ONKARESHWAR BHATT, J. Appellants Chhatrapal (aged about 25 years), Jasiram (35 years), Bali Singh (22 years), Mahendra (19 years) and Gajadhar (48 years) have been convicted and sentenced under Section 302 read with Section 149, I. P. C. to undergo rigorous imprisonment for life, under Section 307 read with Section 149, I. P. C. to undergo seven years rigorous imprisonment and under Section 148, I. P. C. to undergo two years rigorous imprisonment. The sentences were ordered to run concurrently. The order of conviction and sentence has been passed in Sessions Trial No. 299 of 1980 by the then IInd Addl. Sessions Judge, Hamirpur on 23- 2-1985. 2. Sri Gopal Chaturvedi, learned Senior Advocate, appearing for the appellants, and learned A. G. A. appearing for the State have been heard. 3. Appellants, Chhatrapal and Jasiram are brothers being sons of Chhabilal. Appellant, Bali Singh is their cousin being son of Desraj and so also the appellant, Mahendra. Appellant, Gajadhar is the father of appellant, Mahendra, Chhabilal, Desraj and Gajadhar live together and have a common mess. 4. Three persons have lost their lives in this case. They are Parsuram, Asha Ram and Nripat. P. W. 1 Mool Chand is the brother of deceased, Parsuram and is cousin of Asha Ram, deceased. Deceased, Nripat belongs to the family of Mool Chand, P. W. 1. On 27-7-1980 at about 4 p. m. P. W. 1, Mool Chand was playing card in his verandah in village Audera Police Station Rath District Hamirpur alongwith deceased, Parsuram and Asha Ram. One Hindupat was also playing card with them. Infront of the Verandah of Mool Chand Ram Kishan P. W. 2 and Aruna Kumari were present. At that time appellant, Gajadhar armed with spear and other four appellants armed with gun came from northern direction. Appellant, Gajadhar challenged Asha Ram, whereupon appellant Chhatrapal fired at Asha Ram which hit him. At the same time, appellants, Jasiram, Bali Singh and Mahendra fired at Parsuram which hit him and Parsuram fell down in the verandah. Asha Ram and Mool Chand went inside the house. All the appellants ran away in the northern direction. Mool Chand and others lifted Parsuram inside the house and closed the door from inside. At about 4. At the same time, appellants, Jasiram, Bali Singh and Mahendra fired at Parsuram which hit him and Parsuram fell down in the verandah. Asha Ram and Mool Chand went inside the house. All the appellants ran away in the northern direction. Mool Chand and others lifted Parsuram inside the house and closed the door from inside. At about 4. 15 p. m. Roop Rani, P. W. 3, who had gone to collect fodder in Puwawa Har alongwith her son, Nripat, grand-son, Lakhan Lal, P. W. 4, and daughter-in-law saw appellant, Gajadhar armed with spear and other four appellants armed with gun. The appellants came to her chak and appellant, Gajadhar held out to Nripat Singh that he had come to take revenge of his brother. Nripat Singh was wearing Nekar and Banyan and after wearing shoes and taking his umbrella he ran. Again appellant, Gajadhar made exhortation upon which other four appellants followed and fired a him. Nripat fell down in the Jwar field. The appellants went there and again made two fires, whereafter they went away towards Kaitha. Roop Rani came to the house of Mool Chand and narrated the fact that appellants have killed her son, Nripat. In the year 1975 murder of Chhabilal, father of appellants, Jasiram and Chhatrapal took place. Rampal and Ratan were accused in the murder of Chhabilal. Rampal and Ratan were enlarged on bail. They demanded Rs. 8,000/- from deceased, Nripat and Asha Ram, as they had caused the murder of Chhabilal at their instance. Nripat and Asha Ram did not pay the above amount nor did Parivi in the case. Due to the above enmity, the appellants had committed the murder of Nripat and made murderous assault on Asha Ram and Parsuram. 5. Mool Chand prepared a written report of the occurrence at his house and at 7. 20 p. m. on 27-7-1980 First Information Report of the case was lodged at police station Rath. Distance of the police station from the place of occurrence is about there kilometers. 6. Sri Kripal Kureel, Sub-Inspector, P. W. 5, was present at the police station when the First Information Report was lodged. He reached the place of occurrence. Alongwith two constables he sent injured, Parsuram and Asha Ram to Rath Hospital. Dr. Distance of the police station from the place of occurrence is about there kilometers. 6. Sri Kripal Kureel, Sub-Inspector, P. W. 5, was present at the police station when the First Information Report was lodged. He reached the place of occurrence. Alongwith two constables he sent injured, Parsuram and Asha Ram to Rath Hospital. Dr. A. K. Srivastava sent a letter to the Sub-Divisional Magistrate and Tahsildar for recording dying declaration as the condition of Asha Ram and Parsuram was serious. Before the Magistrate could arrive, Parsuram died. P. W. 6, Ishwar Vishwanath, Sub- Divisional Magistrate, Rath recorded dying declaration of Asha Ram on 27-7- 1980 which ended at 10. 45 p. m. 7. Asha Ram was referred for treatment to Kanpur but on the way in village Pauthia he died an entry in this regard was made on 28-7-1980 in the General Diary No. 14 at 12. 45 p. m. 8. After investigation charge-sheet has been laid against the appellants. The defence of the appellants is of denial. 9. The fact that appellants belong to one family and are interrelated and live in village Audera is admitted as well as proved in the evidence. The informant and three deceased of the case also live in the same village. It is a case of direct evidence. In the case of a direct evidence motive pales into insignificance. However, according to the prosecution case murder of Chhabilal, who is the father of appellant, Jasiram and Chhatrapal took place in the year 1975. In the murder case of Chhabi Lal, Ram Pal and Ratan were accused and the trial ended in their conviction. When they came back to the village after being enlarged on bail they told that they had caused the murder of Chhabilal at the instance of Asha Ram and Nripat because Asha Ram and Nripat had promised to pay Rs. 8,000/- to them for causing the murder of Chhabilal. Ram Pal and Ratan also told that Asha Ram and Nripat neither paid the above amount nor they did Parivi of their case. The oral evidence of Mool Chand P. W. 1 as well as the documents filed by the appellants show that on13-7-1977 Ram Pal was enlarged on bail by the High Court. According to the prosecution case the appellants had committed the crime in question due to non fulfilment of the promise of payment of Rs. The oral evidence of Mool Chand P. W. 1 as well as the documents filed by the appellants show that on13-7-1977 Ram Pal was enlarged on bail by the High Court. According to the prosecution case the appellants had committed the crime in question due to non fulfilment of the promise of payment of Rs. 8,000/- by Nripat and Asha Ram to them. The motive for the crime is thus proved in this case. 10. The occurrence in this case had taken place on 27-7-1980 at about 4 p. m. in the broad day light. Mool Chand P. W. 1 was playing card in his Verandah alongwith Parsuram, Asha Ram and Hindupat. Ramesh Shanker and Chiranji Lal were also present in the Verandah. Infront of the Verandah of Mool Chand there is house of Ayodhya Prasad and at its door his niece Aruna Kumari and Ram Kishan P. W. 2 were present. The appellants came to the Verandah of Mool Chand. Appellants Chhatrapal, Jasiram, Bali Singh and Mahendra were armed with gun. At the instigation of Gajadhar, who was armed with spear, appellant Chhatrapal fired at Asha Ram. Thereafter other three appellants fired at Parsuram. Asha Ram went inside the room and later on Parsuram was also lifted the room. Blood stained earth was taken from inside the room by the Investigating Officer and the Taat on which Mool Chand and others were playing card was also found blood stained. The testimony of Mool Chand and Ram Kishan amply proves the factum of assault on Asha Ram and Parsuram at the hands of the appellants, who were armed with gun. Six anti-mortem firearm wounds have been found on the person of Parsuram who succumbed to his injuries at 10. 7 p. m. in Rath Hospital. Asha Ram had sustained two fire-arm injuries to which he succumbed on the next day while being taken to Kanpur for treatment. The medical evidence of Dr. A. K. Srivastava P. W. 7, who conducted post-mortem examination of the dead body of Asha Ram also supports ocular testimony of Mool Chand and Ram Kishan. At Puwawa Har murder of Nripat was committed by the appellants by fire arm in the Jwar field where Nripat fell down after sustaining fire arm injuries. Baniyan and Aungauchha of the deceased were found by the Investigating Officer and blood was also found regarding which memoes were prepared. At Puwawa Har murder of Nripat was committed by the appellants by fire arm in the Jwar field where Nripat fell down after sustaining fire arm injuries. Baniyan and Aungauchha of the deceased were found by the Investigating Officer and blood was also found regarding which memoes were prepared. From that very place umbrella and a pair of shoes of the deceased were also taken into possession by the Investigating Officer. The murderous assault on Nripat has been stated by his mother. Roop Rani P. W. 3 and his son, Lakhan Lal P. W. 4. The fact that Nripat was done to death by means of fire arm is corroborated by medical evidence of Dr. A. K. Srivastava who found four gun shot anti-mortem injuries on the dead body of Nripat. No doubt, the witnesses are related to three deceased, but that alone cannot be a circumstance to discredit the sworn testimony which finds complete corroboration from the facts and circumstances stated above and from the medical evidence also. The dying declaration of Asha Ram recorded by Dr. Ishwar Vishwanath P. W. 6 on 27-7-1980 at 10. 45 p. m. also corroborates the ocular testimony adduced in this case. 11. From the evidence adduced in the case it is proved beyond doubt that murder of Nripat and murderous assault on Asha Ram and Parsuram had taken place by fire arm. Except appellant, Gajadhar other four appellants are said to be armed with gun. The role assigned to Gajadhar appellant is of instigation. P. W. 1 Mool Chand has stated that after instigation appellant Gajadhar did not assault any one by spear. Roop Rani P. W. 3 has stated that after sustaining fire-arm injures when Nripat fell down all the appellants went near him and two fires were made at him. She has stated that at that time all the five appellants were present at the place where Nripat had fallen down. Similarly Lakhan Lal has also stated that the appellants who were armed with gun fired at this father Nripat while Nripat was running away. He has also stated that his father fell down in Jwar field. Thereafter also all the five appellants went near Nripat and they fired twice or thrice again. Similarly Lakhan Lal has also stated that the appellants who were armed with gun fired at this father Nripat while Nripat was running away. He has also stated that his father fell down in Jwar field. Thereafter also all the five appellants went near Nripat and they fired twice or thrice again. The testimony of Roop Rani and Lakhan Lal goes to show that appellant Gajadhar did not wield his spear on deceased Nripat although he is also stated to have reached very close to Nripat when Nripat had fallen down. In the murderous assault on Asha Ram and Parsuram appellant Gajadhar also had not wielded his spear on them. The written report of the occurrence was prepared by Mool Chand inside his house in the Sahan. Mool Chand has stated that when he was writing the report Asha Ram and Parsuram were speaking. P. W. 2 Ram Kishan has stated that when the report was being prepared by Mool Chand about 15 to 20 persons were present inside the house. He has also stated that persons were talking to both the injured. Ram Kishan has stated that he was driving the cart of injured Asha Ram when he was carrying him to hospital and while carrying Asha Ram he was talking to him. The above statements of Mool Chand and Ram Kishan show that prior to recording of dying declaration of Asha Ram he had the occasion to listen to the talks of several persons who had assembled when written report was being prepared and when he was being carried to hospital. The evidence of instigation and exhortation is a weak type of evidence. The four appellants who were carrying guns were young persons. Their age ranges from 19 to 35 years. They came prepared at the Verandah of Mool Chand and it were they who caused the murderous assault on Asha Ram and Parsuram by firing from their gun and it were they who also chased and caused instantaneous death of Nripat at Puwawa Her by firing from their gun. In the above circumstance, appellants Chhatrapal, Jasiram, Bali Singh and Mahendra hardly needed any exhortation or instigation from appellants, Gajadhar as they came fully prepared at the Verandah of Mool Chand and at Puwawa Har. Appellant, Gajadhar is the father of appellant Mahendra and is uncle of other three appellants. In the above circumstance, appellants Chhatrapal, Jasiram, Bali Singh and Mahendra hardly needed any exhortation or instigation from appellants, Gajadhar as they came fully prepared at the Verandah of Mool Chand and at Puwawa Har. Appellant, Gajadhar is the father of appellant Mahendra and is uncle of other three appellants. On the facts and circumstances, the inclusion of Gajadhar appellant in the crime in question in written report as well as in dying declaration of Asha Ram appears doubtful or it might be due to the impulse of implicating the entire family of the appellants. 12. In view of the aforesaid discussion, participation of appellant, Gajadhar in the crimes in question appears to be doubtful and he is entitled to the benefit of doubt and is, therefore, entitled to be acquitted. 13. In view of the fact that participation of appellant, Gajadhar is doubtful, conviction of appellants under Section 148 I. P. C. is liable to be set aside. 14. The conviction of appellants, Chhatrapal, Jasiram, Bali Singh and Mahendra under Section 302 read with Section 149 I. P. C. and 307 read with Section 149 I. P. C. is altered to 302 read with Section 34, I. P. C. and 307 read with Section 34 I. P. C. It has been held in the case of Amar Singh v. State of Haryana, reported in AIR 1973 Supreme Court page 2221, that it is legally permissible when the fact proved and evidence adduced would have been the same if the accused would have been charged under Section 302 read with Section 34 I. P. C. In such a case failure to charge the accused under Section 34 I. P. C. cannot result in any prejudice. 15. In the result, the appeal is partly allowed. The conviction of appellant, Gajadhar under Section 302 read with Section 149 I. P. C. 307 read with Section 149 I. P. C. and Section 148 I. P. C. is set aside and he is acquitted. 16. Appellants, Chhatrapal, Jasiram, Bali Singh and Mahendra are acquitted of the charge under Section 148 I. P. C. However, they are convicted under Sections 302 read with Section 34 and 307 read with Section 34 I. P. C. The sentences of imprisonment awarded to them call for no interference. Appeal partly allowed. .