JUDGMENT Thomas, J.-There were four persons in the array of the accused in respect of the murder of Mewa Ram on 5.12.1976. All the four were acquitted by the trial Court. The State of Uttar Pradesh preferred an appeal before the High Court challenging the order of acquittal. While the appeal was pending one of the accused (Satyapal) died. Hence the case against him stood abated. A Division Bench of the High Court set side the order of acquittal and convicted the remaining three accused for the offence under Sections 302 and 307 read with Section 34 of the Indian Penal Code and sentenced each to imprisonment for life on the first count and rigorous imprisonment for five years on the second count. Thus these appeals could be filed by the appellants as a matter of right. 2. The summary of the prosecution case is as under : A1 (Bhagwan Saran) and A2 (Phalwan) are brothers. (Ram Prakash) was brother-in-law of A1 (Bhagwan Saran). One Salik Ram (father of A1 and A2) was the Pradhan of the village. At the instance of the deceased some action was taken against Salik Ram and he was suspended from the post of Pradhan. This is said to be background of the incident. From then on deceased became an eye-sore of the accused, according to the prosecution. It is alleged that on 5.1.1976 at about 10.00 a.m. PW 1 (Jagdish Prasad) and his uncle Harnarain were working in the field belonging to the deceased. Mewaram and his son Ramakant reached that field with breakfast and some drinks for Jagdish and Harnarain. At that time all the four accused reached there armed with firearms. One of the accused made an exhortation that the deceased should be killed. Then A1 (Bhagwan Saran) fired his gun on the deceased and A2 (Phalwan) fired his gun at PW 5 (Ramakant). The further allegation is that A3 (Satyapal) and A4 (Ram Prakash) also fired the rifle which they had with them, though none of such firing caused any injury to the deceased or anyone else. 3. When the deceased fell down all the four accused dragged him from the field upto the property of the accused which was situated nearby. After leaving the deceased at that spot assailants ran away from the scene. The deceased succumbed to his injuries at that place itself. 4. 3. When the deceased fell down all the four accused dragged him from the field upto the property of the accused which was situated nearby. After leaving the deceased at that spot assailants ran away from the scene. The deceased succumbed to his injuries at that place itself. 4. The FIR was lodged by PW 1 (Jagdish Prasad) who is the son of the deceased at about 12.30 noon with the local Police Station which is situated about 10 kms away. After investigation was completed the charge-sheet was laid against the four accused. 5. There is no dispute that deceased was shot at on the morning hours of 5.12.1976 and that he died of gun shot injuries. PW 5 (Ramakant) was examined by PW (Dr. J.C. Gupta) on 5.12.1976 itself and found one gun shot punctured wound on the front of the abdomen with blackening around the wound. There was two other abrasions which are not very material. The doctor did not ascertain the depth of the gun shot injury of PW 5 (Ramakant) presumably for averting any possible haemorrhage inside the abdomen. Hence there is no material to show the depth of that injury. 6. The prosecution examined PW 1 (Jagdish Prasad) who lodged the FIR, PW 3 (Babu Ram) and PW 5 (Ramakant) - the injured as three eye witnesses of occurrence. All of them said in one accord that the deceased was shot at by A1 (Bhagwan Saran). They also said that PW 5 (Ramakant) was shot at by A2 (Phalwan). 7. Learned Sessions Judge did not accept the evidence of the three eye-witnesses mainly for two reasons. First is that the FIR, according to the learned Sessions Judge, could have been ante-timed. Second is that the story of deceased being dragged from the spot of occurrence upto the field of the accused could not be true as no injury had been sustained by the deceased in such dragging and that no mark of dragging was noted by the investigating officer at the site. Both the reasons were not appealing to the High Court and hence the Division Bench of the High Court reversed the order of acquittal mainly relying on the testimony of the three eye-witnesses. 8. Both the reasons were not appealing to the High Court and hence the Division Bench of the High Court reversed the order of acquittal mainly relying on the testimony of the three eye-witnesses. 8. It is important to point out at this stage that even the Sessions Judge mentioned that the three eye-witnesses would certainly have been present at the place of occurrence when the incident happened. With regard to PW 5 (Ramakant) who sustained gun shot injuries, nobody could possibly contend that he would not have been present. Of course Mr. Sushil Kumar, learned senior counsel made a bid to contend that the injuries noted by PW 2 (Dr. J.C. Gupta) on PW 5 (Ramakant) could have been self inflicted. Such a contention was advanced as no x-ray was taken to ascertain whether pellets were embedded beneath the said injury. We are not impressed by the said contention, and therefore, we spurned it out. Nor are we impressed by the contention that the story of dragging of the deceased stood disproved due to the absence of any corresponding injury on the back of the deceased. If the deceased was wearing clothes (during winter season very probably he would have worn woollen clothes) there need not be any such injury on the body. As the incident was in December it was during peak winter season in Uttar Pradesh. 9. An endeavour was made by the learned senior counsel to show that the FIR could have been ante-timed as opined by the Sessions Court. The only premise for such finding is that informant mentioned in the complaint that PW 5 (Ramakant) was removed to the hospital by one Kamlesh. The reasoning is that PW 1 (Jagdish Prasad) had not been told by any one about it by that time and hence the FIR would have been given at a much later time. We are not persuaded to think that PW 1 (Jagdish Prasad) could not have obtained the information from any source that PW 5 (Ramakant) was escorted by Kamlesh to the hospital. At any rate we are not disposed to dislodge the FIR as ante-timed on the basis of that fact. 10. The defence strategy was one of total repudiation of the allegation made against them and disowning any involvement in the murder of the deceased. At any rate we are not disposed to dislodge the FIR as ante-timed on the basis of that fact. 10. The defence strategy was one of total repudiation of the allegation made against them and disowning any involvement in the murder of the deceased. So, the task of the court has bogged down to the limited area as to whether the accused would have been the assailants. The best evidence for that purpose is the testimony of the eye-witnesses whose presence could not be disputed by the defence and even the Sessions Judge found their presence very probable. All the three eye-witnesses said in one accord that the deceased was shot at by A1 (Bhagwan Saran) and PW 5 (Ramakant) was shot by A2 (Phalwan). The injury sustained by the deceased and PW 5 (Ramakant) would further corroborate that version. The High Court has therefore rightly reversed the order of acquittal passed by the trial Court as against those two accused persons and convicted them rightly for the offences under Sections 302 and 307 read with Section 34 of the IPC. 11. While dealing with the appeal filed by A4 (Ram Prakash) we find considerable force and substance in the contention of Mr. Sushil Kumar, learned senior counsel that the order of acquittal passed by the trial Court could not have been lightly disturbed by the High Court. In fact PW 1 (Jagdish Prasad) had not allotted any role to A4 (Ram Prakash) in the episode when that witness completed his narration of the facts during chief-examination. At the end of such narration the trial Judge put a question as to how else the empty cartridges of the rifle could be found at the spot of occurrence? To that query the witness answered that A3 (Satyapal) and A4 (Ram Prakash) were carrying rifles and they too fired. We may note here that none of the persons sustained even a scratch as a consequence of firing of the rifle attributed to those two persons. That apart the prosecution even evidence has no case that A3 (Satyapal) or A4 (Ram Prakash) had aimed at the deceased or PW 5 (Ramakant) even if the firing of rifles story was true. We may note here that none of the persons sustained even a scratch as a consequence of firing of the rifle attributed to those two persons. That apart the prosecution even evidence has no case that A3 (Satyapal) or A4 (Ram Prakash) had aimed at the deceased or PW 5 (Ramakant) even if the firing of rifles story was true. In such circumstances, we are unable to agree with the finding of the High Court that A4 (Ram Prakash) had the common intention with the other accused either for murdering the deceased or for attempting to murder PW 5 (Ramakant). The order of acquittal passed in favour of A4 (Ram Prakash) should have been sustained by the High Court. 12. In the result, we dismiss Criminal Appeal No. 733 of 1991 filed by A1 (Bhagwan Saran) and A2 (Phalwan) but we allow Criminal Appeal No. 74 of 1992 filed by A4 (Ram Prakash) and set aside the conviction and sentence passed on A4 (Ram Prakash) by the High Court as per the impugned order. His bail bond will stand cancelled. These appeals are disposed of accordingly. Appeal No. 733 dismissed. Other appeal allowed. ************** Parallel Citations of other Journals : Ram Prakash & Anr. v. State of U.P., 2001(6) Supreme 791 00030