M. C. JAIN, J, J. The appeal arises out of the judgment and order dated 14-7-80 passed by the then Sessions Judge, Jalaun at Orai in ST No. 36 of 1980. The appel lants are Kamal, Sarju and Durg who are real brothers. Kamal has been convicted under Section 302, IPC whereas Sarju and Durg have been convicted under Section 302 read with Section 34, IPC. All the three accused appellants have been sentenced to life imprisonment. 2. The murder of one Ratan son of Badlu is involved in the case. The incident took place on 3-11-79 at about 3 p. m. in front of the house of Babu Ram Bhat-tewala in Mohalla Tulsi Nagar, Orai. The report was made by the victims father Badlu, an eye-witness, the same day at 4. 15 p. m. The case of the prosecution was that on fateful day and time, the informant Badl. u, his wife and son Ratan were going to the market. Ratan was going a little ahead to fetch diesel, while Badlu and his wife were going to purchase sundry ar ticles. When Ratan reached in front of the house of Babu Ram Bhattewala in Mohalla Tulsi Nagar, all the three accused who are the own brothers of Badlu, suddenly stopped and surrounded Ratan. Kamal fired with his pistol severely injuring Ratan. He fell on the ground. Sarju and Durg were armed with lathi and axe respec tively. Badlu and his wife raised alarm which attracted Babar Ali and Siya Ram who rushed to the spot, but all the three accused made their escape good. Badlu got a report of the incident scribed by one Ravindra Singh Sengar and took Ratan to Kotwali, where he handed over report at 4. 15 p. m. A case was registered under Sec tion 307 IPC, Ratan was immediately sent to Sadar Hospital, Orai for medical ex amination and treatment, which was done by Dr. R. K. Khatter PW 6. The condition of Ratan being low, a Magistrate was in formed for recording his dying declara tion, which was done by Sri O. K. Tandon PW 5 the same evening and thereafter, Ratan was sent to Kanpur for expert treat ment but he succumbed to the injuries before reaching the hospital there. The case was converted from Section 307 IPC, to Section 302 IPC. The case was converted from Section 307 IPC, to Section 302 IPC. The investigation was made by Inspector Deg Raj Singh PW-7 and ultimately charge-sheet was submitted against all the three accused-appellants. On being committed, they were tried. They pleaded false implication. 3. The prosecution examined eight witnesses in support of its case, out of them Badlu PW 1, Siya Ram PW 2 and Manni Lal PW 3 were the eye-witnesses, Rest were two doctors, IO and Head Constable. No evidence was tendered by the accused persons. 4. It may be stated here that initial medical examination of Ratan was ex amined by Dr. R. K. Khatter PW 6 in Dis trict Hospital, Orai on 3-11 -79 at 4. 40 p. m. The injuries found on his persons were of firearm. Post-mortem over the dead body of the deceased was conducted by Dr. A. N. Singh PW Sat Kanpur on 5- 11-79 at 10. 05 p. m. The following ante-mortem injuries were found on his person :- (1) Fire-arm wound 1 cm x 1 cm x cavity deep 7 cm below and outer to right scapula on posterior axillary line. Blackening and tattooing present. (2) Fire arm wound multiple 3/10 cm x 3/10 cm x muscle deep in area of 9 cm x 8 cm on posterior axillary line with balckening and tatooning. Six pellets recovered. (3) Fire-arm exist wound 1 cm x 1 cm on the left side of the front of chest near epigastrium 8 cm below left nipple. (4) Fire-arm wound multiple in area of 5 cm x 4 cm on the back of right upper arm with blackening and tattooing above the right elbow. 5. The death had occurred due to shock and haemorrhage as a result of ante-mortem injuries sustained by the deceased. Learned Sessions Judge believed the prosecution case and evidence. He accordingly convicted and sentenced them as slated in the opening paragraph of this judgment. Aggrieved, they filed the appeal. 6. On record, the accused-appellants are represented by Sri Rajesh Ji verma and Sri P. K. Verma, Advocates. However, none turned up from the side of appellants to argue the appeal at the time of hearing in spite of repeated calls. We have heard the learned AGA from the side of the State and Sri Sudama Ji Sandilya who has ap peared from the side of complainant. However, none turned up from the side of appellants to argue the appeal at the time of hearing in spite of repeated calls. We have heard the learned AGA from the side of the State and Sri Sudama Ji Sandilya who has ap peared from the side of complainant. We have also carefully gone through the evidence and material on record. 7. On consideration, we are of the opinion that the case of accused-appellant Kamal is distinguishable from other two appellants. It is a case of single shot. Dr. A. N. Singh PW 8 who conducted autopsy on the dead body of the deceased has tes tified that anti-mortem injury Nos. 1,2 and 4 could be the result of single shot. A look at the post-mortem report would show that ante-mortem injury No. 3 is exit wound. So, the point of the matter is that ocular testimony reconciles with the medi cal evidence that a single shot had been fired by the accused- appellant Kamal on the victim. Badlu PW 1 was accompanying his son Ratan at the fateful time. Ratan was going a little ahead while he himself and his wife were following him as they were gong to purchase sundry articles in the market. Ratan was to purchase diesel. It was also Badlu PW 1 who lodged the FIR of the incident without loss of time at 4. 15 p. m. the same day. His presence at the spot cannot be doubted. The name of another eye- witness Siya Ram PW 2 finds place in the FIR. To explain his presence, he stated that he had come to Orai for making purchase and thereafter he was go to Badlus house at about 3 p. m. He wit nessed the occurrence when he reached in front of the house of Babu Ram Bhat-tewala. He is the real brother of Beadles son-in- law, but that cannot be a ground to discard his testimony. He explained that Rath and Orai are equal distance from his village and he had chosen to come to Orai for making purchases. As mooned above, his name finds place in the promptly lodged FIR. No time gap had occurred between the incident and lodging of the FIR and as such possibility of concoction as to the mention of the name of this witness in the FIR is ruled out. As mooned above, his name finds place in the promptly lodged FIR. No time gap had occurred between the incident and lodging of the FIR and as such possibility of concoction as to the mention of the name of this witness in the FIR is ruled out. The tes timony of Badlu PW 1 and Siya Ram PW2 reconciles on the point that it was the accused-appellant Kamal who had fired fatal shot on the victim. 8. As regards Manni Lal PW 3, his name does not find place in the FIR. He had established in the form of a shop a temporary wooden structure near the house of Babu Ram and was doing busi ness at the relevant time. The learned Ses sions Judge has rightly observed that he narrated the entire incident in terms of the prosecution case, but tried to help the accused in his cross- examination by saying that they were tying safi on their faces, but he maintained in another breath that he could see the accused despite it. Even if the testimony of Manni Lal PW 3 is ignored, evidence of Badlu PW 1 and Siya Ram PW 2 is fully corroborated from the medical evidence, flinchingly establishing that the assailant was the accused Kamal who had fired the fatal shot on the victim Ratan. Accused-appellants, Badlu and victim Ratan were close relatives. Some land litigation was going on between the two sides. There was also a case under Section 307ipc, pending against Ratan deceased and his brother Babu who had allegedly assaulted Kamal (present accused-appel lant ). It is indicative of the motive on the part of Kamal accused to murder Ratan. 9. There is an additional factor which leaves not the slightest doubt about the accused Kamal being the assailant of the victim. It is this that dying declaration of Ratan was recorded by Sri O. K. Tandon, SDM, Orai PW 5 on 3-11-79 itself at 6. 15 p. m. Dying declaration is in question answer form. Ratan stated that he was injured by a golf and that Kamal, Sarju and Durg with whom he had enmity regarding landed property, were respon sible for this act. Reading and interpreting his dying declaration in conjunction with the testimony of eye-witnesses, it was fully established that the main assailant was Kamal. Ratan stated that he was injured by a golf and that Kamal, Sarju and Durg with whom he had enmity regarding landed property, were respon sible for this act. Reading and interpreting his dying declaration in conjunction with the testimony of eye-witnesses, it was fully established that the main assailant was Kamal. It would be recalled that the consistent case of the prosecution was that the shot had been fired by Kamal The remain ing two accused-appellants Sarju and Durg had simply exhorted and kept surrounding the victim. Therefore, on thoughtful consideration, we endorse the finding of the learned Sessions Judge that the assailant was Kamal accused who fired the shot killing Ratan. 10. Now we take up the case against the other two accused- appellants Sarju and Durg. The case and evidence of the prosecution against them is that Sarju had a lathi and Durg had an axe. There could be no point in their holding such weapons if they did not mean to use them. Besides exhortation, they allegedly surrounded the victim. It is significant to point out that no overt act has been assigned to these two accused- appellants. Though they were al legedly armed with lathi and axe but they did not make use of the same. The role of surrounding the victim assigned to them sounds bristling against natural human conduct and is in conflict with the inherent probabilities of the circumstances. Ac cused Kamal had opened fire on the victim Ratan who was a moving object. It does not stand to reason that these two accused Sarju and Durg would have surrounded the victim at the time of firing of the shot by Kamal accused, risking their own lives as there could be every possibility of the shot hitting any of them if they were to surround the victim at the time of shooting. There fore, our view tuned by the evidence on record and attending circumstances is that the prosecution version against the ac cused-appellants Sarju and Durg is not without an element of doubt. Possibility of their false implication cannot be ruled out, they being the real brothers of the assailant Kamal and their being the land dispute also between the two parties. The convic tion and sentence passed by the Court below against these two appellants cannot be sustained and they are entitled to be acquitted. 11. Possibility of their false implication cannot be ruled out, they being the real brothers of the assailant Kamal and their being the land dispute also between the two parties. The convic tion and sentence passed by the Court below against these two appellants cannot be sustained and they are entitled to be acquitted. 11. For the reasons mentioned above, we partly allow the appeal. The conviction and sentence passed by the Court below against the accused-appellant Kamal are maintained and the appeal fails so far as he is concerned. However, we set aside the conviction and sentence parsed by the Court below against the remaining two appellants Sarju and Durg under Section 302/34 IPC. 12. All the three appellants, namely, Kamal, Sarju and Durg arc on bail Kamal shall surrender forthwith to serve out the sentence of life imprisonment passed against him by the learned Sessions Judge. Other two appellants, namely, Sarju and Durg need not surrender. Their personal bonds and surety bonds are cancelled and sureties discharged. Appeal partly allowed. .