B. K. SHARMA, J. Ganga Madho and Shiv Lal, accused have preferred these ap peals against their respective convictions for the offences under Sections 302/34, IPC and Section 302, IPC and sentence of life imprisonment awarded to them by Sri V. P. Mathur, the then Sessions Judge, Fathepur in Sessions Trial No. 269 of 1978. 2. The prosecution story was that Ganga Madho and Shiv Lal, present ac cused-appellants, and Kaley alias Dinesh were friendly with each others and were occasionally found in each others com pany, that Ganga Madho accused-appel lant had a betel shop and that Prakash Chandra Gupta, deceased, was occasional ly seen on the Betel shop of Ganga Madho, accused-appellant ; that he (Ganga Madho) was havingsome sort of affair with one Km. Bimla, aged about 12 years, daughter of one Radhey Shyam, Lohar (not to be confused with Radhey Shyam son of Kanhaiya Lal Gupta, the informant in the present case) ; that about twenty days prior to the present occurrence, this Km. Bimla, aged about 12 years, daughter of one Radhey Shyam, Lohar (not to be confused with Radhey Shyam son of Kanhaiya Lal Gupta, the informant in the present case) ; that about twenty days prior to the present occurrence, this Km. Bimla was seen having light talks with the deceased Prakash Chandra Gupta at Hanuman Temple, hence since then the relations between Ganga Madho, accused-appellant and Prakash Chandra Gupta deceased became strained; that about 10- 12 days before the present occurrence, there was a quarrel between Ganga Madho accused and Prakash Chandra Gupta, deceased, in connection with the payment of dues of betels and in it Prakash Chandra Gupta, deceased, had even given a beating to Ganga Madho, accused-appellant, but on account of intervention by some people, the situation was saved; that Pramod, the brother of deceased, had some quarrel with accused Kaley alias Dinesh and in that connection, proceed ings under Sections 107/116, Cr PC were started by the police against Kaley alias Dinesh; that for that reason, Ganga Madho, accused-appellant and Kaley alias Dinesh, co-accused, were out to kill Prakash Chandra Gupta, deceased, and Shiv Lal, accused-appellant, who was their friend and associate joined them in this planning; that on 21-8-78, Radhey Shyam, informant, Prakash Chandra Gupta, deceased, Harendra alias Badal, Rajendra alias Pappu and Shanker were as usual playing cards on the Nautanki Chabutara in the Kaliji Temple within its precincts in Mohalla Jahanpur, Bindki town; that Pancham (PW-2), Moti and Sawani were sitting on a cot near the Chabutara ; that both the accused-appellants and co-ac cused Kaley alias Dinesh came on the spot; that Ganga Madho, accused-appellant, as armed with a small barrelled country made pistol and Shiv Lal, accused-appellant, with a long barrelled country made pistol while Kaley, co-accused, was empty handed that Kaley alias Dinesh pointed to the deceased and told Shiv Lal, accused-appellant that he was Prakash Chandra Gupta; that on seeing them, the deceased was taken aback and he started to get up but before that could be done both Ganga Madho and Shiv Lal, accused-appellants, placed their Tamancha on his body and Ganga Madho, accused-appellant retorted "saley AAJ BACH KAR NAHIN JANEY PAVOGAY" ; that both the accused-appellants fired with their Amentias ; that the cartridge of Tamancha of Ganga Madho, accused-ap pellant, missed, but the cartridge lured by Shiv Lal, accused-appellant struck the deceased due to which he fell down and profusely bled ; that Shiv Lal, accused-ap pellant, had dropped the empty cartridge of his Tamancha and tried to fill his Tamancha with another cartridge but in the meanwhile the witnesses challenged them, whereupon both the accused-appellants and Kaley alias Dinesh, co accused ran away ; that in the occurrence, the live cartridge which Shiv Lal, accused-appel lant wanted to fill in his Tamcnaha, fell on the ground; that the witnesses chased them, but in vain; that the deceased was injured but was alive and blood was oozing out from his wound so his injury was tied with his Angochha and he was taken to the Government Hospital, Bindki on the Theliya of one Goonga, covering his body with his own Tahmad; that he reached the hospital at 3. 50 p. m. where Dr. Prem Narain Shukla, Medical Officer, instantly declared him dead, that the dead body WPC taken to the Police Station where Raattey Shyam, informant, dictated his FIR to the Clerk Constable at 4. 15 P. M. who prepared chick report and a case was registered against both the present accused-appel lants and one Kaley, co-accused and an entry Ex. Ka-7 was made in the General Diary of the Police Station. 3. Dr. Prem Narain Shukla, Medical Officer, sent a slip (letter) Ex. Ka-3 through one Ashok Kumar to the Police Station informing about arrival of the dead-body. This slip was received while the General Diary entry Ex. Ka 8 was being recorded and so its mentioned was made in the same G. D. entry. 4. The Chik Report of this case was prepared in the presence of Sri R. N. Gangwar, Station Officer of Police Sta tion. He took up the investigation and on his direction Sri Chandrama Tewari, Sub-Inspector took inquest proceedings in respect of the dead body of the deceased, which had been brought to the Police Sta tion from the Hospital and sent it for post mortem examination. The investigating Officer, Sri B. N. Gangwar, interrogated the witnesses and thereafter, he inspected the spot and collected a live cartridge Ex. 15 and an empty cartridge Ex. 14 from the place of occurrence and sealed (hem vide Memo Ext. Ka. 20. He also found blood stained earth at the spot and scaled the same in separate tins. The sealed bundles were dispatched by him to the Police Sta tion through Constable Saeed Ahmad, who lodged it in the Malkhana on the same day at 7. 30 p. m. about which an entry was made in the G. D. at serial No. 33, copy of which was filed at the trial. He also took search of the house of Ganga Madho accused-appellant and recovered photo graphs Exts. 7 to 10,out of which Ext. 7 to 9 were the photographs of the girl and Ext. 10 was the photograph of the girl with a boy. He also recovered from there letters (Exts. 11 to 13) which purported to be love letters. The Investigating Officer inter rogated some more witnesses and then searched for the accused persons. 7 to 10,out of which Ext. 7 to 9 were the photographs of the girl and Ext. 10 was the photograph of the girl with a boy. He also recovered from there letters (Exts. 11 to 13) which purported to be love letters. The Investigating Officer inter rogated some more witnesses and then searched for the accused persons. Sub sequently, on receiving information from an informer, he arrested Shiv Lal, accused-appellant near Manikunwan, with the help of and in presence of witnesses, Shanker Lal PW-3 and another person and on making search one country made pistol and 12 live catrdiges were recovered from his person and taken into custody. Then Shiv Lal, accused appellant, was taken to the Police Station and lodged there. Thereafter, a report was submitted to Sri Laxmi Narain Kurcel. Sub-Divisional Magistrate, Bindki, Fathepur and the statement of Shiv Lal, accused-appellant, was recorded under Section 164, Cr PC on the same night. Subsequently, Ganga Madho, accused -appellant, surrendered in Court. The reports of the Chemical Ex amination of blood stained articles and that of Ballistic examination of the empty cartridge found at the spot and the pistol and cartridges recovered later on from Shiv Lal, accused-appellant, were recei ved. The report of the Ballistic expert Sri B. Ray was to the effect hat the empty cartridge (recovered from the place of oc currence) was fired from the pistol (which was later on recovered from the possession of Shiv Lal, accused-appellant ). 5. The investigation of the case under Section 25 of Arms Act against Shiv Lal, accused-appellant, about the recovery of Tamancha and cartridges from him without license was entrusted to Prahlad Singh, Sub- Inspector. The sanction was, however, delayed because the articles had been sent to Ballistic expert. 6. The post-mortem on the dead body of Prakash Chandra Gupta, deceased, was performed by Dr. Prakash Joshi, Medical Officer, District Hospital, Fathepur at 4 p. m. on 22-8-1978. His material observa tions were as follows: 7. External examination of the dead body that the deceased was of average body built. Rigor mortis was absent in upper limbs and was present in lower limbs. Greenish discoloration and blisters present all over body. The anti-mortem injuries were (1) one gun shot of entrance abdominal cavity deep on right side of abdomen in ant. axillery line 7" away from umbilicus and 2 1/2 above right ant. Superior iliac spine. Rigor mortis was absent in upper limbs and was present in lower limbs. Greenish discoloration and blisters present all over body. The anti-mortem injuries were (1) one gun shot of entrance abdominal cavity deep on right side of abdomen in ant. axillery line 7" away from umbilicus and 2 1/2 above right ant. Superior iliac spine. Margins inverted, blackening, tattooing present. (2) Two gun shot wound of exi 1/4" x 1/4" x abdominal cavity deep on left side of abdomen in ant. axillary line 1" above the iliac crest and 6" outwards from umbilicus. Both wounds arc lying at a distance of 3/4" from each other. Margins averted. No blackening and tattooing present. Direction was right to left and downwards. 8. On internal examination of the dead body it was found that haematoma was found present under injury Nos. 1 and 2, perioneum contained wound cor responding to injury Nos. 1 and 2. Cavity contained blood 2 1/2. The stomach contained about 2 oz. semi-digested food (rice and dal ). Small intestine was full. It contained digested food and was per forated. There were multiple wounds in large and small intestines with blood around it. Wadding pieces were found near colon. Two shots (i. e. pallets) bi" were recovered from left side abdominal wall near injury No. 2 and three shots were recovered from buttocks. 9. In the opinion of the doctor, the deceased died due to shock and haemor-rahage as a result of injury caused by fire arm. 10. Charge-sheet was submitted by the Investigating Officer against both the accused-appellants and Kalay alias Dinesh, co-accused for the offence of murder. Separate charge-sheet was submitted by Prahlad Singh, Investigating Officer, aginst Shiv Lal accused-appellant for of fence under Section 25, Arms Act. 11. Ganga Madho and Shiv Lal, both accused-appellants and Kaley alias Dinesh, coaccused were tried for the of fence under Section 302/34, IPC. At the same trial, Shiv Lal, accused-appellant was further tried for the offence under Section 25, Arms Act. 12. At the trial ocular evidence was given by Redhey Shyam informant (PW-1), Pancham (PW-2) and Shanker (PW-3 ). The informant has also given evidence on the point of motive as regards the quarrel between the deceased and Ganga Madho accused-appellant about a payment of money. Onkar Nath Gupta (PW-8) has given evidence about the other motive set up against Ganga Madho accused- appel lant. Dr. The informant has also given evidence on the point of motive as regards the quarrel between the deceased and Ganga Madho accused-appellant about a payment of money. Onkar Nath Gupta (PW-8) has given evidence about the other motive set up against Ganga Madho accused- appel lant. Dr. Prem Narain Shukla, who nad declared the deceased dead, has been ex amined as PW-4. Dr. Prakash Joshi, who conducted the post-mortem on the dead body of the deceased, has been examined as PW-5 Sri Laxmi Narain Kureel, Execu tive Magistrate, who recorded the judicial confession of the accused- appellant Shiv Lal was examined as PW Sri B. N. Gangwar (PW-10) has given evidence about the investigation made by him in the case. He has also given evidence about the arrest of Shiv Lal, accused- appellant, and the recovery of a country made pistol and 12 live cartridges from him. Shanker (PW-2) also has given evidence about this arrest and recovery. The ballistic expert was ex amined by the prosecution to prove his report afore said. Necessary link evidence has also been adduced by the prosecution to show that the empty cartridge Ex. 14 found by the Investigating Officer at the spot at the time of spot inspection and the tamancha Ex. 1 and the live cartridge recovered later from Shiv Lal, accused-appellant remained sealed all along till their delivery to the ballistic expert. Prah lad Singh, who had investigated the case under Section 25 Arms Act, was also ex amined by the prosecution at the trial as PW-13. The prosecution also adduced other formal evidence at the trial which will be referred to at the appropriate stage. 13. At the trial Ganga Madho and Shiv Lal, accused-appellants and Kale co-accused pleaded not guilty. Ganga Madho accused-appellant denied his presence and participation in the occurrence. He also denied the quarrel with the deceased and the affair with Km. Simla. He claimed that the policemen of the Police Station used to take tea and Paan at the spot, but never paid and he was abused whenever he demanded payment. He further claimed that the informant had gone to the Barat (marriage procession) of his (Ganga Madhos) brother and there he drank and misbehaved, due to which he (Ganga Madho accused-appellant) made him to run away and for this reason he had been falsely implicated in this case. 14. He further claimed that the informant had gone to the Barat (marriage procession) of his (Ganga Madhos) brother and there he drank and misbehaved, due to which he (Ganga Madho accused-appellant) made him to run away and for this reason he had been falsely implicated in this case. 14. Shiv Lal, accused-appellant, claimed that he had no friendship with the other accused persons, nor he had any acquaintance with the deceased. He denied his presence and participation in the occurrence and having made any con fession before any Magistrate. He claimed that he was beaten at the Thana and was forced to make the statement. He had claimed that one Oudh Bihari owned a tractor and Shiv Lal was in service with Oudh Bihari as driver on his tractor, that he used to come to Bindki and passengers were allowed to board this tractor but whenever the witnesses of the case and die policemen wanted to sit on this tractor he always resented and did not allow them that convenience. He further claimed that out of Ranjish he has been falsely impli cated. He further claimed that Oudh Bihari had sustained some injuries in his fingers and was admitted to a private hospital near the Thana of Bindki and that from there he, who was in attendance with Oudh Bihari was arrested, brought to the Thana, interrogated and beaten. It was also claimed that a pistol was fired in the Thana and the weapon etc. were planted on him and he was challaned. 15. Kaley alias Dinesh, co-accused, denied his presence and participation in the occurrence. He claimed that he had been falsely implicated in this case. 16. Shiv Lal, accused-appellant, ex amined Awadh Behari (PW-1) in support of his claim that he was in the Hospital of Dr. Jai Kumar and was arrested from there. 17. The learned Sessions Judge ac cepted the ocular evidence of the prosecu tion about the occurrence and also accepted the evidence of motive led by the prosecution. He also accepted the evidence of arrest of Shiv Lal, accused-ap pellant and the recovery of the country made pistol and live cartridges from him. He also accepted the evidence of the ballis tic expert that the empty cartridges Ex. 14 (found by the Investigating Officer from the scene of occurrence) fired from the country made pistol (Tamancha) Ex. He also accepted the evidence of arrest of Shiv Lal, accused-ap pellant and the recovery of the country made pistol and live cartridges from him. He also accepted the evidence of the ballis tic expert that the empty cartridges Ex. 14 (found by the Investigating Officer from the scene of occurrence) fired from the country made pistol (Tamancha) Ex. 1 (that was recovered from Shiv Lal accused-appellant ). The learned Sessions Judge rejected the defence evidence led from the side of Shiv Lal accused-appellant. He, however, discarded the judicial confession recorded by the Executive Magistrate Sri Kureel, on the ground that the judicial confession recorded by the Executive Magistrate was not voluntarily made but it was made under pressure and duress at the hands of the police. 18. The learned Sessions Judge con sequently accepted the prosecution case against Ganga Madho and Shiv Lal ac cused- appellants and convicted Shav Lal accused-appellant of the offence under Section 302, IPC and Ganga Madho ac cused-appellant of the offence under Sec tion 302/34, IPC and sentenced both of them to imprisonment for life. 19. As regards the charge under Sec tion 25 of the Arms Act, since he (the learned Sessions Judge) found that the sanction of the District Magistrate was obtained after the submission of the charge-sheet, he held that the trial of this accused-appellant (Shiv Lai) in respect of this charge was invalid and so he (Shiv Lal accused-appellant) cannot be convicted and sentenced under this charge. 20. As far as Kaley alias Dinesh co-ac cused was concerned, he giving benefit of doubt acquitted him of the charge under Section 302/34, IPC. 21. The appeals of both these ac cused-appellants were consolidated and heard together. In the appeals the accused-appellants were presented by separate Counsel but Sri B. C. Tewari, Senior Advo cate, has argued the entire case in the appeals on merits. 22. From the post-mortem evidence and other evidence on record it is amply established that it is a case of murder, whoever might have been the assailant or assailants. The defence also did not dis pute it. 22. From the post-mortem evidence and other evidence on record it is amply established that it is a case of murder, whoever might have been the assailant or assailants. The defence also did not dis pute it. The post-mortem examination report shows that the deceased sustained single gunshot wound of entrance which was a result of a single firing and which was resorted to from very close quarters be cause there was blackening and tattooing on the surface of the skin and the dispersal of the shots was negligible in as much as the shot entered from a single wound and went out causing two wounds of exit on the left side of the abdomen. 23. Coming to the time of occurrence, the ocular evidence led by the prosecution was that the occurrence took place at 3. 30 p. m. at the Nautanki Chahotara of Kali Temple in the mohalla Jehanpur P. S. Bindki and from there the deceased was immediately taken to the Government Hospital, Bindki (which appears to be not far away) where the Medical Officer on duty declared him dead. Thus, on the prosecution case the time of occurrence and the time of death approximate. 24. The defence claimed in the cross-examination of the informant that the deceased died in the darkness of night and, therefore, the fixing of time of occurrence and of death becomes the first priority in this case. The evidence of Dr. Prem Narain Shukla, Medical Officer, Bindki (PW-4) is quite categorical. It is to the effect that on 21-8-78 at 3. 50 p. m. the dead body of deceased was brought in the Hospital and he told the persons who had accompanied the deceased that he is dead and that he had sent information about the arrival of the dead body to the Police Station through a letter, Ex. Ka-3. He has proved this letter which is signed by him. Here it may also be mentioned that the Clerk Con stable Ram Lakhan (PW-7) who recorded the chick report of the case and made entry about registration of the case at 4. 15 p. m. on 21-8-1978 at Police Station Bindki stated that in the entry about the registra tion of the case made by him in the G. D. of the Police Station at serial No. 20, Ex. Ka-7 he had made a mention about the receipt of the letter Ex. 15 p. m. on 21-8-1978 at Police Station Bindki stated that in the entry about the registra tion of the case made by him in the G. D. of the Police Station at serial No. 20, Ex. Ka-7 he had made a mention about the receipt of the letter Ex. Ka-3 from Dr. Prem Narain Shukla. He had testified that this letter from Dr. Shukla was received by him while he was recording the case in the G. D. after having prepared the chick report of the case on the basis of the FIR and that consequently he made a mention of coming of Ashok Kumar Peon of the Hospital with the letter of Dr. Prem Narain Shukla from the Hospital in the same G. D. entry. No exception can be taken to the course adopted by this witness. Since he was recording the G. D. Entry No. 20 at the lime of receipt of this letter from Dr. Shuk la it was natural and proper for him to make a mention about it in the same G. D. entry. It was unnecessary for him to make a separate entry in the G. D. of the Police Station about the arrival of this letter from Dr. Shukla. 25. The letter, Ex. Ka-3, sent by Dr. P. N. Shukla is certainly an important docu ment informing the Police Station that a man has been brought to the Hospital in dead condition. The memo, Ex. Ka- 3 also indicated that the dead body was having injury on it and that the injury had been tied with apatti. This letter also gave the name of the deceased and his address which indicated that the persons who had come with the dead body had furnished the said particulars about the deceased. It showed that the persons were acquainted with the deceased. The defence argument is that originally 9 p. m. was the time recorded in the letter but it was sub sequently altered and changed to 3. 50 p. m. It has been argued on the basis of this over writing in the time, that this letter should be discarded and the testimony of the doc tor too be discarded. This contention was raised before the trial Court and it has been raised before this Court as well. The original letter is before us. 50 p. m. It has been argued on the basis of this over writing in the time, that this letter should be discarded and the testimony of the doc tor too be discarded. This contention was raised before the trial Court and it has been raised before this Court as well. The original letter is before us. In the body of the letter the writing in the time 3. 50 BAJE SAENKAU the figure 3 has been written on the left side which is not in alignment with the remaining body writing of the letter but is removed towards the left. However, by no strength of imagina tion it can be held that the figure 9 was originally written. It seems that originally the figure 4 was sought to be written but then 50, was written over it and 3 was written on the left side to make it 3. 50 p. m. to be more accurate. In our view this overwriting does not create suspicion in the mind about the time of the arrival of the dead body of the deceased at the Hospital or about the time of despatch of the said letter from the Hospital to the Police Station. We have noted earlier, the categorical testimony of Dr. Shukla that at about 3. 50 p. m. the dead body was brought before him. Dr. Shukla had stated that whatever over-writing was made in the document was made at the time when this document was being scribed and before his signing the document. He has refuted the defence suggestion that the police sub sequently got the time changed as 3. 50 p. m. before him or from his compounder. He also refuted the suggestion that the com pounder had originally written the time 9 p. m. in this document. No motive has been imputed to Dr. Prem Narain Shukla a public officer to go out his way for the sake of the prosecution. Further more, there are various circumstances which go to cor roborate the testimony of Doctor Shukla on the point. One is that the over-writing appears to have made in the same pen and in the same ink in which the remaining body writing of the letter has been written. The entire letter is in Hindi and in it after the time 3. 50 Baje in the letter the word sayankal has been written. One is that the over-writing appears to have made in the same pen and in the same ink in which the remaining body writing of the letter has been written. The entire letter is in Hindi and in it after the time 3. 50 Baje in the letter the word sayankal has been written. If the compounder had originally written the figure 9 in its body writing, then instead of recording the word sayankal after this figure he would have written in the ordi nary course the word ratri. Then as noted earlier, mention about the arrival of this document has been made in the G. D. Entry No. 20, Ex. Ka-7, recorded by Ram Lakhan, Clerk Constable (PW-7) at the Police Station about the registration of the present case at 4. 15 p. m. Further more, this entry is not the solitary entry in the G. D. in that evening. There are a series of entries in the G. D. following it. There were entries from serial No. 21 to serial No. 26 in the G. D. of the same day. The contents of these entires may not be before us but the factum of those entires is itself significant even if those entries are taken to be just routine entries in the G. D. made from time to time in the ordinary course about misc. matters. 26. Then we have specifically before us the G. D. Entry No. 28 of 18. 05 hours, Ex. Ka-8, recorded by S. I. Chandrama Tiwari in his own hand writing about his lodging of a sealed bundle containing the blood stained Tahmad of the deceased at the Police Station. This entry has been proved by Ram Lakhan Cleric constable (PW-7) in Ms a mined. S. I. Chandrama Singh himself as PW-9. He testified to the inquest report (Panchayatnama) and other papers prepared by him in these proceedings. In the Panchayatnama he has recorded 4. 45 p. m. on the date as the time of start of the inquest proceedings and recorded 6 p. m. as the time of close of the inquest proceed ings. He was cross-examined by the defence but not a word was put to him in challenge that aforesaid entries made by him in the inquest report (Panchayat nama ). 45 p. m. on the date as the time of start of the inquest proceedings and recorded 6 p. m. as the time of close of the inquest proceed ings. He was cross-examined by the defence but not a word was put to him in challenge that aforesaid entries made by him in the inquest report (Panchayat nama ). The inquest proceedings were un dertaken at the gate of the Police Station itself as the dead body of the deceased had been brought there from the Govt. hospi tal so it was natural to take just five minutes in lodging the sealed bundle at the Police Station containing the blood stained Tahmad of the deceased. Then there is another entry of the same day at serial No. 33 of 19. 30 hours about the filing of sealed bundles at the Police Station by Constable Saiyyad Ahmad one bundle of simple earth, one bundle of blood stained earth and one bundle containing two cartridges (one empty and one live ). On his return to the Police Station along with the I. O. Sub-Inspector Gangwar. This entry is Ex. Ka-9. It has been duly proved by Clerk Constable Ram Lakhan (PW-7 ). Not only this but thee are other entries. There is one entry in the G. D. at serial No. 37 of 21. 15 hours. It is about the lodging of the ac cused- appellant Shiv Lal at the Police Sta tion by S. I. , R. N. Gangwar, IO alongwith a sealed bundle made on the basis of recovery memo (Ex. Ka ), whose copy is Ex. Ka- 1. In this G. D. Entry there was also mention about the registration of the case under Section 25 of the Arms Act against Shiv Lal accused appellant as the basis of this recovery. Then the defence has itself elicited from the Clerk Constable in this cross- examination that after it the departure of Shiv Lal accused- appellant was made from the Police Station at 21. 30 Hrs. in the G. D. for recording his (Shiv Lal accused-appellants) confession under Section 164, Cr PC by the Executive Magistrate. There is yet another entry in the G. D, at SI. No. 39 showing that he was brought back and lodged at the Police Sta tion at 23 hours. 30 Hrs. in the G. D. for recording his (Shiv Lal accused-appellants) confession under Section 164, Cr PC by the Executive Magistrate. There is yet another entry in the G. D, at SI. No. 39 showing that he was brought back and lodged at the Police Sta tion at 23 hours. So it will be seen that there was a string of entries in the G. D. one after the other after the recording of the G. D. Entry No. 20 (Ex. Ka-7), in which there was a mention of the arrival of the letter Ex. Ka-3 from the Medical Olftcer Dr. Shukla which rules out the possibility of 9 p. m. being originally recorded in Ex. Ka-3 as the time of arrival of the dead body at the Hospital. 27. Beside the sequence of these entries, the other prosecution evidence mentioned earlier and the time of the recording of judicial confession under Sec tion 164, Cr PC being given in (he alleged confession (Ex. Ka-5) as 10. 45 p. m. also showed beyond doubt that there was no change in the police records and cor roborated the testimony of Dr. Shukla aforesaid that the dead body of the deceased was brought before him in the Hospital on the date at 3. 50 p. m. and that the letter Ex. Ka-3. was sent by him imme diately after it and the prosecution case that the letter arrived at the Police Station soon after 4. 15 p. m. after the chick report Ex. Ka-1 had been recorded by the Clerk Constable and the G. D. entry No. 20 Ex. Ka-7 about the registration of the case was being written by him. 28. Regarding having had to the common course of human conduct, it is to be presumed that the body of the deceased was taken to the Hospital on a hand-cart from the place of occurrence and was got examined by the Medical Officer on duty there because the deceased was alive when the persons accompanying him started and they thought that his life may be saved by medical attention becoming available but he died in the wav or at any rate the deceased actually died at the spot during the occurrence but the persons thought in good faith hat he was still alive and could be saved by medical alien on and so took him to the Hospital. Further it may be safely presumed that the deceased was taken to the Hospital immediately or soon after he had received his injuries in the occurrence. 29. The contention of the Senior Ad vocate for the defence is that the occur rence would have taken place in the pre vious night and the deceased would have died in the previous night i. e. in the night between 20/21 August, 1978 and that on the next date the dead body was taken to the Hospital has to be rejected outright. In the ordinary course, the bodies of persons known to have died already are never taken to the Hospital or to the Police Station. It can also not be believed for a moment that the occurrence had taken place in the previous night and that the dead body would have been taken to the Hospital the next day so as to be brought there at 9 p. m. as was the contention of the defence. If the death of the deceased had taken place in the previous night and at all it was planned that the dead body would be taken to the Hospital, it would have been taken in the morning and not at 9 p. m. after the passing of the whole day or even at 3. 50 p. m. the time of reaching of the dead body at the Hospital as claimed by the prosecution. 30. Further more, the post-mortem report in the case showed that the stomach of the deceased contained about 2 oz. semi digested food (rice and dal) and small intestine was full of digested food, which was fully consistent with the prosecution case that the occurrence took place at 3. 30 p. m. on 21- 8-1978. It may be mentioned here that the defence itself elicited from Radhey Shyam informant (PW-1) during his cross-examination at the trial that he along with others used to go to play cards at the Kali temple often after the noon meals. This statement was not challenged or con troverted. 30 p. m. on 21- 8-1978. It may be mentioned here that the defence itself elicited from Radhey Shyam informant (PW-1) during his cross-examination at the trial that he along with others used to go to play cards at the Kali temple often after the noon meals. This statement was not challenged or con troverted. This statement showed that generally the deceased and the other used to take food and then collect at that spot at noon for playing cards as a regular course of conduct and that following the usual course on the date of occurrence also they would have reached at the spot in the noon after taking their food and so that deceased would have taken his food before noon so as to arrive at the scene for playing cards by that time. Medical authorities are consis tent that normally it takes 5 to 6 hours for food to digest. So the medical evidence is fully consistent with the time of occur rence and of the death of the deceased soon after as set up by the prosecution. It may be mentioned here that it has not been claimed by the defence that the injuries of the deceased were such that the deceased could not have died soon after the occur rence. 31. It may also be mentioned that the post-mortem was conducted on the dead body of the deceased by Dr. Prakash Joshi (PW-5) on 22-8-1978 at 4 p. m. and the probable time of death of the deceased had been estimated by the autopsy surgeon to be about one day. In other words, accord ing to the opinion of the autopsy surgeon the death of the deceased would have taken place at about 4 p. m. on 21-8-1978, which very much approximates with the time of occurrence and the time of death of the deceased as claimed by the prosecu tion. It may be that in his cross- examina tion at the trial the autopsy surgeon said that there could be a difference of 5 to 6 hours either way in the time of death es timated by him but it is immaterial. It may be that in his cross- examina tion at the trial the autopsy surgeon said that there could be a difference of 5 to 6 hours either way in the time of death es timated by him but it is immaterial. It is no bodys case that the occurrence and the death took place at 10 a. m. or 11 a. m. on the date of occurrence and the possibility of the occurrence and the death of the deceased taking place at 9 p. m. is ruled out on the facts noted above and the other circumstances of this case. 32. The learned Senior Advocate has claimed before us that the blisters found all over the body of the deceased in the post- mortem report could not have been found if the occurrence had not taken place several days earlier. Learned Coun sel has not supported his contention by any medical authority whatsoever, nor has been able to put forward any reason in support of this contention. Nor was a single question put to the autopsy surgeon in cross-examination by the defence about it when he was in the witness box. It was not suggested to him or to any other prosecu tion witness that the death would have taken several days earlier or in the night between 20/21 August, 1978. The conten tion of the learned Senior Advocate is thus an after thought and has to be rejected as untenable. 33. On the discussion of the above facts and the circumstances, we conclude and hold that the occurrence took place on 21-8-1978at3. 30p. m. 34. Next comes the place of occur rence. The ocular testimony led by the prosecution at the trial is that the occur rence took place at the Nautanki Chabutara in the precincts of Kali Temple. The place of occurrence has been men tioned in the written FIR of the case, which had been lodged promptly. This cor roborates the testimony of the informant at the trial. The ocular testimony led by the prosecution at the trial is that the occur rence took place at the Nautanki Chabutara in the precincts of Kali Temple. The place of occurrence has been men tioned in the written FIR of the case, which had been lodged promptly. This cor roborates the testimony of the informant at the trial. Then there is the testimony of S. I. Gangwar, who was the I. O. that after the lodging of the FIR and the registration of the present case he promptly went to the place of occurrence on the date of occur rence itself for investigation and found blood lying at the spot and that he took blood stained and simple earth from there and sealed it in separate Dibbles and also showed the factum of finding blood at the spot in the site-plan prepared by him on the date. Then there was the report Ex. Ka-37 of the Chemical Examiner who ex amined the blood stained earth and simple earth, and found that the sample of earth was stained with blood. Yet another cir cumstances which went to fix the place of occurrence was his evidence about the recovery of an empty cartridge and a live cartridge at the scene of occurrence at the time of his spot inspection on the date of occurrence. The ocular evidence of prosecution is that Shiv Lal accused-ap pellant discarded the empty cartridge after having fired at the deceased and further trial to fill another cartridge in the barrel of his Tamancha, but that live cartridge fell down, while the accused persons started to run away from the spot on the alarm raised by the witnesses. There is no reason to doubt this evidence. There was no reason for the police to have planted these two cartridges to falsely implicate Shiv Lal ac cused appellant. 35. Then as noted earlier, there is also the evidence of the eye-witnesses that immediately after the occurrence the deceased was taken on a hand-cart to the Government hospital, Bindki, where he was declared dead by Dr. Prem Narain Shukla at 3. 50 p. m. the same day. It is not in dispute that the scene of occurrence set up by the prosecution was not far away from the Hospital. Then none of the eye-witnesses has been suggested in the cross- examination that the occurrence had taken place else where. Prem Narain Shukla at 3. 50 p. m. the same day. It is not in dispute that the scene of occurrence set up by the prosecution was not far away from the Hospital. Then none of the eye-witnesses has been suggested in the cross- examination that the occurrence had taken place else where. At no stage the defence suggested any other place as the place where the occurrence took place. Furthermore, there was nothing to gain by the prosecu tion in shifting the place of occurrence in the present case. Considering all the cir cumstances, we have absolutely no doubt that the occurrence took place on the Nautanki Chabutara in the compound of Kali Temple at 3. 30 p. m. as claimed by the prosecution. 36. The ocular testimony in this case has been given by Radhey Shyam inform ant (P W-f), Pancham (P W-2) and Shankar (PW-3 ). The eye-witnesses narrated the prosecution story as outlined above. Before we proceed to discuss the tes timony of the eye-witnesses, we may point out that in assessing the value of the evidence of the eye-witnesses, there are two principal considerations: (1) whether in the circumstances of the case, it is pos sible to believe their presence at the scene of occurrence or in such situation as would make it possible for them to witness the facts deposed to by them, (2) whether there is anything inherently improbable or unreliable in their evidence. In respect of both the considerations circumstances either elicited from those witnesses them selves or established by other evidence tending to improbable their presence or to discredit the veracity of their statement will have a bearing upon the value which a court may attach to their evidence 37. The testimony of the informant Radhey Shyam, (PW-1) was that he was in the habit of going to kali temple daily where some other persons also collected and then they all used to play cards and usually he himself, Prakash Chandra deceased, Harendra alias Badal and Rajendra alias Pappu and some times other persons, of whom some used to come at the spot regularly and some did not come regularly for playing cards, that on the date of occurrence he (Radhey Shyam) started playing cards from 12. 30 or 1 p. m. , that Pancham and Moti were there from the beginning and Sabni and Shankar had come later on and that Sabni joined Pancham and Shankar joined him (Radhey Shyam informant ). There was nothing un natural or improbable in his testimony. His presence at the spot is confirmed and corroborated by the circumstances that he got the deceased carried to the Hospital on a hand-and of Ganga in an injuied condi tion immediately after the occurrence and that Dr. Shukla Medical Officer on duty examined the body of the deceased imme diately on its reaching there at 3. 50 p. m. and declared him dead and that Dr. Shukla sent a letter, Ex. Ka-3, to the Police Sta tion, and that it was Radhey Sayam inform ant himself (PW-1) who had lodged the written FIR at the Police Station, at 4. 15 p. m. and there was a mention of this letter of Dr. Shukla (Ex. Ka-3) in the G. D. entry of the lodging of the said written FIR by Radhey Shyam informant at the Police Station. 38. Pancham (PW-2) testified that whenever he found time he went to the compound of Kali temple and enjoyed the shade there. He stated that he was sitting on a cot in the compound of Kali temple alongwith Moti and Sabni while Radhey Shyam (informant), Pappu, Badal, Prakash Chand (deceased) and Shankar (PW-3) were playing cards on the Chabutra when the occurrence took place. He has claimed on oath that he used to go to the Kali temple daily and sat there, that on the date of occurrence he was sitting there from 12. 30 or 1. 00 p. m. He also tes tified that 10 to 15 minutes after Moti had come there as usual and Sabni had come there at 2. 45 p. m. as he wanted to settle the account of milk with him. Shanker PW-3 claimed that on the date of occurrence, he had gone to the house of Pancham for settling the account of milk, that Pancham PW-2 used to come to his house to take milk, that Sabni of his village had also come to Pancham PWs house to settle his account of milk with him (Pancham), that Pancham was not present at his house and he learnt that Pancham had gone to the temple. He further testified that there upon he went to the Kali temple and reached there at about 3. 30 p. m. and that Sabni was also accompanying him that Pancham (PW-2) and Moti were sitting in the temple on a cot and Sabni joined Pancham and sat with him, that Radhey Shyam informant, Prakash Chaud deceased, Pancham and others were play ing cards on the Chabutara and that he also went to the Chabutara and started seeing the game of cards and also played. He further testified to the present occurrence as having taken place in his presence. There is no reason to doubt the presence of Pancham and Shanker PWs on the scene of occurrence as claimed by them. There is nothing unnatural and improbable in their claim of presence there. It is also a cir cumstance in their favour that the Investigating Officer had interrogated them at the Police Station immediately after the lodging of the FIR by Radhey Shyam in formant (PW-1) in this case. Pancham (PW-2) and Shanker (PW- 3) both claimed to have accompanied the deceased when he (the deceased) was being taken on hand-cart to the hospital immediately after the occurrence. There is no reason to doubt the testimony of all these three eye witnesses about the occurrence that Ganga Madho and Shiv Lal accused-ap pellants came to the spot and put their weapons very close to the body of the deceased and that the Ganga Madho ac cused-appellant fired his Tamancha but it result in a misfire and then Shiv Lal ac cused-appellant fired his Tamancha which resulted in the ante mortem injury of the deceased which caused his death and fur ther that Shiv Lal accused- appellant dis carded his empty cartridge on the spot and tried to fill in the Tamancha afresh but before he could fill in the Tamancha again the witnesses had started raising alarm and that consequently, the live cartridge in question fell down on the spot. He also testified that Ganga Madho accused-ap pellant had retorted while putting his Tamancha close to the body of the deceased (SALE AAJ BACH KAR NAHI JANE PAWOGE), before the shots were fired. 39. An important circumstance in respect of these three eye- witnesses is that they are all independent witnesses. None of them is related to the deceased or to any body connected with the deceased. 39. An important circumstance in respect of these three eye- witnesses is that they are all independent witnesses. None of them is related to the deceased or to any body connected with the deceased. Radhey Shyam informant (PW-1) might have been involved in various criminal cases as an accused but there appears no reason for his implicating the accused-appellants falsely. He has refuted the suggestion that he had gone in the marriage procession of Ganga Madho accused-appellants brother and a quarrel took place between him and Ganga Madho. No oral and documentary material has been placed on record in sup port of his claim by Ganga Madho accused appellant. Pancham PW-2 was only sug gested on behalf of Ganga Madho accused appellant that he had given false evidence at the instance of Radhey Shyam informant. He has refuted this suggestion. Shanker PW-3 was suggested on behalf of Ganga Madho accused-appellant that he was giving false evidence because of his association with informant. 40. The informant was suggested in cross-examination on behalf of Shiv Lal accused appellant that he (Shiv Lai) refused to carry him in the tractor of Oudh Behari which he used to drive and that this was the reason for enmity. He refuted this suggestion. 41. Pancham PW-2 was suggested on behalf of Shiv Lal accused- appellant that he gives false evidence under pressure of the police. He has refuted this suggestion. 42. Shanker PW was suggested on behalf of Shiv Lal accused- appellant that he has been made a witness by police and Gaya Prasad acting incorrect. He denied this suggestion though admitting that he had taken the land of Gaya Prasad on batai. But Shiv Lal accused-appellant nowhere set up any enmity between himself and Gaya Prasad. It has been suggested to this witness what he and Sabni used to supply milk to the police and have friendship with the police. The suggestion itself indicated that this witness is a general supplier of milk. The witness denied having been sell ing milk to the police and having friendship with the police 43. There was reason to doubt the testimony given by these witnesses against the present accused- appellants. 44. It has been argued by the learned senior Advocate for the defence that the theory of playing cards was untenable. The witness denied having been sell ing milk to the police and having friendship with the police 43. There was reason to doubt the testimony given by these witnesses against the present accused- appellants. 44. It has been argued by the learned senior Advocate for the defence that the theory of playing cards was untenable. It was pointed out that according to the informant, there were two Gaddis of cards, while according to Shanker (PW-3) kot Pees was being played for which only one Gaddi was needed and that the presence of two Gaddis suggested that it was a case of rami. Radhey Shyam (PW-1) had stated that two Gaddis of cards used to be pur chased at one time by contributing money. He did not say that two Gaddis of cards were present and being used at the time of this crime. In our view all these details were immaterial. It has been claimed by the Senior Advocate for the defence that it would have been a case of gambling and a quarrel could have taken place in that gambling and in the course of the same quarrel some body would have fired a shot. This plea of quarreling in gambling was sought to be supported by the fact that no cards were found by the Investigating Officer, as lying at the spot. It has come in the evidence of Radhey Shyam informant in cross-examination that when they had gone to chase the culprits they had left the cards at the spot but when they came back some body had picked the cards from there. In our view, non-finding of cards by the Investigating Officer at the spot in this case was immaterial. If the Investigating Officer wanted to plant cards as a corroborative circumstance he could very easily do so. The Chabutara on which the cards were played by the witnesses was a public place and any one of the players or any other person could have collected and removed the cards from there. So nothing revolves on the non-finding of cards at the spot. The plea of quarrel a fire therein as set up by the senior Counsel appears to be an after thought as no such plea was taken by the accused- appellants at the trial before the learned Sessions Judge. So nothing revolves on the non-finding of cards at the spot. The plea of quarrel a fire therein as set up by the senior Counsel appears to be an after thought as no such plea was taken by the accused- appellants at the trial before the learned Sessions Judge. So it is not possible for the Court to entertain a new plea at this stage or to imagine such a plea. 45. Apart from the above evidence there is the evidence of motive. As regards Ganga Madho accused- appellant, a mo tive was set up in the FIR that about 10 to 12 days prior to this occurrence a quarrel had taken place between Ganga Madho accused-appellant and Prakash Chand deceased about some Len- Den of money in front of the betel shop of Ganga Madho accused-appellant in which the deceased (Prakash Chandra) had beaten Ganga Madho accused-appellant and that some persons had intervened and got the matter resolved. In regard to this motive, there is evidence of Radhey Shyam informant (PW-1 ). In his cross-examination it was elicited from him that the quarrel between Ganga Madho accused- appellant and Prakash Chandra deceased had not taken place in his presence. However, he had stated on oath that the deceased had him self told him about this occurrence two or three days prior to the present occurrence. This statement given by the deceased to the informant two or three days prior to the present occurrence amounted to a dying declaration under Section 32 (1) of the Indian Evidence Act. The defence of course made a denial of this motive. There is no reason to doubt the testimony of the informant on the point. It is correct that this witness stated that the deceased did not tell him as to who were present at the spot of that quarrel and nor he had asked the deceased as to who were present at the spot of that quarrel. However all these replies do not cast any doubt over his tes timony. It was not necessary that the deceased should have narrated the names of the persons who were present at the time of that quarrel at the spot and for the informant too it was not necessary to ask from the deceased as to who were the witnesses of the quarrel (Marpeet ). It was not necessary that the deceased should have narrated the names of the persons who were present at the time of that quarrel at the spot and for the informant too it was not necessary to ask from the deceased as to who were the witnesses of the quarrel (Marpeet ). The deceased had told the informant the fact of Marpeet and the informant had narrated the same without adding or subtracting anything. So this motive goes to cor roborate the ocular testimony about the involvement and participation of Ganga Madho in the murder of the deceased. 46. At the trial the prosecution has given evidence about another motive. It may be that this motive had not been dis closed in the FIR but in the circumstances of this case this absence of narration of this motive in the FIR is not at all such as to cast any doubt on the evidence about it led at the trial. It is because the informant was not a relation of the deceased so as to be aware of all the circumstances relating to the deceased. The informant narrated in the FIR the dying declaration of the deceased because it has been made to him and about the other motive no mention was made in the FIR obviously because he did not know about it. It may be mentioned here that in his testimony at the trial the informant had not made any effort to tes tify to the second motive set up by the prosecution at the trial. 47. The evidence about the second motive had been given at the trial by Onkar Nath Gupta (PW-8 ). The testimony of the Investigating Officer Gangwar S. I. (PW-10) showed that he had interrogated this witness on 23-8-78. As noted earlier, the present occurrence had taken place on 21-8-78 at 7. 30 p. m. So it cannot be said that the Investigating Officer has con cocted a motive in support of the prosecu tion as an after thought Onkar Nath Gupta (PW-8), happened to be an Insurance Of ficer at Bindki. He is a responsible public Officer. He testified that at Mughal Road Ganga Madho accused-appellant carried on a Paan shop in front of his house on the other Patri of the road. This testimony has not been challenged in the cross-examina tion. He is a responsible public Officer. He testified that at Mughal Road Ganga Madho accused-appellant carried on a Paan shop in front of his house on the other Patri of the road. This testimony has not been challenged in the cross-examina tion. He also testified that he used to see the deceased visting the said Paan shop of Ganga Madho accused-appellant off and on this testimony of this witness has also not been challenged in the cross-examina tion. He further testified that in Bindki there is one Km. Vimla, aged about 10 years, who was the daughter of one Radhey Shyam Lohar not to be confused with Rad hey Shyam informant who is Bania by caste being son of Kanhaiya Lal Gupta. He fur ther testified that while going from his house to the Bazar and coming back he used to purchase Paan from the shop of Ganga Madho accused-appellant and in the course of that he had seen Km. Vimla standing on the Khirki of her house and used to see that she and Ganga Madho accused-appellant were making Isharebazi (gestures) to each other. He further testified that he had noticed this prior to this occurrence of murder of the deceased. He had further testified that the murder of the deceased took place on 21-8-78, that about 25 days prior to it he was standing on the roof of his house in the evening, that he saw the deceased and Km. Vimla cutting jokes and talking with each other in the Hanuman temple situated near the Talab in front of his house and on the second day he made a complaint about this fact to the father of the deceased saying APNE LARKE KO SANBHALO. He further testified that he did not see the deceased at the shop of Ganga Madho accused-appellant during these 25 days prior to this murder i. e. after this incident. He further testified that about 10-15 days prior to the murder of the deceased he asked from Ganga Madho accused-appel lant as to what is the quarrel between him and the deceased, whereupon Ganga Madho accused-appellant told him only this much that the deceased had com mitted Daga (breach of faith) and did not do the right thing. (prakash CHAND NE DAGA KIYA HAL ACHCHA NAHIN KIYA HAP ). (prakash CHAND NE DAGA KIYA HAL ACHCHA NAHIN KIYA HAP ). This reply is read in connection with what has been testified by the witness in regard to the deceased and Km. Vimla goes to show that he was an noyed with the deceased on account of an act of breach of faith done by the deceased. This could have constituted a motive for him to commit or to get committed the murder of the deceased. It may be men tioned here that while the Investigating Officer had taken search of the house of Ganga Madho accused-appellant he had found a number of photographs of an young girl and had also recovered some love letters. The prosecution has of course not connected these photographs and these love letters with Km. Vimla aforesaid. This witness has testified in his cross-examination that he did not ask Ganga Madho accused-appellant as to what Isharebazi was done by Km. Vimla. He explained that he was a person in employment and he did not want opposi tion to develop. He has further said that the father of the deceased was a Zamindar and so he had told the father of the deceased about what he had seen. He ad mitted that he did not make any complaint to father of Km. Vimla. His explanation in this regard is that the father of Km. Vimla must have been knowing about it. This explanation may or may not satisfy the mind but it was not necessary for this witness to have made a complaint to the father of the girl. In his cross-examination he was suggested that Devendra Kumar, father of the deceased, used to arrange insurance business for him (the witness ). The witness had refuted this suggestion. The defence did not suggest a single case of insurance arranged by the father of the deceased. This witness had also refuted the emulation that the father of the deceased was his close friend and that under the pressure of that person he was giving false evidence. There is no reason for this wit ness to have gone out of his way to give evidence of motive against this accused-appellant for the sake of the father of the deceased or under the pressure of the father of the deceased. There is no reason for this wit ness to have gone out of his way to give evidence of motive against this accused-appellant for the sake of the father of the deceased or under the pressure of the father of the deceased. The defence sug gestion to him was that he did not have any talk with Ganga Madho accused appellant that the deceased had committed breach of faith. This suggestion tends to show that there was no specific challenge to the evidence of Isharebazi between him and Km. Vimla. It may be mentioned here that the recovered Photographs have not been proved by the prosecution to be relating to Km. Vimla and the ibve letters have also not been proved by the prosecution to be authored by Km. Vimla. When the recovery was put to Ganga Madho ac cused- appellant in question No. 22 under Section 313, Cr PC he did not make a specific denial about the recovery of these documents, his reply was only of ignorance (MUJHE PATA NAHIHAI ). 48. From the motive testified by the informant and also the evidence of motive given by Onkar Nath Gupta (PW-8), it came out that Ganga Madho was carrying on with Km. Vimla but Prakash Chandra deceased some how came in between and diverted the attention of Km. Vimla towards himself which was not liked by Ganga Madho accused-appellant and con sequently the relations between the deceased and Ganga Madho accused-ap pellant got strained and there was a quar rel between the two, in the course of which the deceased had beaten Ganga Madho accused-appellant and it was on that back ground that Ganga Madho accused-appel lant told Onkar Nath Gupta (PW-8) that he (the deceased) has committed breach of faith and that this has not been good. The cross- examination of Onkar Nath Gupta (PW-8) could not shake him. His replies were natural. He was an independent wit ness and a responsible officer too. Further more it has not been disputed that he lived in front of the shop of Ganga Madho ac cused- appellant and closed to the house of Radhey father of Km. Vimla. So he could have noticed what he claimed to have noticed and asked what he claimed to have asked. So he was a competent witness. There is no reason to doubt his testimony. Vimla. So he could have noticed what he claimed to have noticed and asked what he claimed to have asked. So he was a competent witness. There is no reason to doubt his testimony. So, the prosecution has succeeded in es tablishing motive for Ganga Madho ac cused-appellant for the murder of Prakash Chandra deceased. 49. Now as against Shiv Lal accused-appellant there is further evidence ad duced by the prosecution. There is evidence of the eye-witnesses that Shiv Lal accused-appellant discarded and threw on the ground at the spot the empty cartridge of the fire shot by him by his Tamancha on the deceased. Gangwar I. O. has given evidence at the trial Court finding this empty cartridge (Ex. 1) at the spot which he took into custody and sealed and sent to the Police Station. Then there is the evidence that this accused- appellant was arrested on 21-7-1978 from near the Octroi Post and Mani Kuwan in the town of Bindki at 8 p. m. and on his personal search, country, made pistol. Ex. 1, and 12 live cartridges were recovered from his possession which were taken in custody and sealed at the spot and later on sent to Government ballistics expert. In this regard there was the testimony of I. O. , B. N. Gangwar, Chandra Tewari S. I. PW-9 and Shankar (PW-3 ). It may be said that the meeting of Shanker (PW-3) with the police force was just a coincidence but then considering the evidence of the said three witnesses as a whole, there is no reason to doubt their testimony about this arrest and recovery. Then there was the report of the ballistics expert. It was to the effect that the firing pin marks on the percussion cap of Bet. 14, which is the empty cartridge recovered from the scene of occurrence by the Investigating Officer as mentioned earlier, tally with the firing pin marks on the three cartridges (Ex. 16, Ex. 17 and Ex. 18, fired by him in his laboratory) which were fired from the same pistol, Ex. 1. 50. In this statement under Section 313, Cr PC Shiv Lal accused-appellant denied his arrest and the recovery as set up by the prosecution. As noted earlier, he had set up his alibi and claimed to have been arrested by the police from a private hospital. 1. 50. In this statement under Section 313, Cr PC Shiv Lal accused-appellant denied his arrest and the recovery as set up by the prosecution. As noted earlier, he had set up his alibi and claimed to have been arrested by the police from a private hospital. So, we now turn to the evaluation of this defence plea. He examined Awadh Behari, DW-1, who testified that he (Shiv Lal accused-appellant) used to carry his (the witnesss)tractor from his village to Bindki, and Chandra, but did not take passengers, that some times he himself used to go with Shiv Lal accused- appellant in the tractor and the police and public-men used to try to sit in the tractor but they were not allowed to sit in the tractor, due to which the police once locked him in the lockup of the Police Station Bindki and later on he was prosecuted and fined that even then they did not allow any one to sit in the tractor and the police used to feel ill about it. He has further testified that about one year and five months ago the fingers of his right hand had been injured, that he got the treatment of the same done in Bindki from one Dr. Jai Kumar, that in those days Shiv Lal accused-appellant was in his employment and it was he (Shiv Lal) who used to look after him (the witness), that on the second day after his hospitalisaton in the Hospital of Dr. Jai Kumar at about 8 or 9 p. m. the police had come and arrested Shiv Lal accused appellant from the Hospital of Dr. Jai Kumar and taken him to Police Station Bindki. He further claimed that the same day, he had gone to the Police Station and told the police that he (Shiv Lal accused-appellant) was his servant, that thereupon the police made him to ran away from there and locked up Shiv Lal accused-appellant. He further testified that at the time of the arrest Shiv Lal accused-appellant was not possessing any Tamancha or cartridges. He admitted in his cross-examina tion by the learned State Counsel that he never made any complaint to any officer against the police trying to travel on his tractor. He could not disclose the name of the policemen and public men who wanted to sit at his tractor but were denied the said facility. He admitted in his cross-examina tion by the learned State Counsel that he never made any complaint to any officer against the police trying to travel on his tractor. He could not disclose the name of the policemen and public men who wanted to sit at his tractor but were denied the said facility. He claimed that the police had challaned him showing that he was carry ing passengers on the tractor without authority but no such challan or other papers have been filed to substantiate this claim. He admitted that he did not possess any documentary evidence with him to show that Shiv Lal accused-appellant was in his employment. He also admitted that Dr. Jai Kumar was still alive in Bindki doing private practice. When asked about Likha Padhi about his admission to the hospital of Dr. Jai Kumar and about his treatment, he pleaded only ignorance. He claimed that Dr. Jai Kumar performed operations and had arrangement for the stay of patients. He also claimed that when he was admitted in his hospital there were 4-5 other patients also admitted there. He, however, could not give their names. He could not produce any documentary evidence to show his treatment in the hospital of Dr. Jai Kumar, what to say of adducing any evidence about Shiv Lal ac cused-appellant looking after him in that hospital. He admitted that in his family, there is a younger brother, a paternal uncle and a nephew besides his mother surpris ingly he does not claim, that those persons were looking after him. His claim rather is that it was Shiv Lal accused-appellant alone who was looking after him in that hospital. It is further claimed by this wit ness that he had received injury in his fingers of one hand. No serious injury has been set out that may need his hospitalisaton. Non-production of Dr. Jai Kumar or of the hospital records shows that the story of hospitalisation and treatment in the hospital of Dr. Jai Kumar of this witness is itself a concoction. Further more, even if he had been hospitalised then in the ordinary course his own family members would have looked after him in the hospital but he had excluded them altogether and claimed that it was only Shiv Lal accused-appellant who was look ing after him in that hospital. This also is a doubtful feature of his evidence. Further more, even if he had been hospitalised then in the ordinary course his own family members would have looked after him in the hospital but he had excluded them altogether and claimed that it was only Shiv Lal accused-appellant who was look ing after him in that hospital. This also is a doubtful feature of his evidence. Further more, it has been elicited from him in his cross-examination that the hospital of Dr. Jai Kumar is at a distance of just 200 to 215 paces from the Kali temple, where the occurrence took place. That being so, his evidence could not serve as an alibi. The evidence of alibi is admissible under Sec tion 11 of the Indian Evidence Act, as a fact which is inconsistent with any fact in issue or by itself or in connection with other facts make the existence or non-existence of any fact in issue highly probable or improbable. It has been elicited from this witness that the persons who used to look after the patient in that hospital often did go out from the hospital for easing them selves or urinating or for purchasing fruits etc. from the market for the patient whom they were attending. So the commission of the offence by this accused- appellant could be even consistent with his presence in the hospital of Dr. Jai Kumar in connec tion with looking after of this witness if he was really hospitalised there. The persons looking after the patients could go out from the hospital as many times as they liked without any restriction. 51. Regarding his arrest from the camp of that hospital also the evidence of this witness cannot be given any credence. If really the arrest of this accused-appel lant (Shiv Lai) had been made from that hospital, it must have become a glaring fact and Dr. Jai Kumar would have been the best witness about it who could say that this witness was hospitalised in that hospi tal and that Shiv Lal, accused-appellant was looking after this witness and that he was arrested by the police from there. To avoid the charge of withholding Dr. Kumar, he said that when the police ar rested Shiv Lal accused-appellant Dr. Jai Kumar was inside his room and this ac cused-appellant was arrested from outside at distance of 20 paces from there. To avoid the charge of withholding Dr. Kumar, he said that when the police ar rested Shiv Lal accused-appellant Dr. Jai Kumar was inside his room and this ac cused-appellant was arrested from outside at distance of 20 paces from there. He then claimed that the doctor had himself seen the accused-appellant being arrested from the hospital by the police and being taken away. Yet he did not exmaine Dr. Jai Kumar in support of his claim. He stated that though at the time of arrest Dr. Jai Kumar and as many as 10-15 men of public were present, none objected to the same except he himself. In the ordinary course, if his arrest has been made from there the doctor would have objected and asked the police as to what was the matter. So the testimony of this witness as given at the trial is not worthy of credence. He (Awadh Behari PW-1) admitted that he did not make any complaint to any public authority about this arrest of Shiv Lal ac cused-appellant from that hospital. 52. The claim of the prosecution is that this accused-appellant Shiv Lal was not in his (Awadh Beharis) employment at the time. The prosecution also claimed that he is giving evidence in favour of this accused-appellant due to association with him. Taking that this accused-appellant was in his employment then on account of it he could have been impelled to give evidence in his favour. In any view of the matter no part of his (Awadh Behari (DW-1 s)) evidence can be accepted. 53. Awadh Behari DW-1 claimed en mity with the police but if it were so the police would falsely implicate him in this case and not his servant Shiv Lal accused appellant. It was suggested to the inform ant in his cross-examination that he tried to sit on the tractor of Awadh Behari driven by Shiv Lal accused-appellant but Shiv Lal did not allow him to sit and due to this refusal, he felt enmity with Shiv Lal accused appellant and had threatened Shiv Lal that he would teach him a lesson when he would drive the tractor in Bindki. The informant has refuted the suggestion. The informant has refuted the suggestion. Moreover, if a person driving a tractor did not permit, third person to sit on it, it was a trifling matter which no one will take to his head so as to lead him to falsely implicate the driver of the tractor in a case of murder. Panchm PW-2 and Shanker PW- 3 were not suggested in their cross-examination that they had requested Shiv Lal accused- appellant to allow them to travel on the tractor of Behari driven by him but he did not oblige. In his statement under Section 313, Cr PC this accused appellant claimed that the prosecution witnesses of the case several times asked him to permit them to sit on the tractor but he did not allow them to do so. No reliance can be placed on the claim made by him. 54. So far as the confession recorded by Laxmi Narain Kureel, Executive Magistrate (PW-6) is concerned, the learned Sessions Judge discarded it be cause it could not be accepted as a volun tary statement free from any inducement, threat or promise observing that the learned Magistrate ought to have refused to take down the statement of the accused at the time it purported to be taken by him (10. 45 p. m.) soon after his arrest as there was hardly time between the arrest of the accused and his presentation before him within which he could have considered the pros and cons of the situation and come to the conclusion as to whether he should or should not make a confessional statement. No exception could be taken to the view taken by the learned Sessions Judge and it is only proper in this case to leave entirely out of account the judicial confession of the accused-appellant recorded by the said Executive Magistrate. However, in our view, it does not affect the rest of the prosecution evidence against the present accused-appellant which is entirely free from doubt. 55. Now in view of the above discus sion so far as Shiv Lal accused-appellant is concerned it cannot be doubted that the offence under Section 302, IPC simplifier has been made out by the prosecution evidence. 56. So far a Ganga Madho accused-appellant is concerned, the offence under Section 302/34, IPC has been made out. 57. 55. Now in view of the above discus sion so far as Shiv Lal accused-appellant is concerned it cannot be doubted that the offence under Section 302, IPC simplifier has been made out by the prosecution evidence. 56. So far a Ganga Madho accused-appellant is concerned, the offence under Section 302/34, IPC has been made out. 57. Kaley, co-accused, had been given the benefit of doubt by the trial Court and the prosecution has not preferred any ap peal against his acquittal. So the matter rests there as regards Kaley co-accused. 58. The learned Senior Advocate ap pearing for Ganga Madho accused-appel lant has argued that in this case the deceased had been shot at by just one person and the said shot had caused his death and that Ganga Madho accused-ap pellant as also Kaley co- accused had been implicated in this case falsely giving them ornamental roles. He also argued that Kaley having been acquitted. This Ganga Madho accus id-appellant should also be given an acquittal. 59. We have considered this aspect of the case. The role of Ganga Madho ac cused-appellant was not similar to the role of Kaley co-accused. As per prosecution case, Kaley co-accused was not said to be carrying any weapon and no exhortation or other act was imputed to him by the prosecution. Furthermore, there was pos sibility of false implication of Kaley co-ac cused because it has come in the evidence of informant Radhey Shyam (PW-1) that a quarrel had taken place between Pramod, real brother of Prakash Chandra deceased, and Kaley co-accused, prior to the murder about which the police had instituted a case against Kaley co-accused. So the learned Sessions Judge did nothing wrong in giving benefit of doubt to Kaley, accused wrong in giving benefit of about to Kaley, co-accused by way of abundant precaution. The case as against Ganga Madho accused-appellant was on an en tirely different footing. It was Ganga Madho accused-appellant who had a strong motive to do away with the deceased. Shiv Lal accused-appellant is not shown to have any motive of his own as against the deceased to have committed the murder in broad day light. The case as against Ganga Madho accused-appellant was on an en tirely different footing. It was Ganga Madho accused-appellant who had a strong motive to do away with the deceased. Shiv Lal accused-appellant is not shown to have any motive of his own as against the deceased to have committed the murder in broad day light. Now the prosecution evidence establishes that Shiv Lal accused-appellant came to the scene of occurrence in the company of Ganga Madho accused-appellant and both of them were carrying country made Tamancha in their hands and both of them levelled their Tamancha towards the deceased in close proximity with his body and further both of them fired their Tamanchas one after the other. It was a mere chance that the Tamancha fired by Ganga Madho accused-appellant misfired and only the fire shot by Shiv Lal accused-appellant struck the deceased and caused his death. Furthermore, there is evidence that both the accused-appellants ran away from the spot simultaneously. In the present case the exhortation by Ganga Madho accused-appellant had meaning and significance in the background of the motive. Ganga Madho accused-appellant made the exhortation and thereby im pelled Shiv Lal accused-appellant to act. As noticed above Shiv Lal accused- appel lant did not have a motive of his own against the deceased, in all probability he was a hired assassin. In these circumstan ces, we are unable to accept the contention of learned Senior Advocate that the role of Ganga Madho accused-appellant in this case was ornamental. 60. Next the learned Senior Advocate has argued that Ganga Madho cannot be convicted of the offence under Section 302/34, IPC or of any offence because he had committed no act at all. He claims that misfire is not equivalant to an act as it may be that the Tamancha was defective or that the cartridge was defective or that the trigger was not properly pressed by the person holding. He claimed that it is only when the fire went out from the barrel of the Tamancha that the action of the culprit could be construed an act. 61. We have no other option but to repel the contention of the learned Senior Counsel that the alleged acts of this ac cused- appellant at the time of occurrence did not amount to an act. 61. We have no other option but to repel the contention of the learned Senior Counsel that the alleged acts of this ac cused- appellant at the time of occurrence did not amount to an act. Section 32 of the Indian Penal Code states that unless a contrary intention appears from the con text, words which refer to acts done extend also to illegal omissions. An act generally means something voluntarily done by a person. Act is a determination of the will, producing an effect in the sensible world. This word includes writing and speaking, or in short, any external manifestation, in the Code. Section 33 of the Indian Penal Code states that the word act denotes as well a series of act, as a single act. In other words the word act does not mean only any particular, specific instantaneous act of a person but denotes as well a series of acts. (See Om Prakash v. State, AIR 1961 SC 1782 ). Section 34 of the IPC provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such per sons, is liable for that act in the same manner as if it were done by him alone. The effect of Section 32 and Section 33 taken together is that the term act com prises one or more acts or one or more illegal omissions. Where an accused per son commits two or more acts, closely fol lowing upon and intimately connected with each other they cannot be separated and assigned the one to one intention and the other to another but must be ascribed to the original intention which prompted the commission of those acts and without which neither could have been done (Nehal Mahto, AIR 1939 Pat. 625 ). 62. Section 34 lays down a principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of common intention animating the accused persons leading to the doing of a criminal act in furtherance such intention. 625 ). 62. Section 34 lays down a principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of common intention animating the accused persons leading to the doing of a criminal act in furtherance such intention. It deals with the doing of separate acts, similar or diverse by several persons, if all are done in furtherance of the common intention, each person is li able for the result of them all as if he had done them himself, for "that Act" and "if" in the latter part of the section must in clude the whole action covered by a "criminal Act" in the first part, because they refer to it (see Barendra Kumar Ghose, AIR 25 PC 1 ). The essence of the joint liability under Section 34, IPC is the existence of a common intention and par ticipation in the commission of the offence in furtherance of the common intention. It is not necessary that each act be done by each participant. Different acts are often done by different persons acting in fur therance of their common intention and the offence is the cumulative result of all the acts of the participants. The person who directly inflicts the injury which causes the death is liable for the offence without recourse to Section 34 of the IPC but the other participants who have done diverse other acts also become liable for the act of that person which actually caused the injury, with the help of Section 34, IPC because the existence of the com mon intention makes those others also liable even though they have not inflicted the actual injury on the body of the deceased. That being the position, the ar gument about misfire is simply miscon ceived. If Ganga Madho accused-appel lant had simply stayed at the spot levelling his weapon and had made the retort im puted to him indicating the common in tention, he would even then be liable for the murder with the help of Section 34, IPC. The act of firing of shot with the Tamancha though the cartridge mis- fired is only one more act on the part of Ganga Madho accused-appellant leaving no doubt about the common intention with which both the accused-appellants had come to the spot armed with fire arms and cartridges. 63. The act of firing of shot with the Tamancha though the cartridge mis- fired is only one more act on the part of Ganga Madho accused-appellant leaving no doubt about the common intention with which both the accused-appellants had come to the spot armed with fire arms and cartridges. 63. Thus, in this case, there cannot be any doubt that the whole series of acts of Ganga Madho and Shiv Lal accused-ap pellants in coming together to the spot armed with country made pistols and live cartridges, report of Ganga Madho ac cused appellant and the fire of Tamancha by each and inflicting the injury to the deceased by the Tamancha fired by Shiv Lal accused-appellant amounted to doing a criminal act by both of them in furtherance of common intention of both of them to commit the murder of the deceased and both of them are liable for that act in the same manner as it was done by him alone. So, it cannot be said that the offence committed by Ganga Madho accused-appel lant was in any way less than the offence under Section 302/34, IPC. 64. The learned Senior Advocate had referred to Section 307 Illustration c of the IPC which runs as follows: " (c) A intending to murder Z, busy a gun and loads it. A has not yet committed the of fence. A fires the gun at Z. He has committed the offence defined in this section, and, if by such firing he wounds Z, he is liable to the punishment provided by the latter part of (the first paragraph of) this section. " This illustration cannot be of help to this accused-appellant for the simple reason that it relates to a case where there is a sole assailant. In this illustration death has not been caused by the offender. Here the offender Shiv Lal accused-appellant, has caused the death of the deceased and Ganga Madho accused- appellant, be comes liable for murder with the help of Section 34, IPC as there was common in tention animating the act of both the ac cused-appellant. They had participated in the action. The participation amounted to a criminal act as contemplated in Section 34ofipc. 65. They had participated in the action. The participation amounted to a criminal act as contemplated in Section 34ofipc. 65. Before we close, we may make a reference to the authority Piare Dusadh and others v. Emperor, AIR (31), 1944 Federal Court-I, relied upon by the learned Senior Counsel is support of his proposition that there could be 100 reasons for false implication of an accused and that it was not for the accused to explain why their names have been men tioned by the prosecution witnesses as the persons who had participated in the occurrence. It is true that the accused did not have to show why he has been falsely impli cated and it is for the prosecution to estab lish the guilt of the accused. In the present case, the prosecution has succeeded in es tablishing the guilt of the accused-appel lant. 66. So there is no force in these ap peals and consequently, both the appeals are dismissed and the conviction of both the accused- appellants and also their sen tences of life imprisonment awarded by the learned Sessions Judge are upheld. Both the accused-appellants are in jail custody. They shall serve out their sentences according to law. 67. Let a copy of this judgment be sent to the Sessions Judge concerned for information and compliance. Compliance report be submitted to this Court within a month from today. Appeal dismissed. .