JUDGMENT J. C. Gupta, J. 1. THIS appeal is directed against the judgment and order dated 16.12.1980 passed by the then IVth Additional Sessions Judge, Varanasi in S.T. No. 98 of 1980. By this order, appellant Pancham has been convicted and sentenced to 1-1/2 years rigorous imprisonment under Section 148, I.P.C. ; to imprisonment for life under Section 302, I.P.C. to two years rigorous imprisonment under Section 452, I.P.C. and one year rigorous imprisonment under Section 323 read with Section 149, I.P.C. 2. APPELLANT Balram has been convicted and sentenced to 1-1/2 years rigorous imprisonment under Section 148, I.P.C. ; to imprisonment for life under Section 302 read with Section 149, I.P.C. two years rigorous imprisonment under Section 452, I.P.C. and one year rigorous imprisonment under Section 323 read with Section 149, I.P.C. Appellants Vidya Pandey and Jagdish have been convicted and sentenced to one year rigorous imprisonment under Section 147, I.P.C. ; to imprisonment for life under Section 302 read with Section 149, I.P.C. ; two years rigorous imprisonment under Section 452, I.P.C. and one year rigorous imprisonment under Section 323 read with Section 149, I.P.C. 3. APPELLANTS Badri, Dudh Nath alias Dudha Yadav and Doman have been convicted and sentenced to one year rigorous imprisonment under Section 147, I.P.C. to imprisonment for life under Section 302 read with Section 149, I.P.C. and one year rigorous imprisonment under Section 323 read with Section 149, I.P.C. 4. AT the outset, it may be mentioned that so far as the appellants Badri, Vidya Pandey, Dudh Nath alias Dudha Yadav and Doman Yadav are concerned, their appeals have abated on account of their having died during the pendency of appeal as reported by the Chief Judicial Magistrate concerned. We are now left with the appeals preferred by appellants Pancham, Jagdish and Balram. The prosecution case in nutshell is that in the intervening night of 1st and 2nd January, 1979. Brijendra P.W. 1 along with his mother Smt. Basna, P.W. 3 his brothers Shankar and Dharmu were sleeping in their mandai. His elder brother Ram Naresh (deceased of the present case) was sleeping in the newly constructed house with his wife Smt. Maina and infant daughter aged about 2 months. Lanterns were burning in the mandai as well as in the new house. His father Sita Ram was away from the village on his duty at Saidpur. His elder brother Ram Naresh (deceased of the present case) was sleeping in the newly constructed house with his wife Smt. Maina and infant daughter aged about 2 months. Lanterns were burning in the mandai as well as in the new house. His father Sita Ram was away from the village on his duty at Saidpur. It is alleged that at about 1.30 a.m. in the night, all the appellants came to the mandai of the first informant and started showering abuses upon them whereupon the first informant and other inmates sleeping in the mandai woke up and saw that accused Pancham and Balaram armed with pistols and rest of the appellants with lathi, danda and torch were uttering abuses. Brijendra, P.W. 1 and his brother Dharmu anyhow escaped through the tati and went in the village raising alarm. Their mother Smt. Basna requested the appellants not to assault them. Pancham appellant asked her where was Nareshwa (Ram Naresh)? Smt. Basna did not say anything. Thereafter Pancham made his entry into the newly constructed house through its window. He opened the main door, which enabled the accused Vidya Pandey, Jagdish and Balram to make their entry in Ram Naresh's house. In the meanwhile, Ram Naresh and his wife Smt. Maina got up and the former grappled with the accused persons. During the course of scuffle, Pancham accused fired a shot from his pistol in the right thigh of Ram Naresh whereby he fell on the ground. When the aforesaid accused persons were about to leave the house, Smt. Maina caught hold of Jagdish accused whereupon she was assaulted by Jagdish accused with 'danda' and she also sustained injuries on her person. Ram Naresh died an instantaneous death. The assailants were identified in the light of lantern burning inside the house and mandai. In the morning the first informant went to Saidpur to inform his father and then both of them came back to the scene of occurrence. He got F.I.R., Ex. Ka-1 scribed by his father and lodged the same at police station Balua at 10.30 a.m. wherein all the seven appellants were nominated. 5. INJURIES of P.W. 2, Smt. Maina were examined by Dr. Kameshwar Prasad Sinha, P.W. 4 on 2.1.1979 at 5.15 p.m. and he found following injuries : (1) Abrasion 4.5 cm. 2.5 cm. on the left side of frontal and parietal bone 4 cm. 5. INJURIES of P.W. 2, Smt. Maina were examined by Dr. Kameshwar Prasad Sinha, P.W. 4 on 2.1.1979 at 5.15 p.m. and he found following injuries : (1) Abrasion 4.5 cm. 2.5 cm. on the left side of frontal and parietal bone 4 cm. above from the left eye brow. (2) Lacerated wound 1 cm. 0.5 cm. skin deep on the left maxilla, 0.5 cm. below the left lower eye lid. (3) lacerated wound 0.5 cm. 0.3 cm. on the upper lip. (Middle portion) with swelling 1.5 cm. 1 cm. on the left side of upper lip. (4) Swelling 4.5 cm. 3 cm. on the left maxillary surface below the left lower eye lid. (5) Complain of pain on the waist. In the opinion of doctor, all the injuries were simple and were caused by blunt object such as lathi/stick. Dr. K. P. Sinha, P.W. 4 in his deposition before the trial court further opined that injuries of Smt. Maina could be caused in the intervening night of 1st and 2nd January, 1979 at about 1.30 a.m. Injury report of Smt. Maina is Ex. Ka-2. 6. AFTER the case was registered at police station Balua, its investigation was taken up by the Station Officer Kashi Nath Singh, P.W. 8. He reached the place of occurrence, prepared inquest report and other relevant papers. He also prepared site plan and took into his possession plain and blood stained earth though memo Ex. Ka-12. The dead body of Ram Naresh was sent for post-mortem examination which was conducted by Dr. Anand Singh, P.W. 5 on 3.1.1979 at 1.45 p.m. The following ante-mortem injuries were found : (1) An oval lacerated wound 5 cm. 3.5 cm. 14 cm. (going upward and posteriorly) over upper and medial aspect of right thigh ; 18 cm. above right knee joint. Margins of wound were scorched and inverted (gunshot injury). Direction of wound was going upward and posteriorly. Under injury muscles were lacerated and blood clot was present in muscles and posterior part of thigh. Two pieces of wads were found in muscles medial aspect of thigh and pellets were scattered over, under and posterior part of thigh. Right side femoral vessels of thigh were found ruptured. Twenty three pellets found in the body were collected and sent to police. (2) Abraded contusion in an area of 2.5 cm. 8 cm. over back of left forearm. Right side femoral vessels of thigh were found ruptured. Twenty three pellets found in the body were collected and sent to police. (2) Abraded contusion in an area of 2.5 cm. 8 cm. over back of left forearm. (3) Multiple abrasions in an area of 8 cm. 2.5 cm. over left shoulder joint. In the opinion of doctor death was caused due to haemorrhage and shock on account of fire-arm injury No. 1. After conclusion of investigation, the Investigating Officer submitted charge-sheet against all the persons nominated in the first information report and sent them for trial. 7. BEFORE the trial court prosecution examined eight witnesses in all. They were P.W. 1, Brijendra, P.W. 2, Smt. Maina Devi, P.W. 3, Smt. Basna, P.W. 4, Dr. K. P. Sinha, P.W. 5, Dr. Anand Singh, P.W. 6, Dr. Sita Ram, P.W. 7, Constable Ram Nagina Yadav and Investigating Officer, P.W. 8, Kashi Nath Singh. Out of these eight witnesses, the first three were witnesses of fact. 8. THE alleged motive for the commission of murder of Ram Naresh was that Sita Ram, father of deceased, had an old house in the main abadi of village Purwa (Nadi) in which they all were living. There was a dispute between him and Badri accused with regard to the flow of water from the drain of the said house. THE water of Sita Ram's house used to flow in the west. Badri accused was having his land adjacent to this drain. Badri accused forcibly put an obstruction in this drainage regarding which Sita Ram on 13.12.1978 moved an application under Section 133, Cr. P.C. against Badri, Pancham, Vidya, Dudha alias Dudh Nath, Doman, Balram and Sahdeo, and the same was sent to police for inquiry. In connection with that inquiry, a Sub-Inspector of Police visited the spot and convened a panchayat. In the said panchayat, it was settled that Badri would leave three cubits of his land for the aforesaid drainage and thereafter he could dig his own foundation. This compromise was reduced to writing and was filed in Court. It is alleged that as per this decision Badri had to leave some portion of his land to facilitate flow of water of Sita Ram's house. This compromise was reduced to writing and was filed in Court. It is alleged that as per this decision Badri had to leave some portion of his land to facilitate flow of water of Sita Ram's house. Badri could not swallow it and was highly sore and enraged as he felt that he had been cheated and was forced to agree to that settlement under pressure of Sub-Inspector and the panchas, though Badri himself was not agreeable. Badri accused threatened Sita Ram with dire consequences. Thus, according to the prosecution, on account of this annoyance the present appellants came to the house of the complainant in the fateful night forming an unlawful assembly and committed the murder of Ram Naresh and caused injuries to Smt. Maina. From the prosecution side copy of application moved under Section 133, Cr. P.C. and copy of compromise Exts. Ka-15 and 16 respectively were also filed. Accused persons in their statements admitted that there was a newly constructed house of Sita Ram in village Purwa (Nadi). Pancham appellant stated that Ram Naresh was living separately with his father and they were not on good terms. He further stated that Smt. Maina was also not carrying good relations with her husband. He denied that any window existed in the newly constructed house of the deceased. All the accused persons denied their participation in the crime in question. 9. ON consideration of evidence on record, the learned Sessions Judge found all the appellants guilty of the offence charged for and accordingly convicted and sentenced them as aforesaid. 10. AGGRIEVED by this order the present appeal has been preferred. The Court has heard Sri Virendra Singh for the appellants and the learned A.G.A. for the State. Factum of death of Ram Naresh in the intervening night of 1st and 2nd January, 1979, by fire-arm injury has neither been disputed nor assailed before us from the appellants side. The fact that Ram Naresh died a homicidal death is also otherwise fully established from the statement of Dr. Anand Singh and from the post-mortem report Ex. Ka-3. The statements given by Brijendra, P.W. 1, Smt. Maina Devi, P.W. 2 and Smt. Basna, P.W. 3 also established that Ram Naresh died on account of fire-arm injury sustained by him on his thigh in the aforesaid night. Recovery of 2 pieces of wads and 23 pellets of gunshots Exts. Anand Singh and from the post-mortem report Ex. Ka-3. The statements given by Brijendra, P.W. 1, Smt. Maina Devi, P.W. 2 and Smt. Basna, P.W. 3 also established that Ram Naresh died on account of fire-arm injury sustained by him on his thigh in the aforesaid night. Recovery of 2 pieces of wads and 23 pellets of gunshots Exts. 1 to 25 collected from the entry wound at the time of autopsy further proved that deceased had received gunshot injury. The duration of death given by Doctor Anand Singh, P.W. 5 also corroborated the prosecution case that the deceased died at about 1.30 in the night of 1st and 2nd January, 1979. Thus, there can be no doubt that Ram Naresh sustained fire-arm injury on his right thigh in the said intervening night and his death occurred due to shock and excessive bleeding on account of rupture of right side femoral vessels of thigh. 11. IT is next to be examined if the prosecution has succeeded in establishing its case beyond any reasonable doubt against the present appellants? 12. BEFORE adverting to the evidence of alleged eye-witnesses, we would like to deal with the motive aspect of the case first. We have already narrated the facts, which according to the prosecution case led to the occurrence in question. It is admitted to the defence that there has been a dispute between the appellants and Sita Ram regarding the opening of drainage towards the land of the appellant Badri. It was also not disputed in the trial court from defence side that a panchayat was convened in that connection and the matter was compromised. It was also not disputed that Badri appellant did not pay any heed to the said compromise and was still having a grudge against Sita Ram and his family members as he thought that he was cheated. Sita Ram P.W. 6 was examined in the trial court and he deposed the entire facts leading to the dispute between the parties. His statement is corroborated by documentary evidence consisting of the copy of application dated 13.12.1978, Ex. Ka-15 moved in the Court of Sub-Divisional Magistrate, Chandauli under Section 133, Cr. P.C. against Badri accused of the present case and copy of compromise Ex. His statement is corroborated by documentary evidence consisting of the copy of application dated 13.12.1978, Ex. Ka-15 moved in the Court of Sub-Divisional Magistrate, Chandauli under Section 133, Cr. P.C. against Badri accused of the present case and copy of compromise Ex. Ka-16 which further shows that the matter was settled between the parties and according to the settlement Badri appellant was to leave some portion of his land for the drainage of Sita Ram's house and only thereafter he could construct his wall. Brijendra P.W. 1 has further stated that despite the settlement Badri, Pancham and Jagdish had again started giving threat to them as they were not satisfied with the said settlement. 13. BEFORE us it was submitted by the learned counsel for the appellants that this alleged motive was hardly sufficient and adequate for committing murder of Ram Naresh by as many as seven accused persons. In the present case, the evidence on record reveals that there was some dispute in between the parties with regard to the flow of water of the house of deceased party over a piece of land of accused Badri and he had to part with that portion as per the decision of panchayat and thus he was highly sore and aggrieved. Thus, it cannot be said that there was absolutely no motive with the accused persons against Badri and his family members. Moreover, it is well-settled that inadequacy and insufficiency of motive is of least importance in a case where direct evidence of commission of crime is available because it is difficult for the prosecution in each and every case to postulate as to what actually had prompted or excited the accused to commit a particular crime. The springs of human action and conduct are unmeasureable because what motive a person has in his mind it is difficult to visualise and it is the offender who himself knows why he acted in a particular manner. In the present case direct evidence of the occurrence has been adduced, thus the inadequacy or sufficiency of motive will not be of much significance. In the background of the relations between the parties, we have examined the evidence of the witnesses of fact in a careful and cautious manner. 14. TURNING to the oral evidence of alleged eye-witnesses, we find that only 3 witnesses namely Brijendra P.W. 1, Smt. Maina, P.W. 2 and Smt. Basna. In the background of the relations between the parties, we have examined the evidence of the witnesses of fact in a careful and cautious manner. 14. TURNING to the oral evidence of alleged eye-witnesses, we find that only 3 witnesses namely Brijendra P.W. 1, Smt. Maina, P.W. 2 and Smt. Basna. P.W. 3 were examined before the trial court. Brijendra P.W. 1 is the first informant. He is son of Sita Ram and real brother of deceased Ram Naresh. He repeated the facts as were disclosed by him in his F.I.R. Even according to his own showing he had run away with his brother Dharmu as soon as the assailants had assembled at his mandai and he himself had not witnessed the actual occurrence. We have gone through his statement carefully and find ourselves unable to accept his claim of having identified the appellants as soon as they had arrived at his mandai. 15. SIMILARLY, we find it highly risky to accept the evidence of Smt. Basna P.W. 3, wife of Sita Ram and mother of deceased Ram Naresh, as true. According to her statement as soon as four appellants, namely, Pancham, Jagdish, Balram and Vidya had entered into the newly constructed house of Ram Naresh, she herself made an attempt to enter into the same house, but other appellants dragged her out and did not permit her to go inside the room of the house where Ram Naresh and his wife were sleeping. No marks of any injury were found on any part of her body nor any signs of dragging were found by the Investigating Officer when he visited the scene of occurrence. It also does not sound to reason that this witness would have been spared unhurt by accused persons, who were standing outside the house, particularly when she was bent upon to make her entry into the house of Ram Naresh deceased. She further admitted in her statement that she had told Brijendra P.W. 1 and her husband P.W. 6 that she had followed accused persons upto the newly constructed house and had tried to make entry therein, but she was not permitted and was pulled out by the accused persons. However, conspicuously such facts are not disclosed in the first information report lodged by Brijendra P.W. 1. However, conspicuously such facts are not disclosed in the first information report lodged by Brijendra P.W. 1. She further stated in her statement before the Court that when the accused persons had arrived at her mandai, Pancham appellant asked where Nareshwa (Ram Naresh) was?. But she did not tell this fact to the Investigating Officer when her statement was recorded under Section 161, Cr. P.C. She was confronted with the same, but she could give no explanation as to why that fact was not mentioned in her statement. Before the trial court, she further deposed that Pancham had first entered into the room of newly constructed house through its window, but again this fact was not disclosed by her in her statement recorded by the Investigating Officer nor could she explain the reason why such an important fact did not find a mention in her statement recorded under Section 161, Cr. P.C. Before the Investigating Officer, she had stated that all the seven accused persons had entered into the room where Ram Naresh and his wife were sleeping, but before the trial court, she changed her earlier version by stating that only four appellants had entered into the room while their other three companions remained outside the said room. There are also major contradictions with regard to the manner of incident from the one as stated by Smt. Maina, P.W. 2 in as much as according to P.W. 3 Smt. Basna, Ram Naresh was fired upon by Pancham accused only after he had fallen on the ground while according to P.W. 2 Smt. Maina, Pancham fired from his pistol on the right thigh of deceased when he was grappling with the accused persons and not when he had fallen down. According to P.W. 3 Smt. Basna w/o Ram Naresh, Smt. Maina was assaulted when she was requesting the assailants to leave her husband, but according to Smt. Maina P.W. 2 she was assaulted after the firing incident was over and only when she had caught hold of Jagdish appellant while he was making his escape good from the room. We, therefore, find it difficult to place reliance upon the testimony of P.W. 3 Smt. Basna also so far as her statement regarding incident goes. 16. We, therefore, find it difficult to place reliance upon the testimony of P.W. 3 Smt. Basna also so far as her statement regarding incident goes. 16. HOWEVER, after closely scrutinizing the evidence of Smt. Maina, P.W. 2 we find that her statement is reliable, trustworthy and acceptable as far as Pancham and Jagdish accused are concerned. This witness has given a vivid account of the incident and has categorically stated that it was appellant Pancham who first entered into her room through the window and opened the main door. Thereafter other three accused, namely Vidya Pandey, Jagdish and Balram made their entry from the main door. She as well as her husband woke up and her husband Ram Naresh grappled with the accused persons in order to over power them and during the scuffle accused Pancham fired a shot from his country made pistol upon right thigh of her husband as a result of which he sustained injury and fell down. She has further stated that when Jagdish appellant was about to leave the room she caught hold of him where upon she was given danda (stick) blows by appellant Jagdish. As a result of which she herself suffered injuries. It has also been stated by her that she recognized and identified all these persons in the light of lantern burning inside the room. Learned counsel for the appellants tried to impress upon this Court to discard the testimony of Smt. Maina on the ground that she is an interested witness and the only premises for dubbing her as an 'interested witness' is that she is wife of the deceased. We find ourselves unable to accept this submission of the learned counsel for the appellants for more than one reason. It may not be forgotten here that the incident occurred at about mid-night inside the room of the deceased's house where besides him, his wife P.W. 2 Smt. Maina was sleeping along with her infant daughter aged about two months. Smt. Maina would normally be expected to be at home at the time of incident, and, therefore, she was the most natural and probable witness and one cannot expect outsiders to be witnesses in such cases. Smt. Maina would normally be expected to be at home at the time of incident, and, therefore, she was the most natural and probable witness and one cannot expect outsiders to be witnesses in such cases. It was observed by the Apex Court in the case of Dalbir Kaur v. State of Punjab, AIR 1997 SC 472, that a close relative if is a natural witness in the circumstances of a case, cannot be regarded as "interested witness". 17. THE mere fact that Smt. Maina happens to be wife of the victim will not be sufficient to discard her testimony, particularly when she herself suffered injuries at the hands of one of the assailants during the course of the same incident in which Ram Naresh was shot dead. In the circumstances, she would be the last person to leave out the real offenders and involve innocent persons because she would certainly be interested to bring the killer of her husband and her own assailant to book. We have minutely examined her statement and find that nothing favouring the defence so far as appellants Pancham and Jagdish are concerned could be extracted out of her in cross-examination. Her presence at the time of incident was most natural as she was sleeping with her infant daughter of her husband in that very room where incident had occurred. That apart, she herself sustained injuries on account of assault made upon her by appellant Jagdish. Thus, her presence at the scene of occurrence is fully established and by no stretch of imagination it could be doubted. 18. THE learned Sessions Judge has accepted testimony of P.W. 2 Smt. Maina as trustworthy and we also find no reason to take a contrary view as no inherent defect therein could be pointed out by the learned counsel for the appellants. Her testimony that the deceased sustained fire-arm injury at the hands of appellant Pancham and that she herself was assaulted by appellant Jagdish with danda (stick) is fully corroborated by medical evidence also. Presence of light of lanterm inside the room has also been established. A very plausible reason has come in the statement of Smt. Maina regarding the presence of lantern in the room. She was sleeping in that room with her infant daughter of about two months old. Presence of light of lanterm inside the room has also been established. A very plausible reason has come in the statement of Smt. Maina regarding the presence of lantern in the room. She was sleeping in that room with her infant daughter of about two months old. It is of common experience that infants are also fed during night and normally some source of light is expected to be present at the place where the mother sleeps with her infant child. As she herself had sustained injuries on her person, she must have come in close proximity of the assailants and must have easily seen the faces of assailants in the light available inside the room. There could not have been any difficulty for her in identifying Pancham and Jagdish particularly when they were well known to her from before the incident. 19. IN the circumstances, we have no hesitation in placing implicit reliance on the testimony of P.W. 2, Smt. Maina, which has been found to be crystal clear and trustworthy so far as it goes against appellant Pancham and Jagdish. Participation of these two appellants in the incident in question is, thus, established beyond any reasonable doubt. 20. AS per the prosecution case accused Badri, Dudh Nath and Doman are alleged to have remained outside the room of Ram Naresh while other four accused persons, namely, Pancham, Jagdish, Balram and Vidya Pandey are said to have entered into the room of Ram Naresh deceased where he was shot dead by appellant Pancham. The charge against all these accused persons was that they formed an unlawful assembly with the common object of causing the death of Ram Naresh and in prosecution of the said object, one of the member of the assembly, namely, Pancham committed murder of Ram Naresh. We have already disbelieved the claim of P.W. 1 Brijendra and P.W. 3 Smt. Basna of their having identified the assailants and that part of the prosecution story that seven accused persons first arrived at the mandai of first informant and then they all went to the house of Ram Naresh in search of him has not been found established from the evidence of aforesaid two witnesses. So far as the testimony of Smt. Maina, P.W. 2 vis-a-vis accused Badri, Dudh Nath and Doman is concerned, it is noteworthy that she in her examination-in-chief itself has stated that she remained inside the room throughout the incident and thus she could not tell what weapons these three accused persons were carrying with them as they stayed outside the room. In cross-examination, she further admitted that she came to know of the names of these three accused persons through Smt. Basna, P.W. 3 whose testimony we have already discarded. It is, thus, evident from her statement that P.W. 2 Smt. Maina had herself not seen the faces of the accused persons as well as their weapons, who remained outside the room. It is, therefore, highly doubtful that any other assailant remained present outside the room of Ram Naresh during the course of incident. As regards appellant Balram, the prosecution case is that he had also entered into the room of the deceased along with appellants Jagdish, Pancham and deceased accused Vidya Pandey. He was, of course, named by P.W. 2 Smt. Maina, but on a careful scrutiny of her statement, we find that it will be too risky to hold him guilty and as an abundant caution, we extend to him the benefit of doubt. He is said to be armed with fire-arm, but is not alleged to have made use of the same. No other specific overt act has been assigned to him by Smt. Maina in her deposition before the Court. We have already doubted the claim of P.W. 1 and P.W. 3 of their having seen the actual incident. It is of common experience that there is a tendency to rope in falsely other family members of the real assailants with them. For the same reasons participation of Vidya Pandey accused is also not free from doubt. The first informant had a motive to implicate Balram and Vidya Pandey falsely in the present case. In the circumstances appearing in the case, the possibility of Balram appellant and deceased Vidya Pandey having been falsely nominated on account of enmity is not ruled out completely. It is, thus, safe to give the benefit of doubt to Balram appellant and Vidya Pandey. 21. In the circumstances appearing in the case, the possibility of Balram appellant and deceased Vidya Pandey having been falsely nominated on account of enmity is not ruled out completely. It is, thus, safe to give the benefit of doubt to Balram appellant and Vidya Pandey. 21. ONCE we have found above that participation of accused Badri, Dudh Nath, Doman, Balram and Vidya Pandey in the occurrence in question is not established beyond doubt and it is also highly doubtful that any other person known or unknown had accompanied appellant Pancham and Jagdish, charge relating to formation of unlawful assembly will fail and conviction under Section 147 or under Section 148, I.P.C. cannot be sustained. 22. WE have already found above that the participation of accused Pancham and Jagdish in the occurrence in question has been established beyond doubt. The question that arises for consideration is for what offences they are to be held guilty? From the evidence on record, it is firmly established that it was appellant Pancham alone who caused fire-arm injury to the deceased Ram Naresh which resulted in his death. Whether he is guilty for the offence of murder or culpable homicide not amounting to murder is now to be determined? From the statement of Dr. Anand Singh, P.W. 5, it is clear and was not disputed before us that death of Ram Naresh was homicidal on account of fire-arm injury. Undisputedly only one fire was made by accused Pancham and the same was not repeated. The seat of injury was right thigh. It is further to be noted that as per the own statement of P.W. 2, Smt. Maina, whose testimony we have found reliable, before the shot was fired by Pancham from his country made pistol, the deceased and accused persons were grappling with each other and shot was fired during scuffle. 23. IN order to convict a person of the offence of murder, it has to be established that he had the intention of causing the death of the victim or of causing a particular injury resulting in his death and also that he had the knowledge that the injury which he intended to inflict was in all probability likely to cause death. The word "knowledge" imports a certainty and not merely a probability. The word "knowledge" imports a certainty and not merely a probability. Causing of a serious injury on a vital part of the body of deceased with a dangerous and deadly weapon will necessarily lead to the inference that the offender intended to kill the deceased. But where the injury is caused on a non-vital part of the body, which normally does not result in the death of victim, the facts of the case are to be minutely examined in order to determine the intention. 24. IT is well-settled that if from the intentional act injury committed, the probability of death resulting is high, the finding should be that the accused intended to cause death or injury of a type which is sufficient in the ordinary course of nature to cause death and conviction should be of murder, but if there was probability in a less degree of death ensuing from the act committed, the finding should be that the accused intended to cause injury likely to cause death, and conviction should be of culpable homicide not amounting to murder. Section 304 of I.P.C. gets attracted : (a) when the case falls under one or the other clauses of Section 300 but is covered by any exception to that Section ; (b) when the injury caused is not of the highest degree of likelihood which is covered by the expression "sufficient in ordinary course of nature to cause death" but is of a lower degree of likelihood which is generally spoken of as an injury "likely to cause death" and the case does not fall under clause (2) of Section 300 ; and (c) when the act is done with the knowledge that death is likely to ensue but there is no intention to cause death or an injury sufficient to cause death. 25. IN the instant case, only injury No. 1 of deceased Ram Naresh was a fire-arm injury which proved fatal. It was on right thigh, a non-vital part of the body. IN the absence of medical evidence certifying that the said injury was sufficient to cause death in ordinary course of nature, we find that it would not be appropriate to hold appellant Pancham guilty of the offence of murder punishable under Section 302, I.P.C. particularly when only one shot was made and that too during the course of scuffle with the deceased. But as the shot was fired from a close range, it could be inferred that the accused intended to cause a bodily injury which was likely to cause death, though he might have not intended to cause any injury which was sufficient in the ordinary course of nature to cause death. Thus, it will be just and proper to hold appellant Pancham guilty of the offence punishable under Section 304, Part I of the I.P.C. He is further found guilty under Sections 323/34 and 452, I.P.C. 26. AS regards appellant Jagdish, he also accompanied appellant Pancham in the night hours and carried with him lathi while Pancham was having a fire-arm. He also caused injuries to Smt. Maina as she caught hold of him when he was about to leave the room. It, therefore, can be safely inferred that he shared common intention with co-accused Pancham, but it cannot be held with absolutely certainty that he shared common intention of causing death of Ram Naresh because Pancham made only one fire on the right thigh of Ram Naresh and that too during the course of scuffle. In the circumstances, it will not be safe to hold this appellant guilty under Section 304, Part I with the aid of Section 34, I.P.C. but he is certainly liable to be convicted under Section 326, I.P.C. read with Section 34, I.P.C. and under Section 323, I.P.C. for causing simple hurt to Smt. Maina. He is also held guilty under Section 452, I.P.C. So far as Badri, Dudh Nath alias Dudha Yadav and Doman are concerned, their appeals have abated on account of their having died during the pendency of the appeal. Similarly appeal filed by Vidya Pandey has also abated on account of his death during the pendency of appeal. 27. FOR the reasons stated above, the appeal of Balram is allowed. His conviction and sentence are set aside. He is acquitted of the offences charged for. He is on bail. He need not surrender. His bail bonds are cancelled and sureties discharged. 28. APPEALS filed by appellants Pancham and Jagdish are allowed in part. Conviction of appellant Pancham under Section 302, I.P.C. is set aside and the same is altered to Section 304, Part I of the Indian Penal Code. His conviction under Section 148, I.P.C. is set aside, but his conviction under Section 452, I.P.C. is maintained. 28. APPEALS filed by appellants Pancham and Jagdish are allowed in part. Conviction of appellant Pancham under Section 302, I.P.C. is set aside and the same is altered to Section 304, Part I of the Indian Penal Code. His conviction under Section 148, I.P.C. is set aside, but his conviction under Section 452, I.P.C. is maintained. His conviction under Section 323 read with Section 149, I.P.C. is altered to Section 323 read with Section 34, I.P.C. Similarly conviction of appellant Jagdish under Section 302 read with Section 149, I.P.C. is set aside instead he is convicted under Section 326 read with Section 34, I.P.C. His conviction under Section 147, I.P.C. is set aside while it is maintained under Section 452, I.P.C. He is further convicted under Section 323, I.P.C. Coming to the question of sentence, we find that the learned Sessions Judge did not make strict compliance of the provisions of Section 235 (2), Cr. P.C. as he merely heard oral submission of the learned counsel for the accused persons on the point of sentence after recording order of conviction and no opportunity as contemplated under the provisions contained in Section 235 (2), Cr. P.C. for bringing on record evidence and material having a bearing on the question of sentence was afforded to the appellants, which has resulted in great prejudice to the appellants. It has been repeatedly held by the Apex Court that compliance of mandatory provision of Section 235 (2) is not a mere formality, but it has to be real and effective. 29. THE incident in question had occurred in the intervening night of 1/2nd January, 1979, i.e., almost 22 years ago. At that time Pancham appellant was aged about 21 years while appellant Jagdish was about 24 years old. After a gap of 22 years, they have advanced in their ages and must be having on their shoulders greater responsibility of their families and children. They are not shown to be having any criminal history or bad antecedents. 30. At that time Pancham appellant was aged about 21 years while appellant Jagdish was about 24 years old. After a gap of 22 years, they have advanced in their ages and must be having on their shoulders greater responsibility of their families and children. They are not shown to be having any criminal history or bad antecedents. 30. HAVING regard to the facts and circumstances of the case, the nature of injuries, antecedents of the appellants and taking into consideration aggravating and mitigating circumstances, we feel that ends of justice will be sufficiently met if appellant Pancham is sentenced to seven years rigorous imprisonment under Section 304, Part I, I.P.C., two years rigorous imprisonment under Section 452, I.P.C. and one year rigorous imprisonment under Section 323 read with Section 34, I.P.C. Similarly, appellant Jagdish is sentenced to three years rigorous imprisonment under Section 326 read with Section 34, I.P.C., two years rigorous imprisonment under Section 452, I.P.C. and one year rigorous imprisonment under Section 323, I.P.C. 31. ALL the sentences of both the appellants shall run concurrently. 32. APPELLANTS Pancham and Jagdish, who are on bail shall be taken into custody forthwith and sent to jail to serve out their respective sentences as modified by this Court and for that matter the Chief Judicial Magistrate concerned shall take appropriate steps without any delay. The appeal is accordingly decided.