U. S. TRIPATHI, J. ( 1 ) THE above appellants have preferred this appeal against judgment and order dated 16-7-1980 passed by IInd Additional Sessions Judge, Jalaun at Orai in Sessions Trial No. 150 of 1979 convicting the appellant Ravindra Singh under Section 302, I. P. C. and sentencing him to imprisonment for life and convicting appellant Damodar under Section 302, I. P. C. read with Section 34, I. P. C. and sentencing him to imprisonment for life. ( 2 ) THE prosecution story briefly stated is that Guru Narayan, deceased (70) was husband of Smt. Shakuntla Devi, (P. W. 3) and at the time of occurrence was residing in Mohalla Shiv Puri, P. S. Kotwali, Orai district Jalaun. Prior to three years of the occurrence, Brijendra Kumar, son of the deceased was murdered in which appellant Ravindra Singh and one Surendra, cousin brother of appellant Damodar were convicted to imprisonment for life. The appellant Ravindra Singh preferred an appeal in this Court and was granted bail. At the time of occurrence of this case, he was on bail in the said case. Guru Narayan, deceased was also an accused in the murder of one Radhey Lal, uncle of appellant Damodar. ( 3 ) GURU Narayan, deceased was working at the Petrol Pump of Bhajan Babu in Kasba Orai. Since he had enmity he used to return his house early in the evening. On the evening of 21-7-1979 Guru Narayan, deceased did not return to his house till 6. 30 p. m. Smt. Shakuntla Devi, (P. W. 3), wife of deceased along with her brother Pratap Singh (P. W. 5), who had come to Orai on same day, proceeded to fetch Guru Narayan, deceased. When they reached near Jalaun Bus Stand on the road, the deceased was seen coming. They accompanied the deceased and proceeded towards their house. At about 8 p. m. when they reached in front of the house of Rajendra Kumar Singh, Vakil, appellants Ravindra Singh and Damodar came from behind. Appellant Damodar exhorted and on his exhortation appellant Ravindra Singh fired country made pistol shot upon deceased from behind. They accompanied the deceased and proceeded towards their house. At about 8 p. m. when they reached in front of the house of Rajendra Kumar Singh, Vakil, appellants Ravindra Singh and Damodar came from behind. Appellant Damodar exhorted and on his exhortation appellant Ravindra Singh fired country made pistol shot upon deceased from behind. On further exhortation by appellant Damodar, appellant Ravindra Singh again loaded his pistol, but in the meantime, Smt. Shakuntla Devi, (P. W. 3) and Pratap Singh, (P. W. 5) raised alarm, which attracted attention of Mahesh Kumar, (P. W. 6) and Keshava Sharan, who also rushed to the spot and then the appellants ran away. There was light of electric bulb on the street poles and electric bulbs light was also coming from the nearby houses. The appellants were recognised by their names in the above light. Sustaining fire-arm injuries Guru Narayan, deceased fell down. He was taken to hospital on a rickshaw, where he was declared dead. Smt. Shakuntla Devi, (P. W. 3) herself prepared report (Ext. Ka-4) and lodged the same at the police station Kotwali, Orai at 8. 45 p. m. on the same night. Chik F. I. R. (Ext. Ka-2) was prepared by Constable Clerk, Rang Pal Singh, (P. W. 2), who made an endorsement of the same at G. D. report (Ext. Ka-3) and registered a case under Section 302, I. P. C. against the appellants. ( 4 ) INVESTIGATION of the case was taken up by Sri Harbans Singh, Investigating Officer, (PW 4 ). He reached the hospital collected Punches and conducted inquest of the dead body of the deceased and prepared inquest report (Ext. Ka-5) and other relevant papers (Ext. Ka-6 to Ka-8 ). The dead body was sealed and handed over to Constables Bala Prasad and Ram Shankar for postmortem. Thereafter, Investigating Officer interrogated Smt. Shakuntala Devi, (PW 3) and Pratap Singh, (PW 5) and proceeded to place of occurrence, where he found blood stains and empty cartridge. He collected blood stains and simple earth as well as empty cartridge from the spot and prepared recovery memos (Ext. Ka-9 and Ka-10 ). He also inspected place of occurrence and prepared site plan (Ext. K-11 ). ( 5 ) THE autopsy on the dead body of the deceased was conducted on 22-1-1979 by Dr. He collected blood stains and simple earth as well as empty cartridge from the spot and prepared recovery memos (Ext. Ka-9 and Ka-10 ). He also inspected place of occurrence and prepared site plan (Ext. K-11 ). ( 5 ) THE autopsy on the dead body of the deceased was conducted on 22-1-1979 by Dr. Ramesh Chandra Singh, (PW 1), who found following anti mortem injuries on the person of the deceased. i) Gun shot wound of entry on back 2 cm. in diameter, rounded margins, lacerated all round. Skin black scorched 2 cms. right side of back bone, 12. 5 cms. medially and downward from inferior angle of right Scapula. (ii) Nine gun shot wounds of exit, each. . 75 Cm. in diameter situated in an area of 4" x 3" below right nipple. (iii) Abrasion on right side of chin 3 Cms. x 5 Cms. (iv) Abrasion on the right side of Cheek 2. 5 Cm. in diameter. (v) Abrasion on the left side of cheek. ( 6 ) ON internal examination the Doctor found 4th, 5th, 6th and 7th ribs right side fractured. Thoracic fractured on transverse process. Right lung was lacerated. One piece of cork and three pellets were recovered from right side of lung. Small intestine was full with digested meal and large intestine was full with faecal matter. Cause of death, according to Doctor, was shock and haemorrhage, as result of gun shot wound. The Doctor prepared postmortem reported (Ext. K1 ). ( 7 ) THE remaining investigation of the case was conducted by Kunj Behari Mishra, Investigating Officer, (PW 7), who on completion of investigation submitted charge sheet (Ext. Ka 12) against the appellants. ( 8 ) THE appellant Ravindra Singh was charged with the offence punishable under Section 302, I. P. C. , while appellant Damodar was charged with the offence punishable under Section 302, I. P. C. read with Section 34, I. P. C. Both the appellants pleaded non guilty, set up a case of total denial and contended their false implication. ( 9 ) THE prosecution, in support of this case, examined Dr. ( 9 ) THE prosecution, in support of this case, examined Dr. Ramesh Chandra Singh, (PW 1), Constable Rang Pal Singh, (PW 2), Smt. Shakuntla Devi, (PW 3), Harbans Singh , Investigating Officer, (PW 4), Pratap Singh, (PW 5), Mahesh Kumar, (PW 6) and Kunj Behari Mishra, Investigating Officer, (PW 7), Smt. Shakuntla Devi, (PW 3), Pratap Singh, (PW 5) and Mahesh Kumar were witnesses of fact, while evidence of remaining witnesses was formal in nature. ( 10 ) THE learned Sessions Judge on appreciation of evidence of witnesses discarded the evidence of Mahesh Kumar (PW 6) but relied on evidence of Smt. Shakuntala Devi, (PW 3) and Pratap Singh, (PW 5) and held that evidence of above two witnesses is supported by medical evidence, F. I. R. and other circumstances of the case and the prosecution successfully proved the guilt of Ravindra Singh for the offence punishable under Section 302, I. P. C. and that of appellant Damodar for the offence punishable under Section 302, I. P. C. read with Section 34 , I. P. C. with these findings he convicted and sentenced the above appellants as mentioned above. ( 11 ) AGGRIEVED with their conviction and sentence the appellants had come up in this appeal. ( 12 ) WE have heard the learned counsel for the appellants, learned A. G. A. and have gone through the record as well as evidence of prosecution witnesses. ( 13 ) REGARDING motive there is sufficient evidence from the side of the prosecution. It is admitted to appellant Ravindra Singh that he was convicted for the murder of Brijendera Kumar, S/o Guru Narayan, deceased. It is, further, alleged that Radhey Lal, uncle of Damodar, accused was murdered, in which Guru Narayan, deceased was accused. The said incident had taken place prior to a year of the occurrence of this case. As such, there was strong enemity between t he parties and his enemity was sufficient to establish motive for the appellants against Guru Narayan, deceased. ( 14 ) THE occurrence of the case had allegedly taken place at about 8 p. m. on the night of 21-1-1979 at Kalpi Jhansi Road in front of house of Rajendra Kumar Singh, Advocate. The deceased was brought to the hospital just after the occurrence, where he was declared dead. ( 14 ) THE occurrence of the case had allegedly taken place at about 8 p. m. on the night of 21-1-1979 at Kalpi Jhansi Road in front of house of Rajendra Kumar Singh, Advocate. The deceased was brought to the hospital just after the occurrence, where he was declared dead. The postmortem on the dead body of the deceased was conducted on the next day at 10. 30 a. m. According to evidence of Dr. Ramesh Chandra Singh, (PW 1), the deceased had died about half day ago. He also stated that the death of deceased could have taken place on the night of 21-1-1979 at about 8 p. m. The appellants have not challenged above evidence of the prosecution regarding date and time of occurrence. The ocular witnesses Smt. Shakuntla Devi, (PW 3), Pratap Singh, (PW 5) and Mahesh Kumar, (PW 6) have categorically stated that occurrence took place on the night of 21-1-1979 at about 8 pm. Thus, there is ample evidence to prove date and time of the occurrence. ( 15 ) THE occurrence allegedly took place on Kalpi Jhansi Road in front of house of Rajendra Kumar Singh, Advocate. The ocular witnesses stated that the deceased, after sustaining injury fell down on the spot and blood had fallen on the site. It was also stated that the assailant had reloaded his pistol for second shot. The Investigating Officer visited the spot on the same night and found blood and empty cartridge on spot. In view of the presence of empty cartridges and blood, which were to fall on the spot in the circumstances of the case, there can be no doubt regarding the place of occurrence. Moreover, it is not the case of appellants that occurrence took place some where else. The prosecution was also not going to be benefited by setting up by the above particular place of occurrence. ( 16 ) THERE is another circumstances of the case, which corroborates the place of occurrence. According to prosecution, on the day of occurrence, the deceased had gone to work at the Petrol Pump of Bhajan Babu towards north of the place of occurrence. When he did not return to his house till 6. 30 p. m. his wife Smt. Shakuntala Devi, (PW 3) and is brother-in-law Pratap Singh, (PW 5) were going to call him. According to prosecution, on the day of occurrence, the deceased had gone to work at the Petrol Pump of Bhajan Babu towards north of the place of occurrence. When he did not return to his house till 6. 30 p. m. his wife Smt. Shakuntala Devi, (PW 3) and is brother-in-law Pratap Singh, (PW 5) were going to call him. He met the above witnesses near Jalaun Bus Stand on the road and was coming to his house along with them. The place of occurrence, admittedly, lies in between Petrol Pump of Bhajan Babu and the house of deceased. Thus, there was occasion for the deceased to be at the place of occurrence. ( 17 ) IN the instant case, the occurrence took place at about 8. p. m. and F. I. R. was lodged at 8. 45 p. m. on the same night. The informant Smt. Shakuntala Devi, (PW 3) stated that after the occurrence she with the help of her brother Pratap Singh and other witness took the deceased in a rickshaw to the hospital, where he was declared dead. Then she herself prepared report (Ext. Ka 4) in the hospital and went to Police Station along with Pratap Singh, (PW 5 ). It is also in the evidence of Pratap Singh, (PW 5) that Rajendra, his Bhanja (son of deceased) also came to hospital and leaving the dead body in the verandah of hospital under the watch of his Bhanja, he and Smt. Shakuntla Devi went to police station. The G. O. report (Ext. Ka-3), which was prepared in chronological order indicates that report was lodged at 8. 45. Thus, the report was also promptly lodged. ( 18 ) THE occurrence was witnessed by ocular witness and prosecution examined Smt. Shakuntala Devi, (PW 3) Pratap Singh, (PW 5) and Mahesh Kumar, (PW 6 ). According to above witnesses they were present on the spot and had seen the occurrence in the light of electric bulb fitted on the street poles as well as electric light coming from the nearby house. The learned counsel for the appellants has challenged the presence of ocular witnesses on the spot. ( 19 ) SMT. According to above witnesses they were present on the spot and had seen the occurrence in the light of electric bulb fitted on the street poles as well as electric light coming from the nearby house. The learned counsel for the appellants has challenged the presence of ocular witnesses on the spot. ( 19 ) SMT. Shakuntala Devi, (PW 3), admittedly, widow of the deceased, had explained about her presence, on the spot by stating that the deceased was having enmity with the appellants and others and, therefore, used to come early in the evening to his house by 6-6. 30 p. m. On the night of occurrence he did not return to his house till 6. 30 p. m. then she became curious and taking her brother Pratap Singh, (PW 5) she proceeded towards Petrol Pump of Bhajan Babu, where deceased was working. The deceased met them near Jalaun Bus Stand. Enmity is admitted between the parties. In the background of the above enmity it was but natural for Smt. Shakuntala Devi, (PW 3) to be worried about her husband and to know as to why he was being late. It was also categorically stated by the witnesses that deceased was working at the Petrol Pump of Bhajan Babu. This evidence was not challenged. In the above circumstances, it was natural for Smt. Shakuntala Devi to be present on the spot. ( 20 ) THE learned counsel for the appellants contended that Smt. Shakuntala Devi would have asked her brother Pratap Singh to go alone to call her husband and she had young daughter in her house and therefore, she would not have left her alone at the house. This contention is presumptive. The witness was residing in the Mohalla for last 9-10 years and, therefore, she could have left her daughter, who was studying in B. A. classes, alone at the house, specially when she was leaving the house for a short period. ( 21 ) REGARDING presence of Pratap Singh, (PW 5) it was contended by the learned counsel for the appellants that he was residing at Kanpur City and could not be present at the spot. The witness has categorically stated that he had come to Orai from Kanpur, where he often used to come to see his sister. ( 21 ) REGARDING presence of Pratap Singh, (PW 5) it was contended by the learned counsel for the appellants that he was residing at Kanpur City and could not be present at the spot. The witness has categorically stated that he had come to Orai from Kanpur, where he often used to come to see his sister. It is true that there was no special occasion at the house of his sister on the date of occurrence, but the witness was frequently visiting her house to know her welfare and his arrival at Orai on the day of occurrence was not improbable. ( 22 ) THE presence of Pratap Singh, (PW 5) is noted in the General Diary report (Ext. Ka3) along with Smt. Shakuntala Devi, (PW 3) at the time of lodging report i. e. 8. 45 p. m. If the witness was present at the police station at 8. 45 p. m. it shows that he was present in Oria since the evening, as it was impossible for him to come to Orai from Kanpur after the occurrence i. e. 8 p. m. If Pratap Singh, (PW 5) was present at the house of Smt. Shakuntala Devi, (PW 3) in the evening, it was but natural for her to take him to call her husband. As such the presence of Pratap Singh, (PW 5) on the spot is established. ( 23 ) THERE were, admittedly, electric poles near the place of occurrence. The Investigating Officer had visited the spot in the night of occurrence and found two electric poles, on which bulbs were fitted and emitting light. One electric pole was just near the place of occurrence and the other one at some distance. Besides it, there was house of Rajendra Kumar Singh, Advocate, near the scene of occurrence in which there was also electricity light. The appellants were also admittedly known to prosecution witnesses from before and, therefore, in the above electric light they could be easily recognised. ( 24 ) THE learned counsel for the appellants contended that Smt. Shakuntala Devi (PW 3) could not see the assailants prior to firing and on the firing she observed them from the side and, therefore, she saw only back of the assailant and could not recognise. ( 24 ) THE learned counsel for the appellants contended that Smt. Shakuntala Devi (PW 3) could not see the assailants prior to firing and on the firing she observed them from the side and, therefore, she saw only back of the assailant and could not recognise. That Pratap Singh, (PW 5) stated that the assailants came from behind and, therefore, he was also unable to observe the face of assailant. Having considered the evidence of above witnesses we find no force in the above contention. There is specific evidence of these witnesses that the appellants came forward from behind. Appellant Damodar exhorted and appellant Ravindra Singh fired on the deceased and on the alarm raised by the witnesses they turned their faces and ran towards east. The appellants, who were well known to the above witnesses could be recognised, if they passed from the side of witnesses. Moreover, the appellants also turned their faces. Even if the appellants had not completely turned their faces, their slight turning of face would have enabled the witnesses to recognise them, as they were known to them from before. Moreover, Damodar, appellant had also exhorted by uttering words and appellants Ravindra Singh had reloaded his pistol on the spot. Thus, there was sufficient occasion for the witness to recognise faces of appellants. Smt. Shakuntala Devi, (PW 3) and Pratap Singh, (PW 5) are close relatives of deceased, therefore, they would hardly spare the real assailants and could falsely implicate innocent person. Thus, there can be no doubt regarding presence and reliability of Smt. Shakuntala Devi (PW 3) and Pratap Singh, (PW 5 ). ( 25 ) MAHESH, (PW 6) has also stated his presence on the spot and having observed appellant Damodar exhorting and appellant Ravindra Singh firing on the back of deceased. He had named both the appellants in his examination in chief. However, in his cross-examination in an answer to a leading question put by learned counsel for the defence that the assailant had covered his face from cloth, he stated in the affirmative. But he clarified that person, who exhorted had not covered his face. On this ground, the learned Additional Sessions Judge had discarded his testimony. However, in his cross-examination in an answer to a leading question put by learned counsel for the defence that the assailant had covered his face from cloth, he stated in the affirmative. But he clarified that person, who exhorted had not covered his face. On this ground, the learned Additional Sessions Judge had discarded his testimony. Even on that statement of the witnesses, his entire testimony could not be discarded, as he was knowing the appellants from before and at the time of occurrence was going to his house situate at Mohalla Pathakpura from Jalaun Bus Stand. He had named both the appellants and assigned their specific role in the occurrence. It was not suggested to other ocular witnesses namely Smt. Shakuntala Devi, (PW 3) and Pratap Singh, (PW 5) that assailant had covered his face by cloth. An afterthought suggestion in a leading question form was put to Mahesh Kumar, (PW 6 ). His answer to this question also appears obvious. Thus, the witness was partly reliable and corroborates ocular testimony of Smt. Shakuntala Devi, (PW 3) and Pratap Singh, (PW 5 ). ( 26 ) OCULAR testimony of Smt. Shakuntala Devi, (PW 3) and Pratap Singh, (PW 5) also finds full corroboration from medical evidence. According to evidence of above witnesses only one shot was fired on the back of the deceased. The medical evidence shows that deceased has sustained one gun shot wound of entry on back and 9 gun shot wounds of exist below right nipple, besides three abrasions. Dr. Ramesh Chandra Singh clearly stated that injuries 3 to 5 (abrasions) could not be caused by fall on hard substances. It is in the evidence of above ocular witnesses that the deceased fell down on the ground after sustaining pistol shot injury. Thus, the presence of abrasions on front side on the person of deceased is self explained. ( 27 ) THE testimony of above witnesses is also supported by F. I. R. As held above, the F. I. R. was promptly lodged. Therefore, there was no question of any deliberations before lodging the report. Thus, the presence of abrasions on front side on the person of deceased is self explained. ( 27 ) THE testimony of above witnesses is also supported by F. I. R. As held above, the F. I. R. was promptly lodged. Therefore, there was no question of any deliberations before lodging the report. The name of appellants, weapon possessed by appellant Ravindra Singh, role of each of the appellants and precise manner of the occurrence is mentioned in the F. I. R. The ocular witnesses have given the same version as contained in the F. I. R. ( 28 ) IN this way, the learned Additional Sessions Judge rightly relied on the testimonies of Smt. Shakuntala Devi, (PW 3) and Pratap Singh, (PW 5 ). There is thus no infirmity in the finding of the trial Judge. The conclusion of the trial Judge is also consistent with the material on record. ( 29 ) THUS, from the evidence on the record it is proved that appellant Ravindra Singh caused fatal gun shot injury on the back of Guru Narayan, deceased on the date, time and place of occurrence as well as in the manner alleged by the prosecution. Injury on the person of the deceased, according to medical evidence, was sufficient to cause death in the ordinary course of nature. Therefore, the trial Court rightly concluded that the offence punishable under Section 302, I. P. C. was proved against appellant Ravindra Singh beyond all shadow of doubts. ( 30 ) SO far the case of appellant Damodar is concerned, he has been assigned the role of exhortation. It may be said that exhortation is a weak type of evidence, but from the evidence on record, it is fully established that Damodar, accused had equal enmity with the deceased, who was accused in the murder of his uncle and his cousin brother was co-accused with appellant Ravindra Singh in the murder of son of deceased. Therefore, besides having enmity with the deceased, he had also association with appellant Ravindra Singh. It is in the evidence of ocular witnesses that Damodar, appellant came to the spot along with appellant Ravindra Singh, who had loaded pistol. Therefore, besides having enmity with the deceased, he had also association with appellant Ravindra Singh. It is in the evidence of ocular witnesses that Damodar, appellant came to the spot along with appellant Ravindra Singh, who had loaded pistol. This circumstance coupled with the exhortation given by the Damodar, appellant not once but twice and his escaping from the spot in the company of appellant Ravindra Singh, clearly proved that he had pre-meeting of mind with appellant Ravindra Singh. He equally shared the common intention i. e. to commit murder of the deceased. Therefore, the trial Judge rightly concluded that Damodar, appellant also shared the common intention of committing murder of the deceased and offence punishable under Section 302, I. P. C. read with Section 34, I. P. C. was also proved against him. ( 31 ) IN view of above decision, the appeal has no force and is liable to be dismissed. We, accordingly, dismiss the appeal and confirm the conviction and sentence of appellant Ravindra Singh under Section 302, I. P. C. and that of appellant Damodar under Section 302, I. P. C. read with Section 34, I. P. C. They are on bail granted by this Court. Their bail bonds are cancelled and sureties are discharged. The Chief Judicial Magistrate, Jalaun at Orai shall issue non bailable warrants of arrest of the appellants to secure their presence and for sending them to jail to serve out the sentence. ( 32 ) OFFICE is directed to send a copy of the judgment to Chief Judicial Magistrate, Jalaun at Orai within three days for compliance and report within a month. Appeal dismissed. .