ORDER In regard to the death of one Raghubir 4 persons were arraigned in the Sessions Court for the offence under Section 302 read with Section 34 of the Indian Penal Code. The trial Judge convicted all of them of the said offence and sentenced each of them to imprisonment for life. They filed appeals before the High Court of Allahabad and during the pendency of the appeals one of the convicted persons, by name Majid, died and therefore the case as against him stood abated. A Division Bench of the High Court confirmed the conviction and sentence on the remaining accused. They have filed these appeals by special leave. 2. The incident is alleged to have happened at 7.30 a.m. on 26.8.1979 on the field of deceased Raghubir. According to the prosecution case while Raghubir, in the company of his brother Hari Pal Singh (PW-2), nephew Raj Bahadur Singh (PW-4), another nephew Chattar Pal Singh (PW-1) and Daya Ram (PW-3) were engaged in cutting fodder grass, the 4 accused persons entered the field armed with firearms (one of them was armed with lathi). On the exhortation made by 1st accused - Ismail not to spare the deceased, the other accused started firing at the deceased. The victim fell down and the assailants went closer to him and continued their attack. The kith and kin of the deceased who were present there made an attempt to rescue the deceased but they were threatened and after accomplishing the target the Appellants fled away with their weapons. 3. The background for the aforesaid killing is said to be that members of the family of the deceased and the accused were at loggerheads due to earlier episodes. In one such episode father of Raghubir (Surat Singh) and his brother (Pratap Singh) were killed in 1959. Subsequently, in 1978 two brothers of the 1st accused were killed in a police encounter for which the accused entertained strong suspicion that it was done at the instance of the deceased Raghubir. 4. Out of the 4 eye-witnesses examined, Chattar Pal Singh (PW 1) and Daya Ram (PW 3) turned hostile. However, Hari Pal Singh (PW 2) and Raj Bahadur Singh (PW 4) stuck to the versions attributed to them by prosecution which is in consonance with the prosecution version of the occurrence. 5. 4. Out of the 4 eye-witnesses examined, Chattar Pal Singh (PW 1) and Daya Ram (PW 3) turned hostile. However, Hari Pal Singh (PW 2) and Raj Bahadur Singh (PW 4) stuck to the versions attributed to them by prosecution which is in consonance with the prosecution version of the occurrence. 5. The trial Court and the High Court placed absolute reliance on the testimony of these two eye-witnesses and found the accused guilty of the offence under Section 302 read with Section 34 of the Indian Penal Code and convicted them as aforesaid. 6. Mr. Anoop G. Choudhary, learned senior counsel argued for Jibril and addressed elaborate arguments in order to convince us that the death of Raghubir would not have taken place at 7.30 a.m. and it could possibly have happened during the wee hours of the preceding night around 2.30 a.m. He highlighted the following circumstances to persuade us to reach the conclusion in favour of the aforesaid theory : First is that as per custom is was the turn of deceased Raghubir and his brothers to draw water from the field on the night of occurrence customary time for it was between 2.00 a.m. to 6.00 a.m. in the night and hence the deceased would have gone to field during the early hours. Second is the post-mortem finding, particularly the faecal substance noted in the small as well as the large intestines of the deceased, was more consistent with the theory that the death would have happened long before the sun rise. This is because no person would go for evacuation of the faecal substance at such an early time. The third circumstance highlighted by the learned senior counsel is that Hari Pal Singh (PW 2) and Raj Bahadur Singh (PW 4) have emphatically stated that the firearms were shot five times and all those hit the victim, but as a matter of fact there were only 3 gun shot injuries noted by the doctor who conducted the autopsy on the dead body. 7. None of the above contentions impressed us in thinking that the occurrence would not have happened at 7.30 a.m. or to disbelieve the two eye-witnesses on that count. 7. None of the above contentions impressed us in thinking that the occurrence would not have happened at 7.30 a.m. or to disbelieve the two eye-witnesses on that count. Regarding the 1st contention based on the customary time drawing water, if the incident had really taken place at that time we do not know why the witnesses could have mentioned that, as the time of occurrence. That contention is too fragile a reasoning for disbelieving the eye-witnesses. 8. Nor we are impressed by the number of shots testified by the witnesses. They said those were five shots it would have been a rough estimate. It need not be the exact number. Possibly only 3 gun shots injuries would have hit the victim even if it is assumed that one of the injuries which doctor described as gun shot injury as well have been the result of deflection of a pellet. 9. The presence of faecal matters in the small intestine and large intestine would, at the most, show that the victim would not have eased himself by the time he sustained the fatal injuries. It is quiet possible that the deceased would not have gone for that purpose by 7.30 a.m. 10. Therefore, none of the above contentions would persuade us to interfere with the finding arrived at by the two courts below that the deceased was shot at by Appellant Jibril and Appellant Lajid. The conviction and sentence passed on them need no interference at this stage. 11. Learned counsel for the Appellant-Ismail contended that he is tagged with the help of an oral exhortation attributed to him. If he had accompanied the other accused for the purpose of killing their proclaimed enemy - Raghubir, it is difficult for us to believe that he would have refrained from using the lathi against his target. It is also difficult for us to believe that the other assailants had waited for the clarion call made by Ismail for launching the attack. We must bear in mind that Appellants came to the scene for the purpose of avenging the old enmity nurtured by them. Why should they wait for Ismail to use the words "don t allow him to flee and don t spare him this time". It is difficult for us to agree with the conclusion reached by the two courts below that Ismail had uttered those words. Why should they wait for Ismail to use the words "don t allow him to flee and don t spare him this time". It is difficult for us to agree with the conclusion reached by the two courts below that Ismail had uttered those words. We entertain a reasonable doubt as to the role attributed to Ismail. 12. In the result, we confirm the conviction and sentence passed on the Appellants Jibril and Lajid and dismiss their appeals. But we allow the appeal filed by the Appellant - Ismail and set aside the conviction and sentence passed on him. We direct the Appellant - Ismail to be set at liberty forthwith unless he is required in any other case. 13. Appeals are disposed of accordingly. (C.R.) Order accordingly. **************** Parallel Citations of other Journals : Jibril v. State of U.P., 2000(6) Supreme 226 : 2000 (7) JT 491 : 2000 (3) All. Crl. L.R. 463 : 2000 (4) Crimes 18 00039