Judgment BRAJ NANDAN PRASAD SINGH, J. 1. Since two Honble Judges of this Court were not unanimous in their verdicts in Criminal Appeal Nos. 441 of 1994 and 509 of 1994, while deciding culpability of the appellants, who suffered. conviction on different counts by the trial Court, the matter has come to reference to this Court under orders of Honble Chief Justice as enjoined under Section 392 of the Code of Criminal Procedure, and this is how that this Court is required to assess probative value of evidence of witnesses independently without being obsessed with the finding of the Honble Judges. 2. At the outset I may refer to some of the salient features of the prosecution case centering round the incident in question. Shorn of details, the factual matrix appearing in the fardbeyan of Amarjit Kumar Verma (PW 7) and also narrations made by the witnesses at trial which have fairly spelt out in the judgment of the Court below, are that in the intervening nights of 5/6th October, 1989 at about mid-night, while Rabindra Prasad (PW 6) had slept at the roof of house along with his family members, he got awakened when the appellants came there holding arms with them. It was alleged that Ram Pravesh Nonia made enquiries about whereabout of Amarjit Kumar Verma, pursuant to which, said Ram Pravesh Nonia not only exhorted but also put pistol on neck of Rabindra Prasad, and after the latter made resistance on catching hold of hand of Ram Pravesh Nonia, Bhattu Nonia pressed his hand. It was alleged that shortly after that, Ram Pravesh Nonia fired a shot on the neck of Rabindra Prasad and while retreating, Bhattu Nonia shot dead Anita Kumari, who was sleeping, some distance, at further case of the prosecution was that when on hearing of sound of firing, both Sanjiv Kumar (FW 3) and Amarjit Kumar Verma (PW 7) rushed to the house of Rabindra Prasad, noticed appellants passing through the lane holding fire arms, and found Anita Kumari dead smeared with blood at roof of house. They also noticed Rabindra Prasad (PW 6) with bleeding injuries on his person. It was alleged that when enquiries were made by these two persons, about the incident, they were told by Rabindra Prasad (PW 6) that while Ram Prasad Noma fired shot causing injuries on his neck, Anita was short dead by Bhattu Nonia. They also noticed Rabindra Prasad (PW 6) with bleeding injuries on his person. It was alleged that when enquiries were made by these two persons, about the incident, they were told by Rabindra Prasad (PW 6) that while Ram Prasad Noma fired shot causing injuries on his neck, Anita was short dead by Bhattu Nonia. The incident in question was suggested to the off shoot of long standing enmity between the parties generated by heat of bitterness, arising out of land dispute. It was Amarjit Kumar Verma (PW 7) who set the criminal law in motion after rendering his statement at 2.40 hours on 6th October, 1989 before the Police at Primary Health Centre, Harnaut, where his injured father was sent for primary treatment. The investigation followed, in course of which police officer visited place of occurrence, secured injury report of the injured, sent the dead body of Anita Kumari for post mortem examination, recorded statement of witnesses, seized blood stained clothes and also earth, from the place of occurrence, noticed mark of violence on the tiles of the roof, and on conclusion of investigation laid charge sheet before the Court. In the eventual trial that commenced, the State examined altogether ten witnesses which include the injured, family members of the deceased, the police officer and also two doctors one of them held autopsy over the dead body of Anita Kumari and the other, who clinically examined the injuries, noticed on the person of Rabindra Prasad. 3. The evidence of the appellants both before the Court below and this Court had been plea of innocence and they ascribed false implication due to land dispute which was of long standing, notwithstanding last verdict having done in their favour. The trial Judge, however, on critically analysing the evidences placed on the record, while negativing contentions raised at bar on behalf of the appellants about their plea of innocence, recorded verdict of guilt, finding appellants guilty under Section 449 of the Indian Penal Code and sentences them to suffer rigorous imprisonment for a term of seven years. The appellants suffered conviction also under Section 27 of the Arms Act for which they were sentenced to suffer rigorous imprisonment for a term of three years. Bhatto Nonia suffered conviction under Section 302 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for life. The appellants suffered conviction also under Section 27 of the Arms Act for which they were sentenced to suffer rigorous imprisonment for a term of three years. Bhatto Nonia suffered conviction under Section 302 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for life. He suffered conviction also under Section 307/34 of the Indian Penal Code, for which he was sentenced to suffer rigorous imprisonment for a term of seven years. As for Ram Pravesh Nonia he suffered conviction also under Section 307 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for a term of seven years. As for Birjey Nonia, who was suggested to be the non-assailant, he too suffered conviction under Section 307/34 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for a term of seven years. All the sentences were, however, directed by the trial Court, to run concurrently. 4. Manifold contentions were raised at bar on behalf of the appellants ostensibly to assail the finding recorded by the Court below. However, before I appreciate these contentions, I wish to analyse evidences for their correct appreciation in proper perspective. 5. Reiterating his early assertions made before the police which he rendered, to set the bail in motion, Amarjit Kumar Verma (PW 7) would state to have noticed appellants, making good their escape with arms from the window, when he came down stairs on hearing sounds of firing, along with Sanjiv Kumar (PW 3). He along with said Sanjiv Kumar, rushed to the house of Rabindra Prasad (PW 6) where he noticed Anita Kumari lying dead smeared with blood. About Rabindra Prasad the witness states that he too had bleeding injury on his person and all about the incident was disclosed to him by Rabindra Prasad, who stated that Ram Pravesh Nonia exhorting others to kill him, fired a shot on his neck causing injury on his person. Narrations akin to his earliest version, were made by the witness, about Bhatto Nonia having shot dead Anita Kumari who had slept at some distance from Rabindra Prasad, at cot. 6. Arun Kumar (PW 1) was not an ocular witness. He stated at trial that on the ground of firing when he rushed to the house of Rabindra Prasad, he found his family members lamenting over the death of Anita Kumari/ who was lying dead on cot. 6. Arun Kumar (PW 1) was not an ocular witness. He stated at trial that on the ground of firing when he rushed to the house of Rabindra Prasad, he found his family members lamenting over the death of Anita Kumari/ who was lying dead on cot. Rabindra Prasad too had bleeding injury on his person who was carried on Harnaut Hospital. He stated to have learnt incident from mother of Anita Kumari, and also Sanjiv Kumar, about complicity of the appellants and also Bijon Nonia, who after committing offence had made good their escape. The witness states also about seizure of blood stained clothes from the bed of Rabindra Prasad and also Anita Kumari. 7. Sanjiv Kumar Sinha (PW 2) happened to be family member of Rabindra Prasad, who stated to have slept that night over the roof of house along with his family members. He stated to have got awakened on the sound of firing when noticed two persons ration. Yet he remains a witness to the seizure of blood stained clothes from the place of occurrence. Identification of appellant in Court for the first time by Sanjay Kumar Sinha (PW 2) and Kaushaliya Devi (PW 5) was, admittedly, of one significance, though they are witness to shooting incident. Though PWs 3, 4 and 7 were not witnesses of either killing of Anita Kumari or injuries caused to Rabindra Prasad their evidences had lent ample corroboration to the edifice of the prosecution case, about Rabindra Prasad having sustained injuries and Anita Kumari having been shot dead in the same transaction. Narrations made by Rabindra Prasad to the persons who came to his house, shortly, after the incident, and these persons reproducing these narrations in the same vein was admissible in evidence and that corroborates ocular account given by Rabindra Prasad. Even the doctor, who had held autopsy over the dead body of Anita Kumari, had recorded a positive finding about cause of death of Anita Kumari. The doctor, who clinically examined Rabindra Prasad, too had recorded positive finding about lacerated wounds on the person of Rabindra Prasad, and positive finding of the two doctors too would render assurance to the prosecution allegation about Rabindra Prasad having sustained injuries by fire arm and Anita Kumari having been shot dead by fire arm. The doctor, who clinically examined Rabindra Prasad, too had recorded positive finding about lacerated wounds on the person of Rabindra Prasad, and positive finding of the two doctors too would render assurance to the prosecution allegation about Rabindra Prasad having sustained injuries by fire arm and Anita Kumari having been shot dead by fire arm. Even the police officer who visited the P.O. had recorded objective findings about presence of blood and also clothes of Rabindra Prasad and Anita Kumari kept on their beds, to be stained with blood, and these circumstances too would operate adverse to the appellants, in view of the evidence of other witnesses that was placed on the record. 8. Some of the arguments canvassed at bar may be noticed, though ex-facie they appear to be fragile. Contentions were raised that even though prosecution case suffered major contradiction, either they were condoned or lightly brushed aside by the trial Court. Contentions are raised that while some witnesses were stating at trial that Anita Kumari ws quite adult, who was reading in LA. class, recitals made in the fardbeyan would suggest her to be minor. However, I find that quite in conformity with the tenor of fardbeyan, the doctor too who held autopsy found age of deceased Anita Kumari about fourteen years. Be that as it may, even if there be variation in fardbeyan and evidence of family members about age of he deceased, death of Anita remaining not in dispute, this was not a vital factor to negative prosecution allegation that was attributed to the appellants. Contentions are raised that though appellants were quite known to the family members of Rabindra Prasad, it was most unlikely that they would go to commit offence without taking prosecution for concealment of their identity. This argument too was devoid of merit for the reason that instances are not very uncommon that the offences were committed even by known persons in broad day light without consealment of identity. It is stated at bar that had Anita Kumari been shot dead from a close range. It was most unlikely that other persons sleeping in the close vicinity, would have not bear blood stains on their clothes. It is stated at bar that had Anita Kumari been shot dead from a close range. It was most unlikely that other persons sleeping in the close vicinity, would have not bear blood stains on their clothes. Yet it is stated that, though Rabindra Prasad was stating at trial that there was trail of blood on the ground oozing from his wounds when he made endeavours to chase the assailants, there was no such finding of the police officer about there being any such blood trail on the place of occurrence. The apprehension of Bhattu Nonia from his house shortly after the incident was also taken to be a ground to suggest his bona fide and innocence, and the other argument was that identification made by PWs 2 and 5 for the first time in Court did not deserve credence. 9. Much of these arguments which have been canvassed at bar are matter of petty details, which do not befog real issue and did not materially affect edifice of the prosecution case. From narrations made by witnesses and also Exhibit A series placed on the record. It would be, however, quite explicit that parties were on litigating terms and it cannot be said that they were not at loggers heads. The enmity, as well known, provides motive for commission of offence and also for false implication. Since parties had been on litigating terms for land dispute for sometime past, this possibility too cannot be ruled out that the incident was off shoot of the land dispute pending between the parties. 10. Having critically analysed evidences placed on the record, attending circumstances of the case and also the contentions raised at bar, I uphold the finding recorded by Court below against the appellants under Section 449 of the Indian Penal Code and also under Section 27 of the Arms Act. However, since the prosecution was launched against the appellants in the year 1989 and they have suffered ordeal of protracted prosecution for about thirteen years, sentence of seven years awarded against the appellants under Section 449 of the Indian Penal Code is reduced to four years and, similarly, sentence imposed on them under Section 27 of the Arms Act is reduced to a term of two years. The finding recorded by Court below against Bhattu Nonia under Section 302 of the Indian Penal Code and also the sentence awarded to him is affirmed, however, his conviction and sentence under Section 307/34, IPC is set aside and he is sentenced to a term of three years under Section 324/34, IPC, he being the assailant of deceased Anita Kumari. So far case of Ram Pravesh Nonia was concerned, the accusation against him was about exhorting associates and also causing fire arm injuries on the person of Rabindra Prasad. Though the doctor, who examined Rabindra Prasad did not record finding about nature of injuries, witnesses state that he was referred to Patna Medical College Hospital but neither any finding of doctor of P.M.C.H. nor bed head ticket was placed on the record. There was no intervening circumstance, to desist assailant from translating his design into action. There was no allegation about repetition of blow against Ram Pravesh Nonia and, in that view of the matter, his case would squarely fall within mischief of Section 324 of the Indian Penal Code. However, while setting aside his conviction under Section 307 of the Indian Penal Code arid also the sentence imposed on him, he is found guilty under Section 324 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for a term of three years. Birje Nonia too suffered conviction under Section 307/34 of the Indian Penal Code. He was non-assailant and though he was suggested to have held fire arms, there was no accusation about its use by him, and, in that view of the matter, on the analogy which have been applied in case of Ram Pravesh Nonia, verdict recorded by trial Court finding him guilty under Section 307/34 of the Indian Penal Code is set aside and he too is found guilty under Section 324/34 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for a term of three years. Those who suffered conviction on two counts and were sentenced as such, sentences in their cases shall, however, run concurrently. 11. With this modification both the appeals being meritless are dismissed. Since Birje Nonia and Ram Pravesh Nonia are on bail, their bail bonds are cancelled and it is directed that the trial Court shall take coercive steps for their apprehension and take them to custody to serve out the sentences recorded.