Judgment R.N.Sahay, J. 1. This appeal arises from the Sessions Trial No. 230 of 1989 on the file of IIIrd Additional Sessions Judge, Muzaffarpur in which six persons were charged and tried for the offence punishable under Section 302/120-B of the IPC. There was separate charge against these two appellants under Section 302/34 of the IPC. The charge of conspiracy failed and these two appellants were found guilty under Section 302/34, IPC for having committed murder of Bhag Narain Sahni in the morning of 15.11.1988 and sentenced to imprisonment for life. Appellant Ram Babu Rai was further convicted under Section 27 Arms Act and sentenced to imprisonment for three years. The remaining four accused persons were acquitted for lack of convincing evidence against them. 2. The appellants, deceased and the witnesses were inhabitants of village Gadha Hasan of Paru Police Station in the district of Muzaffarpur. The deceased was working somewhere in Assam. He had come to his village only a day before the occurrence on the occasion of Chhath Festival. The next morning of his arrival, at about 7.00 a.m. on 15.11.1988 the deceased Bhag Narain Sahni was returning from his cattle shed in the village accompanied by his minor daughter Rani Kumari PW 6. He was followed by his Bhabhi Dharchari Devi PW 1 when the deceased reached near the Darwaja of the acquitted accused Chandra Deo Rai, all of a sudden these two appellants emerged from the Darwaja of Chandra Deo Rai and approached the deceased. Appellant Ram Babu Rai took out country-made pistol and shot at Bhag Narain Sahni on his neck from behind. Bhag Narain Sahni fell on the ground and died on the spot. No overt act was committed by the other appellant Kokai Rai, who was simply accompanying Ram Babu Rai. Apart from Dharchari Devi PW 1, Jaleshwar Sahni PW 2, Bishwanath Sahni PW 4, Rani Kumari PW 6 and some other persons, who were thrashing paddy in the field, also reached at the place of occurrence. 3. It is the prosecution case that the deceased was in hostile term with the accused persons so much so that once an attempt was made to implicate him in a dacoity case. The deceased being apprehensive of danger to his life, decided to leave the village and went to Assam. 4. According to the defence, the deceased was of a bad character. The deceased being apprehensive of danger to his life, decided to leave the village and went to Assam. 4. According to the defence, the deceased was of a bad character. He was suspect in Paru P.S. Case No. 5 of 1988 under Sections 395 and 397, IPC. A dacoity case was registered a few months prior to the present occurrence. The informant of that case was Chandra Deo Rai (since acquitted), full brother of appellant Ram Babu Rai. One Sheo Mangal Sahni, cousin of the deceased was arrested in that case. The defence plea was that the deceased was murdered by some unknown persons but the appellants and acquitted accused persons were implicated. It was stated that Bhag Narain Sahni was murdered at about 7.00 a.m. on 15.11.1998 but it appears that no information of the occurrence was sent to the police station. Sri Ramdhan Pathak, A.S.I. of Paru Police Station learnt about the occurrence from some sources and reached the village at about 10.00 a.m. on 15.11.1988. The distance of village from the Police Station is about 4-1/2 kms. He recorded fardbeyan of Bishwanath Sahni. He found the dead body of the deceased on the road and prepared inquest report. A case was registered against 16 persons, who were named in the FIR. After investigation six persons including these two appellants were charge-sheeted. It appears that at the trial stage 10 persons were not summoned under Section 319, Cr PC by the trial Court. That order was unsuccessfully challenged before this Court. However, the trial proceeded against six persons. Out of them, four have been acquitted. 5. Learned trial Judge has summarised the material evidence in para 7 of the judgment under appeal as follows: "7. The ocular evidence of P.Ws. 1, 2, 4, 5,6,7 and 8 coupled wi th the medical evidence of P.W. 11 and the findings of I.O. (P.W. 12) clearly show that the death of Bhag Narain Sahni was homicidal by a fire-arm. P.W. 3 Yashoda Devi is the wife of deceased who reached at the P.O. immediately after the occurrence and saw the dead body of her husband lying there with blood coming out of an injury caused on the back of his neck. His death could not have been accidental or suicidal. P.W. 3 Yashoda Devi is the wife of deceased who reached at the P.O. immediately after the occurrence and saw the dead body of her husband lying there with blood coming out of an injury caused on the back of his neck. His death could not have been accidental or suicidal. In fact even the defence admit that Bhag Narain Sahni was killed by some one at that very place i.e. on the road near the Baramda of Chandradey Rai in village Gadha Hasan. The aforesaid evidence further show that death of Bhag Narain took place in the morning of 15.11.1988 as when the I.O. reached there at about 10 a.m. he found the dead body lying there on that date. This fact has also not been denied by the defence. The prosecution case is that the death of Bhag Narain was caused by Ram Babu Rai by a fire arm in furtherance of common intention with Kokai Rai and in compliance of conspiracy hatched up by all the accused persons in the previous night. So far accused Ram Babu is concerned, he is said to be the assailant of Bhag Narain by firing from a close range. There is ocular evidence of seven witnesses (PWs 1, 2, 4, 5, 6, 7 and 8) against him on this point. Out of them two (PW 1 and 6) are his closer relations being his Bhabhi and daughter who were coming with him. And the rest are his villagers who happened to be present nearby as the were thrashing paddy at the Dalan of accused Chandra Dev Rai The I.O. found paddy bundles kept there and signs of thrashing of paddy there which supports the explanation given by these PWs for their presence near the P.O. Of course these later mentioned five PWs ar also said to be the relations of the deceased. But they are relations by village courtesy only and not directly. As Bhag Narain had his Nanihal in the P.O. village so most of these witnesses have said that they are related to him as maternal uncle by village courtesy. All the aforesaid seven PWs have categorically supported the charge that Ram Babu whipped cut the fire arm and fired from behind on the neck of Bhag Narain from a close range which killed him then and there. All the aforesaid seven PWs have categorically supported the charge that Ram Babu whipped cut the fire arm and fired from behind on the neck of Bhag Narain from a close range which killed him then and there. The evidence of these PWs is quite consistent and appear to be reliable to prove the charge against him. The learned defence lawyer has no doubt stated that there was no immediate motive for the accused persons to commit the murder of Bhag Narain. The motive alleged is said to be of several months before as Bhag Narain was in Assam since more than six months. But in a case based on direct ocular evidence the prosecution is not bound to prove motive (It is only in a case based on circumstantial evidence that the prosecution is required to disclose some motive for the alleged crime. I, therefore find and held that the prosecution evidence fully proves the charge that Ram Babu Rai killed Bhag Narain Sahni by firing from a close range behind his neck. Accused Ram Babu Rai is therefore held guilty for offence under Section 302, IPC. As the murder was committed by him by a fire arm so he is further held guilty for offence under Section 27, Arms Act." 6. Learned trial Judge not only found Ram Babu Rai guilty but also found evidence sufficient for conviction of Kokai Rai although no overt act is alleged against the said appellant. 7. The deceased Bhag Narain Sahni was victim of homicide admits of no doubt. The post-mortem examination was held by Dr. Mumtaz Ahmad and following injuries were found on the person of the deceased : (i) One. wound ¼" in diameter with inverted margin on the back of the neck, two inches above 7th cervical vertebri and 3.5" from left ear. The area was opened and tissues were found grossly lacerated and congested; (ii) 1st, 2nd and 3rd cervical vertibri were found fractured and spinal cord was lacerated. The bullet was lodged in the left side of cheek i.e. it had passed after striking first, second and third cervical vertabri to the left side of cheek and passing from below the mandible it was lodged in left side to cheek. The deceased died due to shock and haemorrhage caused by the above ante-mortem injury by some fire arm. The bullet was lodged in the left side of cheek i.e. it had passed after striking first, second and third cervical vertabri to the left side of cheek and passing from below the mandible it was lodged in left side to cheek. The deceased died due to shock and haemorrhage caused by the above ante-mortem injury by some fire arm. The doctor has estimated the time of death between 24 to 36 hours from the time of examination. 8 So far evidence of eye-witness is concerned, Dharohari Devi, P.W. 1, bhabhi of the deceased is very material witness since she was following the deceased from the bathan. The deceased was going ahead with his daughter. When the deceased reached in front of the bathan of Chandra Deo Rai, appellant Ram Babu Rai came out from the bathan of Chandra Deo Rai, and fired on the neck of the deceased Bhag Narain Sahni from behind. He started tossing and turning and then died on the spot. This witness appears to be a competent witness. There is no reason to doubt her testimony of the actual offence. Rani Kumari P.W. 6 daughter of the deceased is also an important eye-witness. She was with her father. She saw Ram Babu Rai firing at her father but she has not alleged any overt act against the appellant Kokai Rai. 9. In my view the trial Judge was perfectly right in accepting the evidence of Dharchari Devi (P.W. 1). The evidence against appellant Ram Babu Rai is full proof and there is no reason to differ from the findings of the trial Judge so far this appellant is concerned. 10. So far the other appellant Kokai Rai is concerned, the evidence is not sufficient to hold that he shared any common intention with Ram Babu Rai in the murder of the deceased. Hence in the facts and circumstances of the case he is entitled to benefit of doubt. 11. In the result, the conviction of appellant Ram Babu Rai is affirmed and his appeal is dismissed. He is already in custody. So far appellant Kokai Rai is concerned, he is held not guilty under Section 302/34, IPC and acquitted, and discharged from the liability of bail bond. It is ordered accordingly. P.K.Sarkar, J. 12 I agree.