N. S. GUPTA, J. Accused appellants Jai Jai Ram, Ram Chandra and Girdhari, who were convicted by judgment and order dated 21-5-1980 by Sri P. K. Jain, the then Vth Additional District and Sessions Judge, Famikhabad in S. T. No. 382 of 1979 under Section 302/34 and Section 394/397, IPC and were sentenced to im prisonment for life under the first count and 7 years R. I. under the second count, have come up in appeal before this Court. 2. The prosecution story, briefly stated is as follows : 3. The deceased Anokhey Lal was the resident of Mohalla Karamat Khan P. S. Kotwali District Farrukhabad. Accused appellants Jai Jai Ram and Girdhari were also residents of the same Mohalla. Ac cused appellant Ram Chandra was a resi dent of village Dariyapur, to which village the deceased originally belonged and where the deceased had his own house. 4. The incident of this case took place on 20-3-1979 at about 7. 30 p. m. when the deceased was sitting in the court-yard of his house and was rubbing oil on his mus cles. A lantern was burning there. Om Prakash PW-1, son of the deceased was sitting near the kitchen of his house. His wife Smt, Vimla Devi PW-7, mother and cousin brother Murari Lal PW-4, Khusi Ram were also sitting there. Smt. Vimla Devi PW-7 was cooking meals and the mother of Om Prakash (PW-1) was serv ing the same. A lamp was burning inside the kitchen. The accused appellants en tered into the house of the deceased from the main gate, when the deceased asked the purpose of their visit. Accused Jai Jai Ram demanded key of the boxes. When the deceased Anokey Lal refused to hand over the Keys, Accused appellant Jai Jai Ram flashed torch-light upon him. Ram Chandra assaulted the deceased by means of fists over the head of the deceased. Om Prakash PW-1, son of the deceased Murari Lal PW-4 and Khusi Ram challenged the caused persons. They also flashed torch -light on the accused persons and saw that the accused appellants Jai Jai Ram was armed with a country made pistol and a torch while the accused appellants Gird hari and Ram Chandra were also armed with country made pistols. One of the as sociate of the accused appellants was standing over the main gate. His name was not known. One of the as sociate of the accused appellants was standing over the main gate. His name was not known. Jai Jai Ram threatened the inmates of the house. When the inmates of the house tried to come out from the house, the man standing on the main gate restrained them from coming out. The deceased Anokhey Lal caught hold of the accused appellant Girdhari, whereupon Girdhari opened fired by means of his country made pistol and caused injuries to the deceased. Accused Ram Chandra snatched away the ear-ring made of gold from the wife of Om Prakash. On hearing noise about this incident, Chheda Lal PW-5 Ram Bharosey, Babu Lal and Lakh Singh etc. came. All these persons were armed with Lathis and were having torches in their hands, which they had flashed. The bandit who was standing on the main gate did not permit the villagers to enter inside the house. Thereafter the accused appellants and their associate went away abusing inmates of the house of the deceased towards north. The villagers tried to chase the accused appellants. Thereupon accused appellants Jai Jai Ram and Ram Chandra again opened fire by means of their respective pistols and caused injuries to Ram Bharosey and Chheda Lal PW-5. The accused appellants left away a bag, a torch, two live cartridges and a towel in the court-yard of the de ceased and an empty cartridge of 12 bore was also found in the court-yard of the deceased. ; 5. A FIR Ex. Ka-1 was written by Om Prakash, son of the deceased on the dicta tion of his father Anokhey Lal deceased. Om Prakash PW-I took the deceased, in jured Chheda Lal and Ram Bharosey Lal to the police station Kotwali where he lodged the report Ex, Ka-1 at about 8. 30 p. m. on 20-3-1979, that is just within an hour of the occurrence. 6. On the basis of the first information report Ex. Ka-1, head constable Deoki Nandan Awasthi prepared the chick report and G. D. report. 7. The investigation of the case was immediately taken up by S. I. Bachau Lal Gupta, The deceased and injured were referred for medical examiantion to the civil hospital Farrukhabad. Dr. Vijai Varma PW-9 examined the deceased and the injured and found the following inju ries on their persons, on 20-3-79 at 9. 10 p. m. , 9. 7. The investigation of the case was immediately taken up by S. I. Bachau Lal Gupta, The deceased and injured were referred for medical examiantion to the civil hospital Farrukhabad. Dr. Vijai Varma PW-9 examined the deceased and the injured and found the following inju ries on their persons, on 20-3-79 at 9. 10 p. m. , 9. 25 p. m. and 9. 45 p. m. respectively. Injuries on the person of Anokhey Lal (1) Fire arm wound 1-1/2" x l-]/2" ab dominal cavity deep over right side abdomen, 5" lateral to mid line 8" below the right nipple with blackening and scorching around it. Blackening over Kurta present which is to be sealed and sent to S. O. Kotwali Farrukhabad. (2) In the opinion of the doctor, the aforesaid injury was caused by fire arm, its duration was fresh and was kept under observation. Injuries on the person of Chheda Lal (1) Fire arm wound each of 1/8" x 1/8" muscle to skin deep over front of left fore arm in the area of 4- 1/2" x 2". (2) One fire arm wound 1/8" x 8" muscle deep over front of left upper arm lower part 1-1/4" above the left elbow joint. (3) Two fire arm wound 1" apart each other, each of 1/8" x 1/8" muscle deep over left chest near the left nipple. (4) One fire arm wound 1/8" x 1/8" x skin deep over left side chest 5" below the left exila. Pallet palpable. In the opinion of the doctor, all the injuries were simple except injury No. 3. which was kept under observation and was adivsed X-ray. The duration of the injuries was fresh. Injuries on the person of Ram Bharosey (1) One fire arm wound of 1/8" x muscle deep over left side chest 3-1/2" above the left nipple. (2) Two fire arm wound 3/4" apart each 1/8" x 1/8" x skin to muscle deep one pallet palpable over left side abdomen 6-1/2" lateral to amblicus. (3) One fire arm wound of 1/8" x 1/8" x skin deep pallet palpable over left lower leg inner side 3" above the inner ankle joint. In the opinion of the doctor, all the injuries were simple caused by fire arm except injury No. 1 which was kept under observation and was advised X-ray. The duration was fresh. 8. (3) One fire arm wound of 1/8" x 1/8" x skin deep pallet palpable over left lower leg inner side 3" above the inner ankle joint. In the opinion of the doctor, all the injuries were simple caused by fire arm except injury No. 1 which was kept under observation and was advised X-ray. The duration was fresh. 8. It appears that the condition of the deceased Anokhey Lal became precarious, the doctor, therefore, advised him to be removed to District Hospital Fatehgarh District Farrukhabad. The deceased suc cumbed to his injuries at about 1. 30 a. m. in the night while he was being taken to District Hosptial Fatehgarh. 9. The post-mortem examination on the dead body of the deceased was con ducted by Dr. S. C. Govil PW-2 on 21-3-1979 at about 4 p. m. The doctor found that the deceased was aged about 55 years. One day had passed of his death. He found the following ante-mortem injuries on his per son : (1) Gun shot wound of entry 1-1/2" x 1-1/2" abdomen cavity deep present right side abdomen 5" away from umblicus at 9 Oclock position margins inverted. Blackening present. Intestine coming out. Direction front to back. (2) Two abrasions each measuring 1" x 1/4" present back of right elbow. On internal examination, the doctor found that peritoneum was lacerated and cavity contained 60 Ml blood. Small and large intestines were lacerated. The doctor opined that the deceased had died due to shock and haemorrhage, which resulted from the aforesaid ante-mortem injuries. 10. The Investigating Officer S. I. Bachau Lal Gupta recorded the statement of Anokhey Lal as also his son Om Prakash since after lodging of the first information report. He also recorded the statements of injured Chhcda Lal etc. He rushed to the scene of occurrence and re corded the statement of Smt. Vimla, wife of Om Prakash on 21-3-1979. He in spected the scene of occurrence on the pointing out of Om Prakash and prepared site plan Ex. Ka-17. He recovered a pair of shoes Ex. 7. He also recovered blood stained and simple earth from the scene of occurrence and prepared recovery memos about the same. He recovered two live cartridges and one empty cartridge from the court-yard of the deceased. Ka-17. He recovered a pair of shoes Ex. 7. He also recovered blood stained and simple earth from the scene of occurrence and prepared recovery memos about the same. He recovered two live cartridges and one empty cartridge from the court-yard of the deceased. He recov ered a bag containing bed sheet as also a towel and a torch from the scene of occur rence and prepared recovery memo Ex. Ka 4 about the same. He also inspected the torches of Om Prakash and Murari Lal in the light of which they had seen the cul prits. Those torches were in working order and after preparing Supardgi-nama about the same, he gave the said torches in the Supardgi of Om Prakash. He also in spected the lantern and lamp burning at the place of occurrence and prepared the recovery memo Ex. Ka 7 about the same and gave the same in the Supardgi of Om Prakash. He thereafter recorded the state ments of the witnesses of inquest report Murari Lal PW-4 and other witnesses on 21- 3-1979. S. I. Bachau Lal arrested the accused appellant Girdhari. Since the other accused appellants were not avail able, he obtained processes under Section 82/83, Cr PC. It appears that accused Ram Chandra and Jai Jai Ram surrendered be fore the court. After concluding the inves tigation. S. I. Bachau Lal submitted charge sheet against the accused appellants. 11. After committal of the case to the Court of Sessions, the case came up for trial before the then Vth Additional Ses sions Judge, Farrukhabad, who framed charges under Sections 394/397 and 302/34. IPC against the accused appel lants. 12. The accused appellants pleaded not guilty and claimed trial. Accused ap pellant Jai Jai Ram pleaded that the police was against him and, therefore, he has been involved in this case. Accused appel lant Ram Chandra pleaded that he has been falsely implicated in this case at the behest of one Ram Bharosey, who was resident of his village and who was related as nephew of Rajaram and Jagdish against whom he had given evidence in a revenue case. He further stated that the witnesses did not know him since before. He claimed identification but the same was refused. 13. Accused appellant Girdhari pleaded that one Smt. Vimla Tiwari was former M. L. A. She belonged to Congress Party and bore enmity with him. He further stated that the witnesses did not know him since before. He claimed identification but the same was refused. 13. Accused appellant Girdhari pleaded that one Smt. Vimla Tiwari was former M. L. A. She belonged to Congress Party and bore enmity with him. He pleaded that the prosecution witnesses were the persons belonging to the party of Smt. Vimla Tiwari. He has, therefore, been falsely implicated in the case. He pleaded that he was arrested on 21-3-79 at 12 noon. 14. Accused appellants examined Jag Mohan Lal Reader of the court of the Chief Judicial Magistrate Fatehgarh who proved application paper No. 8 Kha 1 which was surrender application moved on behalf of the accused appellant Ram Chandra containing the orders of the then Chief Judicial Magistrate Farrukhabad stating as under: "vanchhit hirashat mai liya jay, Bapurdah. " Ex. Kha 2 and Kha 3 are orders passed by the Chief Judicial Magistrate directing S. H. O. Farrukhabad to get the identification parade held of accused appellant Ram Chandra and the report of the police that since the ac cused was named in the first information re port, the identification was not required. 15. After needful trial into the matter, the learned trial Judge convicted and sen tenced the accused appellants as aforesaid; hence this appeal. 16. We have heard Sri Vinai Saran, learned counsel for the accused appellants and Sri A. K. Varma, learned A. G. A. on behalf of the State; considered their con tentions and have gone through the record of the case. 17. Four witnesses of fact, namely, Om Prakash PW-1, Murari Laj PW-4, Chheda Lal, injured, PW-5 and Smt. Vimla Devi, wife of the informant Om Prakash, PW-7 were examined by the prosecution before the court below. 18. Om Prakash PW-1 is the son of the deceased Murari Lal, PW-4 was his cousin brother, being son of his mothers sister and PW-7 Smt. Vimla Devi was the wife of Om Prakash. All these three wit nesses were inside the house when the accused appellants entered into the house of the deceased. The statements of these witnesses are clear and consistent on the point tiiat on the dale of occurrence at about 7. 30 p. m. the deceased Anokhey Lal was rubbing oil on his muscles. All these three wit nesses were inside the house when the accused appellants entered into the house of the deceased. The statements of these witnesses are clear and consistent on the point tiiat on the dale of occurrence at about 7. 30 p. m. the deceased Anokhey Lal was rubbing oil on his muscles. The ac cused appellants entered into the house when the deceased asked the accused ap pellants as to how they have entered into the house, accused appellan Jai Jai Ram flashed torch-light upon the deceased Anokhey Lal and demanded keys from Anokhey Lal. When Anokhey Lal did not give the keys of the house then the accused appellant Ram Chandra slapped the de ceased in the head and Ram Chandra re moved ear- rings from the ears of Smt. Vimla Devi PW-7 Om Prakash, Khusi Ram and Murari Lal who were present in the house flashed torch-light upon the ac cused appellants. The source of light of lantern and lamp was already there. The deceased Anokhey Lal caught the accused appellant Girdhari. Accused appellant Girdhari in a bid to get himself released from the clutches of Anokhey Lal opened fire upon Anokhey Lal by means of coun try made pistol cuasing injuries on the abdomen of the deceased. The inmates of the house raised alarm and thereupon at tracted Chheda Lal. Ram Bharosey, Babu Ram and others. Accused appellants ran away. The accused appellants opened fire upon villagers while running away from the spot and caused injuries to Ram Bharosey and Chheda Lal as noted above. It is clear from the statement of Om Prakash PW-1 that after escape of the ac cused appellants, his father Anokhey Lal dictated a report Ex. Ka 1 to him which he took to the police station along with his injured father and injured witnesses. A persual of the first information report Ex. Ka 1 shows that it was signed by Anokhey Lal. The meticulous details about the oc currence as also the names of the accused appellants; their individual overt act and source of light of lantern lamp and torches have been duly mentioned in this first in formation report. Anokhey Lal having died in the night of the occurrence at about 1. 30 a. m. , this first information report would be admissible in evidence also under Section 32 of Indian Evidence Act. Anokhey Lal having died in the night of the occurrence at about 1. 30 a. m. , this first information report would be admissible in evidence also under Section 32 of Indian Evidence Act. Om Prakash PW-1 stated in his cross-examiantion before the court below thai after sustaining the gun shot injuries, his father did not become unconscious. He was taken to the police slation after half an hour or so. It was averred by Dr. Vijai Varma PW-9 (hat after sustaining the in juries, Anokhey Lal could have remained conscious for 3-4 hours. He stated that he could have remained in the position to speak and to walk. He maintained that after sustaining the injuries in the intes tines, the deceased could have remained in a position to speak. So the deceased could have well dictated the first information report Ex. Ka 1. Since prosecution version that all the three accused persons came duly armed with country made pistols; that the accused appellant Ram Chandra first assaulted the deceased by means of fists and in his head and thereafter accused appellant Girdhari opened fire upon the deceased with a view to get himself re leased from the clutches of the deceased and further that Ram Chandra snatched away the ear-rings of Sml. Vimla Devi and that the accused appellant Jai Jai Ram demanded the keys of the boxes and fur ther fact that their fourth associate re mained standing on the main gate of the door of the deceased with country made pistol in his hand giving threats to the villagers for killing them if they tried to enter into the house of the deceased fully go to show that the accused appellants and their fourth associates came to the house of the deceased on the fateful night of the occurrence for committing robbery of the valuables from the house of the deceased. 19. 19. The circumstance that soon after the occurrence the deceased Anokhey Lal and the injured Chheda Lal and Ram Bharosey went to the police station and from police station to the Civil Hospital Farrukhabad where they were medically examined and the circumstance that on their medical examination fire arm inju ries were found on the person of these three persons fully prove that the accused appellants had entered the house of the complainant for the purpose of committing robbery by putting the inmates of the house under the fear of instant death. The circumstance that Anokhey Lal ultimately succumbed to his injuries after few hours of the occurrence right in the night of the occurrence fully prove that the accused appellants were responsible for the occur rence in question. 20. It was aruged on behalf of the de fence that the injured witness Chheda Lal has not named any of the accused appel lants and that the other injured Ram Bharosey was not at all examined by the prosecution before the court below and therefore, the prosecution story should be discarded. We are unable to agree. When as many as 3 witnesses of fact, namely, Om Prakash PW-1, Murari Lal PW-4 and Smt. Vimla Devi PW-7 who were all in mates of the house and have specifically stated about the fact of robbing ear-rings of Smt. Vimla Devi by accused appellant Ram Chandra and about opening of fire by means of country made pistol by accused appellant Girdhari and overt act of accused appellant Jai Jai Ram for demanding keys of the boxes of the deceased, the factum of robbery stands fully proved. The use of country made pistol by the offenders for causing death of the deceased Anokhey Lal and hurt to Chheda Lal and Ram Bharosey makes that offences are the more grave and makes the accused appellants liable for punishment for committing the offence punishable under Section 394/397, IPC. The statements of Om Prakash PW-1, Murari Lal PW-4 and Smt. Vimla Devi having found full corroboration by the medical evidence of two medical officers, namely, Dr. S. C. Govil, who had con ducted post- mortem examination of the deceased and Dr. Vijai Varma PW-9 who initially examined the injuries of Anokhey Lal, Chheda Lal and Ram Bharosey lends assurance into the credibility of the state ments of these witnesses. 21. S. C. Govil, who had con ducted post- mortem examination of the deceased and Dr. Vijai Varma PW-9 who initially examined the injuries of Anokhey Lal, Chheda Lal and Ram Bharosey lends assurance into the credibility of the state ments of these witnesses. 21. The circumstance that soon after the occurrence Om Prakash PW-1 wrote a detailed report about the occurrence at the dictation of his father stating therein all the meticulous details about the occurrence leave no room to doubt the veracity of the prosecution case on the point that all the three accused appellants alongwith their fourth associate had gone to the house of the deceased for the purpose of committing robbery duly armed with deadly weapons and with an intention of causing death or grievous hurt to any person who try to resist them and the circumstance that Anokhey Lal succumbed to his injuries within a few hours of the occurrence fully prove the guilt of the accused appellants under Section 304/397, IPC beyond shadow of doubt. 22. Thus the finding of fact recorded by the court below regarding guilt of the accused appellants in respect of the offence punishable under Section 394/397, IPC appears lo be quite correct and is accord ingly sustained. 23. Coming on the point as to whether the accused appellants had intentionally committed the murder of the deceased, we find that according to the statements of Om Prakash PW-1, Murari Lal PW-4 and Smt. Vimla Devi PW-7, accused appellant Girdhari had opened fire upon the de ceased when the deceased had caught him while in the bid to escape. The circum stances that soon after entering into the house of the deceased, one of the accused appellant demanded the keys of the boxes and the other accused robbed the ear-ring of Smt. Vimla Devi fully go to show that the main intention of the accused appellant was to commit robbery and not to commit murder of the deceased. Thus it is obvious that the murder of the deceased was committed without pre-meditation and in sudden fight. Thus it is obvious that the murder of the deceased was committed without pre-meditation and in sudden fight. That being so, we are of the opinion that the act of the murder of the deceased by the accused appellant would amount to culpable homicide not amount ing to murder and, therefore, we consider it proper to alter the sentence of the ac cused appellants from Section 302/34, IPC to one under Section 304 (1)/34, IPC. 24. Coming on the point of sentence, we find that the accused appellants having committed robbery with deadly weapons and during the course of said robbery caused hurt to Anokhey Lal, Chheda Lal and Ram Bharosey, the minimum sentence awarded by the Court below under Section 394/397, IPC appears to be quite correct and warrants no interference. As regards the punishment under Section 304 (1), IPC, we direct that the accused appellants shall undergo R. I. for a period of 7 years each under Section 304 (1), IPC. Both the sen tences shall run concurrently. 25. In the result, the appeal fails and is hereby dismissed, subject to the afore said modifications. The bail granted to the accused appellants is hereby cancelled. The Chief Judicial Magistrate Farrukhabad is directed to get the accused appel lants arrested and to commit them to prison to serve out their sentence accord ing to law. 26. Let a copy of this judgment along with the record of the case be sent to the court below for needful compliance within three months. Appeal dismissed. .