Judgment 1. The appellants herein were tried by the 2nd Addl. Sessions Judge, Munger in Sessions case No. 193 of 1984 charged of the offences under Sec. 302/34, IPC and under Sec. 27 of the Arms Act. By his judgment and order dated 15th January, 1987, the Trial Court has found them guilty of the offence under Sec. 302/34, IPC and sentenced each one of them to undergo rigorous imprisonment for life. They have also been found guilty of the offence under Sec. 27 of the Arms Act and have been sentenced to undergo two years rigorous imprisonment on that count. The sentences have been directed to run concurrently. 2. An occurrence is said to have taken place on the evening of 20th January, 1984 at village Nawabganj which lies within the jurisdiction of police station Surajgarha. In that occurrence, deceased Radhey Ram is said to have been shot dead by the appellants, while informant Dhanchand Ram, P.W. 5 (brother of the deceased), is alleged to have received pellet injuries. Dhanchand Ram, P.W. 5 lodged the first report regarding the occurrence at the Surajgarha Police Station at 8.15 p.m. shortly after the occurrence. The Police Station is said to be at a distance of about 8 Kms. north of the place of occurrence. In the report lodged by the informant, it was stated by Dhanchand Ram, P.W. 5, that shortly before the lodging of the report, he along with his brother Radhey Ram, Chowkidar, his son Vijoy Ram, P.W. 2 and his nephew Sudhir, P.W. 1 (son of the deceased) was sitting in their Gohal and were gossiping. Suddenly, the four appellants came towards the Gohal raising hulla and challenging Radhey to come out. Hearing the hulla, he as well as his brother Radhey (deceased) ran away from the Gohal, but the appellants fired at them and Radhey fell down. He was bleeding and died soon thereafter. The assailants ran away towards the west. The informant claimed that he had also received pellet injuries. The cause of the occurrence as alleged in the report was that earlier in the morning, there was exchange of abuses between the appellants and Radhey. The said report was given at 8.15 p.m. 3. Ramendra Nath Jha, P.W. 12, who was Officer Incharge of the police station, after recording the report sent the informant for medical examination. The cause of the occurrence as alleged in the report was that earlier in the morning, there was exchange of abuses between the appellants and Radhey. The said report was given at 8.15 p.m. 3. Ramendra Nath Jha, P.W. 12, who was Officer Incharge of the police station, after recording the report sent the informant for medical examination. He proved the requisition written by him which was marked as Ext-3. He went to the place of occurrence at 9.15 p.m. and found the dead body of Radhey. He prepared the inquest report, which has been proved by him, and thereafter, inspected the place of occurrence. He found that there was lot of blood near the dead body and he also found three empty cartridges and some blood fallen on the ground. He had seized those items in the presence of witnesses. He despatched the dead body of Radhey for post-mortem examination to the Sadar Hospital at Munger. He investigated the case till he handed over charge to another Investigating Officer on 10th of February, 1984. In cross-examination, he sated that the place where he found blood was 5 to 7 yards from the Gohal. On reaching the place of occurrence, he first prepared the inquest report and thereafter, examined witness Vijoy Ram, P.W. 2. Thereafter, he inspected the place of occurrence and then recorded the statement of witness Sudhir, P.W. 1. He had further examined the informant on 22nd of January 1984. It is not necessary to refer to the details about the place of occurrence as stated by this witness because he has stated that he was in some confusion about the direction, and, therefore, the directions noted by him may not be correct. However, there is consistent evidence of the witnesses as to the location of the house of the deceased, the houses of other villagers, the Gohal and the place of occurrence. 4. Several eye-witnesses have been examined by the prosecution in support of its case. Sudhir Ram, the son of the deceased was examined as P.W. 1. He stated that on the night of occurrence, he was in the Gaushala with his cousin Vijoy P.W. 2 father Radhey (deceased) and his uncle Dhanchand, the informant. P.W. 5. They were all sitting there and warming themselves around the Borsi as it was winter night. Sudhir Ram, the son of the deceased was examined as P.W. 1. He stated that on the night of occurrence, he was in the Gaushala with his cousin Vijoy P.W. 2 father Radhey (deceased) and his uncle Dhanchand, the informant. P.W. 5. They were all sitting there and warming themselves around the Borsi as it was winter night. He heard the appellants coming and challengings his father to come out saying that he had been informing the police against them. Hearing the challenges thrown by the appellants, his father Radhey ran out of the Gaushala and so did his uncle Dhanchand, P.W. 5. When his father Radhey had just come out of the Gaushala and was at a short distance from the Gaushala, the appellants fired at him and he fell down. Thereafter, the appellants also assaulted his father with the butt of the guns carried by them. One Brahma Dharhi also arrived and he also assaulted his father with a lathi. His uncle Dhanchand was also fired at by the appellants and his uncle had fallen on the ground and then got up and ran away. His father Radhey died on the spot whereafter all the appellants ran away towards the north. He further stated that earlier in the morning on the same day, the appellants had come to his house and abused his father saying that he had got proceeding initiated against them by the police. P.W. 1 has stated that his house is facing north and to the north of his house there is open land. To the south of his house is the house of Matnu Thakur, but there is a road in between the two houses. The Gohal is situated to the south of his main house. To the west of his house is the house of Jugeshwar Thakur and to the east is the house of Moti Sao. There are two rooms in his house and the Gohal behind it is made of straw just little away from the wall. The Gohal also faces north. The appellants had not come raising an alarm, but when they came every near the Gohal, then they were noticed abusing his father. His father Radhey came out of the Gohal and ran towards the west. His uncle Dhanchand, the informant, P.W. 5 also ran with him. The Gohal also faces north. The appellants had not come raising an alarm, but when they came every near the Gohal, then they were noticed abusing his father. His father Radhey came out of the Gohal and ran towards the west. His uncle Dhanchand, the informant, P.W. 5 also ran with him. Three of the assailants were towards the west of the Gohal, while two were towards the east. The three assailants who were towards the west were on road which is to the south of his house. When his father had just come out of the Gohal, he was shot dead. His uncle was also injured when he was at a distance of about 4-5 steps towards the west of his father. This witness has categorically stated that the assailants had not entered inside the Gohal. 5. Vijay Ram, P.W. 2 is the son of the informant and nephew of the deceased. According to him the occurrence took place in the evening after the moon had come out. He also supported the prosecution case that he along with his father, uncle, and cousin was sitting in the Gohal when the appellants came and started challenging his uncle. He has also stated that his uncle came out of the Gohal and ran towards the west, but the assailants shot at his uncle and father. After his uncle Radhey fell down on the ground, the accused persons assaulted him on his head with the butt of their guns. He had also noticed the presence of Brahma Ram and he had seen him assaulting his uncle with a lathi. This Brahma Ram is said to be the brother of appellant Arjun Dharhi. This witness stated that his father also received gunshot injury and he fell down, but he soon got up and ran away. He has also corroborated the prosecution case that earlier in the morning on that day, the appellants had come to the house of Radhey and abused him. This witness stated in his cross-examination that though his father and uncle lived separately, their cultivation was joint and they were cultivating their ancestral lands. He also stated that the assailants were noticed when they were at a distance of about 5-6 steps from the Gohal. He and Sudhir P.W. 1 were at the entrance of the Gohal. Radhey Ram, deceased, was shot at and he fell down at. He also stated that the assailants were noticed when they were at a distance of about 5-6 steps from the Gohal. He and Sudhir P.W. 1 were at the entrance of the Gohal. Radhey Ram, deceased, was shot at and he fell down at. a point about 3-4 steps to the west of the Gohal. He was thereafter assaulted with the butt of the guns carried by the assailants and his head started bleeding. At the time of firing, he had seen one of the accused standing towards the east, while the remaining three were to the south of the Gohal. Radhey (deceased) was assaulted while he was attempting to run away. 6. P.W. 4 is Vidya Devi, wife of informant Dhanchand Ram. She was inside the house when she heard the appellants abusing Radhey and challenging him to come out. She came out on hearing the hulla and saw all the four appellants armed with guns. All of them fired at Radhey who fell down whereafter they assaulted Radhey on his head with the butt of the guns. Brahma Dharhi had also come there and he had also assaulted the deceased with a lathi. Radhey, deceased, died instantaneously. The assailants ran towards the west, and then towards the north. Her husband was also with Radhey and he had also received one gunshot injury in his thigh. According to this witness, Radhey received gunshot injury when he had hardly run two steps. Thereafter, her husband was also shot at. 7. Dhanchand Ram has been examined as P.W. 5. He is also the informant in the case. According to him, the occurrence took place at about 7.30 in the evening when he was in his Gohal along with his son, his brother and nephew. He has also given the same version of the occurrence, and he has also named all the four appellants who were armed with guns. The night was a moon-lit night and he had identified each one of them. He has stated that he and his brother both ran towards the west when the appellants fired at them. His brother Radhey fell down on being injured while this witness received a gunshot injury on the rear part of his left thigh, whereafter he fell down, but he again got up and ran. He came back after four-five minutes and saw that the appellants had run away. His brother Radhey fell down on being injured while this witness received a gunshot injury on the rear part of his left thigh, whereafter he fell down, but he again got up and ran. He came back after four-five minutes and saw that the appellants had run away. His brother was lying on the ground. He had profusely bled and had died. He rushed to the police station and lodged a report. He has also stated about the manner in which the appellants had come in the morning and abused his brother Radhey. After recording his report, he was sent to the hospital for treatment. On that night, he remained in the hospital and only in the morning he joined the funeral of his brother, Radhey, from Surajgarha. This witness further state that while at home he had been told by his wife and the wife of Radhey that after Radhey had fallen down he was also assaulted by Brahma Bharhi with a lathi. This witness has also stated that he had heard the firing of the first shot when he was 3-4 steps from the entrance at the Gohal. He was near Radhey when Radhey was shot at and he also received injury at about the same time. He had heard the sound of five-six gun shots. When he returned and saw his brother Radhey lying dead, he did not know that this brother had also been assaulted with lathi. 8. Beena Devi, the wife of the deceased has been examined as P.W. 8. Her evidence is also on the same line as that of P.W.s 1 and 2. In cross-examination, she was asked whether she was working at the house of Daroga at Surajgarha and she replied in the affirmative, but she also stated that she was working at his house since last one year. This witness was deposing almost two years after the occurrence, and therefore, it is apparent that she took up employment as a maid servant in the house of Daroga at Surajgarha much after the occurrence. 9. Dr. Anirudha Prasad performed the postmortem examination on the dead body of the deceased on 21.1.1984 while he was posted as the Civil Assistant Surgeon at Munger, Sadar hospital. He found the following ante-mortem injuries on the body of the deceased. 9. Dr. Anirudha Prasad performed the postmortem examination on the dead body of the deceased on 21.1.1984 while he was posted as the Civil Assistant Surgeon at Munger, Sadar hospital. He found the following ante-mortem injuries on the body of the deceased. (i) Lacerated wound 2" x 1/2" x bone deep on the left parietal occipital area of the scalp. On dissection underlying haematoma eccymosis and fracture of left parietal bone were found On opening of skull loose membrance with blood clot was found. (ii) Lacerated wound 2" x 1/2"x muscle deep on front of left forearm one inch below left elbow point. On dissection eccymosis and extravassasation of blood with laceration of skin and underlying tissues were found. (iii) Circular lacerated wound one inche in diameter with inverted margin deep into thoracic cavity at the level of the 6th inter coastal space in the mid clavicular line. On dissection of thorax, he found blood and blood clots in the thorasic cavity with haematoma and laceration of skin and muscle around the wound with fracture of the 6th and 7th coastal ribs. On further dissection, he found puncture of left lung with laceration. On opening the abdomen he found that the stomach was punctured through and through and there was ruptume of spleen. On further dissection one metallic round object was found lodged under the skin and muscle of the left back lateral to the 12th thorasic vertibra which was removed and sealed and handed over the police. In his opinion, death was due to shock and haemorrhage caused by injury No. (iii). In his opinion injury Nos. (i) and (ii) were caused by some hard and blunt substance while injury No. (iii) was caused by fire arm. The time that elapsed since death was estimated by him to be 24 hours. 10 Basudeo Mistry, P.W. 10 was declared hostile because though he supported the occurrence, he stated that when he questioned the son and the wife of the deceased, they had told him that on account of darkness, they could not identify the assailants of Radhey. 11. We have earlier noticed the evidence of the Investigating Officer who was examined as P.W. 12. 11. We have earlier noticed the evidence of the Investigating Officer who was examined as P.W. 12. The remaining witnesses are not matrerial as they were merely tendered by the prosecution for cross-examination, or are witnesses of formal nature and there is nothing in their evidence worth noticing, nor has Counsel for the appellants pointed out anything in their testimony which may support the case of the defence. 12. The plea of the defence is that the appellants are innocent and they have been falsely implicated. 13. Counsel for the appellants submitted that at the time of occurrence it was considerably dark and, therefore, the witnesses had no opportunity of identifying the assailants. Relying upon the medical evidence on record, he submitted that the nature of injuries found, did not support the prosecution case, and therefore, the prosecution case should not be accepted. He further submitted that the substratum of the prosecution case was not established and the evidence completely destroyed the case sought to be proved by the prosecution, namely, that all the four appellants had fired at the deceased and that he fell down and died immediately thereafter. He further elaborated by arguing that the prosecution witnesses have not been able to explain the injury caused to the deceased by hard and blunt substance. He further argued that all the eye-witnesses examined at the trial are close relatives of the deceased, and, therefore, their testimony should be viewed with caution. 14. We have carefully read the deposition of the witnesses and given our serious thought to the submissions urged at the bar. It cannot be disputed that all the eye-witnesses in this case are the close relatives of the deceased, but having regard to the fact that the occurrence took place near the Gohal of the deceased, the menders of the family are the most natural witnesses. The appellants had come near the Gohal of the deceased and had raised hulla challenging the deceased to come out. This would have naturally attracted the attention of the family members, and there is, therefore, nothing unnatural in their witnessing the occurrence. There is clear evidenced on record that at the time when the occurrence took place, it had become dark because it was the month of January when it becomes quite dark by about 6 p.m. The informant had said that the occurrence took place at about 7.30 p.m.. There is clear evidenced on record that at the time when the occurrence took place, it had become dark because it was the month of January when it becomes quite dark by about 6 p.m. The informant had said that the occurrence took place at about 7.30 p.m.. While one of the witnesses had said that it was evening after the moon had come out, another has said that it was night. The rustic villagers have given their own estimate about the time, but having regard to the fact that the police station was at a distance of about 8 Kms. and the F.I.R. was lodged at 8.15 p.m. it is possible that the occurrence may have taken place between 6 p.m. and 7 p.m.. It cannot, therefore, be disputed that it had become dark by the time, the occurrence took place. There is, however, evidence on record to show that the night was a moon-lit night. Admittedly, the appellants were known to the witnesses from before, and tin these circumstances, we have no doubt that the light, that was available, was sufficient to enable the witnesses to identify the assailants who had come very near their Gohal. 15. Counsel for the appellants submitted that the medical evidence on record establishes that there is only one gun-shot injury and the remaining two injuries were caused by hard and blunt substance. We have already noticed the injuries found on the body of the deceased. Though the doctor has opined that injury No. 1 was caused by hard and blunt substance, it is possible to hold that even injury No. (i) found on the left parieto occipital area may have been caused by a bullet hitting the scalp and getting deflected, however in view of the medical evidence, we shall take it that one injury was caused by fire-arm and the other two by hard and blunt substance. The submission of Counsel for the appellants is that if all the four persons fired at Radhey and his brother Dhanchand, the informant, more gunshot injuries should have been found on their persons. On the other hand, Counsel for the State submitted relying upon a decision of the Supreme Court reported in AIR 1997 2457 Mithilesh Upadhyay and Ors. The submission of Counsel for the appellants is that if all the four persons fired at Radhey and his brother Dhanchand, the informant, more gunshot injuries should have been found on their persons. On the other hand, Counsel for the State submitted relying upon a decision of the Supreme Court reported in AIR 1997 2457 Mithilesh Upadhyay and Ors. V/s. The State of Bihar that it is not always possible for the witnesses to depose as to which shot injured which part the body of the deceased. He submitted that the witnesses may say on the basis of what they observed that the accused indiscriminately fired at the deceased, but it would not follow as a matter of course that all the shots fired actually injured the deceased. We find substance in the submission urged on behalf of the State, because having regard to the facts and circumstances and also in particular having regard to the fact that it was somewhat dark at the time when the occurrence took place, the witnesses may be able to depose as to which of the assailants fired at the deceased, but it would be impossible for them to depose as to whether all the shots fired actually hit the target. We are, therefore, not impressed by the argument that only two gunshot injuries were found on the person of the deceased and his brother. It is, however, established that the deceased did receive a gunshot injury which resulted in his death. 16. It was then submitted that if the deceased was really running away towards the west, the injuries should have been caused on his back, but the doctor has found that the injuries were on thorax meaning thereby that the injury, was caused while the deceased was face to face with the assailants. The submission ignores the fact that it is not the prosecutions case that the deceased and his brother had run away to some distance and the firing was resorted to from behind. The clear case of the prosecution is that the accused were near the entrance of the Gohal, on the road to the south of the Gohal, and as soon as the deceased and his brother came out, they started the assault. This is also supported by the fact that the deceased fell down at a spot which was barely 3-4 steps form the entrance of the Gohal. This is also supported by the fact that the deceased fell down at a spot which was barely 3-4 steps form the entrance of the Gohal. It is also the clear case of the prosecution that the assailants never entered the Gohat. It, therefore, appears to us that as soon as the deceased came out of the Gohal, he was shot at and he may have run 3-4 steps and thereafter fallen on the ground. 17. Learned Counsel then submitted that in the first information report the informant has not mentioned about any injury being caused by hard and blunt object. That is so because this witness had run away and not witnessed the further assault on the deceased. However, in the course of his deposition at the trial, he has stated that his family members had told him that Brahma Dharhi had also assaulted the deceased with a lathi. It is, no doubt, true that in the first information report, the informant has not stated about the injuries being caused to the deceased by hard and blunt object. However, we find that. P.Ws. 1 and 2 who were examined on the very night of occurrence, have stated that the assailants had assaulted the deceased with the butt of their guns causing profuse bleeding. Not even a suggestion has beeji put to these witnesses that they had not disclosed this aspect of the case in the course of investigation, and therefore, it appears to us that these witnesses at the earliest had stated that after the deceased fell down, he was also assaulted with the butt of the guns held by the assailants. Counsel for the State submitted that in the case diary as well he finds that this fact had been disclosed at the earliest by P.Ws. 1 and 2 when they made their statements before the police on the night of occurrence itself. We need not look into the case diary to verify this fact, but it is obvious from the cross-examination of these witnesses that there is not even a suggestion to them that they had not disclosed about the assault on the deceased by some hard and blunt object, such as the butt of the guns, in their statement made in the course of investigation. Their statement on oath that after Radhey fell down, he was assaulted by the assailants with the butt of their guns has therefore, remained unchallenged in cross-examination. Moreover as stated by the informant himself he had run away on receiving pellet injury and he came back latter. Obviously, he had not witnessed that part of the occurrence in which, the deceased was assaulted with the butt of the guns carried by the assailants. 18. The informant has stated in the first information report as well as in the course of his deposition that he had also received pellet injury on his left thing. The investigating Officer has proved the requisition to the Medical Officer written by him as Ext-3. It appears that while the Investigating Officer was in the witness box, the medical report relating to the informant was not shown to him, nor were any questions, asked in relation thereto. In fact the medical report is just on the other side of same chit of paper on which requisition has been written by the Investigating Officer. It appears that the medical report was admitted in evidence and marked Ext-7 under Sec. 294 of the Code of Criminal Procedure without objection on 7.1.1987. We also find from the order sheet of the Court below that a copy of the medical report was given to the Counsel for the accused and they did not offer all objection to its being taken on record and marked an exhibit. No doubt, the Medical Officer has not been examined in this case, but there is evidence of so many witnesses who had witnessed the occurrence and who have stated that the informant was also injured in the same incident and he received injury on his left thigh. 19. In view of the findings arrived at by us, it is not possible to accept the submissions urged on behalf of the appellants that the substratum of the prosecution case has not been proved. We find that the prosecution has satisfactorily proved that all the assailants came to the Gohal of the deceased on the evening of the date of occurrence and that all of them fired at the deceased and his brother while they were attempting to flee. The prosecution has also established that after the deceased fell down he was assaulted on his head by the assailants with the butt of their guns. The prosecution has also established that after the deceased fell down he was assaulted on his head by the assailants with the butt of their guns. The medical evidence is, therefore, consistent with the prosecution case. The fact that four gunshot injuries were not found on the body of the deceased does not belie the prosecution case, because though all the appellants may have fired, it is possible that they missed the target and this has to be viewed in a situation where the deceased and the informant were trying to run away on hearing the challenges thrown by the appellants. 20. Having considered all aspects of the matter and the submissions urged on behalf of the appellants and the Counsel for the State, we are satisfied that the prosecution has proved its case beyond reasonable doubt and the Trial Court was, therefore, justified in finding the appellants guilty of the offence under Sec. 302/34, IPC and under Sec. 27 of the Arms Act. We, therefore, find no merit in the appeal and the same is, accordingly, dismissed.