the injuries as also the weapon with which these injuries were caused, we are of the opinion that it cannot be said that the injuries found on the person of the deceased were not sufficient in the ordi nary course of nature to cause death. We hold that notwithstanding the omission on the part of the doctor to state this relevant fact, the injuries found on the person of the deceased as anti-mortem were sufficient in the ordinary course of nature to cause death and that from these injuries, it has to be inferred that these injuries were caused to the deceased by a number of person, who had formed an unlawful assembly with the common object of causing death of the deceased and who, in prosecution of their common object of the said unlawful as sembly, had armed themselves with deadly weapons like gun, Bhala, Kanta as also blunt weapon like Lathi. 18. Now the pertinent question which arises for our consideration is to see as to j who were the assailants responsible for I causing the said assault on the deceased. 19. Bahar Singh P. W. 1 stated in his statement on oath before the Court below that accused Puttu and Harpal were real brothers. Similarly accused appellants Maiku and Budhi and Kalktor were real brothers. 19. Bahar Singh P. W. 1 stated in his statement on oath before the Court below that accused Puttu and Harpal were real brothers. Similarly accused appellants Maiku and Budhi and Kalktor were real brothers. They were all resident of village Baral Gaon, which lay at a distance of about 3 Khuntis (3 furlongs) from his vil lage. He stated that about 15-16 years back, the deceased Nawab had assaulted the accused appellant Puttu and his father Ishwari and that in that connection Nawab deceased was imprisoned for two years. R. I. Since thereafter theaccused appellant Puttu was bearing enmity with the deceased. He further stated that a day prior to the date of the occurrence, the cattle of Puttu had entered into the fields of his cousin brother Badshah, and had caused damage to the sugarcane crop standing in the said field. At that time, son of Puttu and nephew of Maiku were there with the cat tle. The deceased had assaulted both of them. It has also come in the evidence of this witness that Maiku, Budhi and Kalktor are cousin brothers of Puttu and. Harpal. Thus all these five accused appel lants were closely related with each other as kith and kins. The circumstance that the deceased Nawab had earlier assaulted the accused appellant Puttu and his father Ishwari, of course about 15-16years back, and further that he had again assaulted the son of Puttu and nephew of Maiku just a day before the occurrence of this case, fully go to show that five accused appellants were bearing a grudge against the deceased and were out to take revenge of their assault. It appears that when the deceased Nawab again showed his highhandedness by as saulting the son of Puttu and nephew of Maiku just a day before the occurrence of this case, all these accused appellants, namely, Puttu, Har Pal, Maiku, Budhi and Kalktor, hatched a plan to do away with the deceased Nawab. They formed an unlawful assembly with the common object of com mitting murder of the deceased on the date, time and place of the occurrence and did commit murder of Nawab by means of their respective weapons. 20. They formed an unlawful assembly with the common object of com mitting murder of the deceased on the date, time and place of the occurrence and did commit murder of Nawab by means of their respective weapons. 20. According to the eye-witness ac count given by Bahar Singh P. W. 1, he and his brother Nawab deceased had gone to their fields at the time of sun rise for ploughing the fields and for preparing the same for sowing Rabi crop. Their fields were measuring about 18 Bighas. Itwas the month of the Kartik (October) when the farmers generally plough their fields and make preparations for sowing Rabi crop. So there was nothing unnatural on the part of the complainant and his brother deceased Nawab to have gone to their fields for ploughing the same. Bahar Singh P. W. 1 further stated that on reaching over the fields, Nawab started ploughing and he started digging the corners of the fields which are generally not covered by the plough. He stated that at about 9 a. m. the accused appellants all of a sudden emerged from the Patel, which was sufficiently high. He stated that the accused appellants challenged the deceased, when the deceased was ploughing his field from south to north. As soon as the accused appellants challenged him, the deceased tried to run towards west and reached in the nearby field of Pyare. There was patel towards west of the said field, from where the ac cused appellant Puttu emerged out along with gun. He opened fire upon the deceased causing injuries in his leg. The deceased fell down and thereafter the other accused appellants had assaulted him by means of Bhala, Kanta, and Lathis. According to the statement of this witness, accused appellants Har Pal Maiku had Bhala, Kalktor had Kanta while Budhi was armed with Lathi. Seeing this assault, the complainant cried and had attracted jas-want Singh and Dharma Singh (P. W. 2) as also Natthu (P. W. 3 ). The accused appel lants thereafter ran away. He thereafter took the injured Nawab in a bullock-cart to Police Station and lodged the report Ex. Ka-4. The deceased succumbed to his in juries after about 20 minutes right in the campus of the police station. He stated that the blood had fallen in the field of Pyare. 21. The accused appel lants thereafter ran away. He thereafter took the injured Nawab in a bullock-cart to Police Station and lodged the report Ex. Ka-4. The deceased succumbed to his in juries after about 20 minutes right in the campus of the police station. He stated that the blood had fallen in the field of Pyare. 21. It was averred by S. I. Shayam Lal P. W. 6 that when he visited the spot on 18-10-78, the found the blood lying in the field of Pyare within a radious of 1-1/2 feet. He has also stated that river Bagel flows from east to west in village Bhuria and that on both sides of the said river, there were Patels this Patel goes upto the Abadi of the village. 22. P. W. 2 Dharma Singh has fully corroborated the statement of Bahar Singh P. W. 1 on the point that at the time of the occurrence which took place at about 9 a. m. he was present at his field which lay on the north eastern side of the fields of the deceased. He stated to have seen the deceased running from east to west. He was being followed by the accused appel lants, Kalktor, Maiku, Budhi, Rajpal, Har Pal and Bankey. He stated that Raj Pal, Har Pal and Bankey were armed with spears, Kalktor was armed with a Kanta Budhi and Bankey were armed with Lathis. He stated that when the deceased reached in the field of Pyare, accused ap pellant Puttu emerged out of Patel and opened fire upon him by means of gun, with the result that Nawab had fallen down and thereafter all the accused appellants had assaulted the deceased by means of Bhala, Kanta and Lathis. The cir cumstance that this witness had got his own fields quite near the field of the deceased fully proves that he too must have been present over his field at the time of the oc urrence. He was thus a natural and probable witness of the occurrence and appear to us to be a reliable witness. 23. Natthu P. W. 3 has stated that he has got his fields at a distance of about 70-80 paces from the fields of the com plainant. He too has fully supported the prosecution story on the point that he had seen, the occurrence with his own eyes. 23. Natthu P. W. 3 has stated that he has got his fields at a distance of about 70-80 paces from the fields of the com plainant. He too has fully supported the prosecution story on the point that he had seen, the occurrence with his own eyes. While giving the details of the incident, he stated that he had seen the deceased run ning from east to west. He was being fol lowed by the accused appellants Har Pal, Maiku budhi, Kalktor, Rajpal and Bankey. Har Pal, Rajpal and Maiku were armed with Bhala, Kalklor was armed with Kanta, Budhi and Bankey were armed with Lathis. He stated that the accused appel lant Puttu came out from the nearby Patel and opened fire upon the deceased. The deceased fell down and then the accused appellants assaulted him by means of Bhala, Kanta and Lathis. 24. Although it was suggested on be half of the defence that all these three witnesses were not present at the scene of occurrence at the time of the occurrence, yet the fact remains that the time of the occurrence being month of Kartik, a season during which the villagers make preparations for sowing Rabi crop in their respective fields and all these three per sons having their fields in the vicinity of the place of occurrence, their presence at the scene of occurrence was quite natural and probable one and was rightly believed by the Court below. 25. The medical evidence of Dr. Satya Pal and the injuries caused by means of gun shot, Bhala, spear/kanta and Lathis found on the person of the deceased, lends full credence to the ocular evidence of these three witnesses of fact. 25. The medical evidence of Dr. Satya Pal and the injuries caused by means of gun shot, Bhala, spear/kanta and Lathis found on the person of the deceased, lends full credence to the ocular evidence of these three witnesses of fact. The minor omis sions and contradictions in the statement of these witnesses as for example that Dharma Singh stated that when Mahendra and Bahar Singh had put the deceased into cart, their clothes were stained with blood and that this fact was not stated by Bahar Singh P. W. 1 and further that Bahar Singh was digging the corners of the fields and that he stated before the investigating of ficer that he was ploughing his fields and further that Natthu stated before the In vestigating Officer that he was going to take fodder for his cattle at the time of the occurrence and was not actually cutting fodder from his field, are too minor con tradictions to be appreciated for discard ing the presence of these witnesses on the spot. 26. Sri P. N. Misra, learned Senior Ad vocate, for the accused appellants has ar gued before us that motive of 15-16 years back when the deceased had assaulted the accused appellant Puttu and his father Ish-wari was too old a motive which could have actuated the accused appellants to form an unlawful assembly with the common ob ject of murder of the deceased muchless actually to commit murder of the deceased. We are unable to agree. Besides the said motive, Bahar Singh P. W. 1 has stated an immediate motive of assault being made by the deceased upon the son of Puttu and nephew of the accused appel lant Maiku just a day before the occur rence of this case. Thus it appears to us that an old enmity of the assault by the deceased upon Puttu and his father Ish-wari was aggravated by the immediate as sault by the deceased upon the son of Puttu and nephew of Maiku, which assault is said to have been committed by the deceased just a day earlier to the date of the incident of this case. It, therefore, appears to us that an old motive of assault on Puttu and his father coupled with the immediate motive of the assault on the son of Puttu and nephew of Maiku actuated to do away with the deceased and thus the accused appel lants Puttu, Har Pal, Maiku, Budhi and Kalktor who were closely related to each other appear to have formed an unlawful assembly with the common object of com mitting the murder of the deceased Nawab on 17th October, 1978 at about 9 a. m. in village Bhuria P. S. Paraur District Shah-jahanpur and that to accomplish the com mon object of the said assembly which was to commit the murder of the deceased, the accused appellants Puttu armed himself with gun, Har Pal and Maiku armed them selves with Bhala, Budhi with Lathi and Kalktor with Kama and that they did as sault the deceased by means of their respective weapons and caused a number of injuries to the deceased Nawab because of which the deceased had ultimately died after about 4 hours of the occurrence. 27. The circumstance that soon after the occurrence Bahar Singh P. W. 1 and his brother Mahendra took the deceased to police station, which was situated at a dis tance of about 6 miles and which was inter vened by two rivers and reached there at about 1. 20 p. m. and lodged a report there making specific allegations of forming un lawful assembly and assault by means of their respective weapons as discussed above against the accused appellants fully corroborates the prosecution version, the promptness with whichthe F. I. R. was lodged, deserves all credence with regard to the guilt of the aforesaid accused appel lants. 28. It was further argued by Sri P. N. Misra learned counsel for the defence that the dead body of the deceased was despatched from Police Station on 17-10-78 but it has reached mortuary on 19-10-78 and, therefore, undue delay in the receipt of the dead body at mortuary casts reflection upon the bona fides of the prosecution case. We are unable to agree. The record of the case reveals that the distance of the mortuary from the police station was about 65 kms. We are unable to agree. The record of the case reveals that the distance of the mortuary from the police station was about 65 kms. The dead body having been despatched from the police station on the evening of 17-10-78 should have taken sufficient time to reach upto the District Head Quarters and mortuary. True it is that the prosecution failed to examine constable, who had taken the dead body of the deceased for posi-mor-tem examination, in order to explain the delay which was caused in reaching of the dead body, yet the fact remains that when according to the medical evidence, the deceased had died about 2 days before the date of post-mortem examination which was admittedly conducted on 19-10-78 at 3. 30 p. m. the fact remains that he deceased had died on 17-10-78 some time in the afternoon. 29. The mere fact that P. W. 1 Bahar Singh, P. W. 2 Dharama Singh and P. W. 3 Natthu Singh were distantly related with each other does not dis-credit their solemn testimony which otherwise ap pears to be probable and truthful one. 30. That the finding of fact recorded by the Court below with regard to these five accused appellants namely, Puttu, Har Pal, Maiku, and Kalktor under Sections 148/302/149,i. P. C. and accused appellant Budhi under Sees. 147/302/149,i. P. C. ap pears to be quite correct. It is accordingly affirmed and their sentences under the said sections is sustained and their appeal fails. RAJ PAL UNDER SEC. 148/302/149 I. P. C. AND BANKEY UNDER SEC. 147/302/149, I. P. C. (A-6 anda-7 ). 31. According to the statement of the complainant Bahar Singh P. W. 1, Bankey and Raj pal are related with each other as uncle and nephew respectively. It was ad mitted by this witness Bahar Singh P. W. 1 that in the case in which Nawab was prosecuted about 15-16 years back for as saulting Puttu, Ishwari, and Phaujdar, ac cused appellant Bankey and his brother Subedar were also arrayed as accused per sons. Subedar was acquitted in the said case whereas Bankey and Nawab were con victed. The accused appellant Puttu, who was pivot of the occurrence of the case being holder of the gun and having used his gun for opening fire upon the deceased, had appeared as a prosecution witness in the said case as against Nawab and Bankey. Subedar was acquitted in the said case whereas Bankey and Nawab were con victed. The accused appellant Puttu, who was pivot of the occurrence of the case being holder of the gun and having used his gun for opening fire upon the deceased, had appeared as a prosecution witness in the said case as against Nawab and Bankey. Subsequently Subedar, brother of Bankey, was also murdered and the accused appel lants Puttu, Maiku and their father Ishwari etc, were prosecuted in the said case. This Subedar was father of the accused Raj pal. The report about that case was made by the deceased Nawab against Puttu, Maiku and Ishwari, in which the deceased Nawab had appeared as a prosecution witness. Al though the said case had ended into acquit tal, yet the fact remains that Subedar deceased of the said case being father of the accused Raj pal and brother of accused appellant Bankey and the deceased being the complainant of the said case, it is not believable that in the incident of the present case, Raj Pal and Bankey should have joined hands with other accused ap pellants, namely, Puttu, Har Pal, Maiku, Budhi and Kalktor. It was rightly stated by the accused appellant Bankey that Puttu etc. were his dead enemies. 32. The circumstance that Subedar, brother of Bankey and father of Rajpal was said to have been murdered by Puttu, Maiku and their father Ishwari, for which they were prosecuted and in which case the deceased Nawab and given evidence as complainant, it becomes obvious that these two accused persons had their close ness with the deceased and not with the accused appellants. It was admitted by Bahar Singh P. W. 1 that about a year and half before the date of his giving evidence before the Court below, that is, about 6 months before the date of the incident in question, accused Kalktor was seen by the deceased with the daughter of Bankey. He stated that the girl of Bankey was there with the accused appellant Kalktor with her own consent but Bankey had said in the village that Nawab has tried to defame him. He stated that there was no scuffle on that score in between Bankey and Kalktor. He stated that the girl of Bankey was there with the accused appellant Kalktor with her own consent but Bankey had said in the village that Nawab has tried to defame him. He stated that there was no scuffle on that score in between Bankey and Kalktor. It is probable for us to believe that the deceased Nawab being an elderly member of the village and a f-iend of Bankey did not appreciate the association of Bankeys daughter with accused appellant Kalktor and he complained about that matter to Bankey which complaint may not have been appreciated by Bankey, since Bankey was a consenting party to the association of his daughter. It is probable for us to believe that either on this score or some other score, the complainant may have not been feeling happy with Rajpal and Bankey. When the present incident had happened in which the deceased Nawab was done to death, the complainant in his wisdom may have thought in terms of falsely implicat ing Bankey and his nephew Rajpal into this case. 33. We, therefore, hold that the im plication of accused appellants Raj Pal and Bankey in the present case, was false. We accordingly do not find it proper to uphold the finding of built relating to these two accused appellants, namely, Rajpal and Bankey as recorded by the Court below and set aside the same, and discard the evidence of Bahar Singh P. W. 1, Dharma Singh P. W. 2 and Natthu P. W. 3 with regard to the participation of these two accused appellants in the occurrence of this case on the principle that it is the duty of the Court to shift chaff from the grain and truth from the falsehood. Thus the conviction and sentence of these two accused appellants, namely, Rajpal and Bankey under Sees. 148/302/149 I. P. C. and Sees. 147/302/149 I. P. C. respectively an accordingly set aside. Their appeal succeeds. 34. Thus in the result, we dismiss the appeal in so far as it relates to accused appellants-Puttu, Har Pal, Maiku, Budhi and Kalktor. These accused appellants were released on bail vide this Courts order dated 2-4-80. Their bail is hereby cancelled. 148/302/149 I. P. C. and Sees. 147/302/149 I. P. C. respectively an accordingly set aside. Their appeal succeeds. 34. Thus in the result, we dismiss the appeal in so far as it relates to accused appellants-Puttu, Har Pal, Maiku, Budhi and Kalktor. These accused appellants were released on bail vide this Courts order dated 2-4-80. Their bail is hereby cancelled. The Chief Judicial Magistrate concerned is directed to issue all sort of coercive processes against these accused appellants and to commit them to prison to serve out their sentence awarded to them by the Court below. 35. The appeal in so far as it relates to accused appellants Raj Pal and Bankey is hereby allowed. Their conviction and sen tence are set aside. They are on bail. They need not surrender to their bail bonds, which are hereby discharged. 36. Let the record of this case along with the copy of this judgment be sent to the Court below immediately for its need ful compliance and report within three months. Appeal partly allowed. .