JUDGMENT A.K. SINHA, J. The appellant, namely, Dikhit Yadav @ Gorka has been convicted under Section 302/34 of the Indian Penal Code read with 27 of the Arms Act and has been sentenced to undergo rigorous imprisonment for life under section 302/34 of the Indian Penal Code and rigorous imprisonment for one year under Section 27 of the Arms Act. 2. The prosecution, as disclosed in the fardbeyan of the informant, is that in the evening of 18.3.91, the appellant had quarreled with one Sheo Bardhan Singh and had assaulted him and Sheo Bardhan Singh was going to lodge a case at Hanspura Police Station but returned back from mid way and no body spoke anything due to fear of the appellant. Further case of the prosecution is that on the same day at about 10.00 p.m., the informant along with his father Kalu Yadav (deceased) and mother Razia Devi (P.W.1) and the informant's son Ranjit Kumar (P.W.2) were sitting in Dallan where a "Dibri” was burning when the appellant being armed with Gun along with Rajendra Singh, who was armed with pistol came there and appellant flashed torch light, whereupon, the mother of the informant asked who is flashing torch and the deceased asked the appellant as to what is the matter on which the appellant is alleged to have fired upon the deceased, who caught the leg of the appellant and said that what is his fault. It is alleged that the appellant fire upon the deceased, again followed by accused Rajendra Singh, who shot at the deceased from his pistol. The informant fled away towards west and hid himself in the "Khalihan" and both the accused also fled away towards the west. Thereafter, the informant returned back to the place of occurrence and found that his father is lying dead. The informant also noticed four fire arm injury on the chest and leg of the deceased. The informant proceeded for the police station to lodge the information and met the chaukidar at village Salempur and on way to the police station he met the police Officer at village It was where he gave his fardbeyan at 11.15 p.m. i.e. after one hour fifteen minutes of the alleged occurrence. The informant proceeded for the police station to lodge the information and met the chaukidar at village Salempur and on way to the police station he met the police Officer at village It was where he gave his fardbeyan at 11.15 p.m. i.e. after one hour fifteen minutes of the alleged occurrence. The police registered a case under section 302/34 of the Indian Penal Code read with 27 of the Arms Act against the appellant and accused Rajendra Singh and after completing the investigation submitted charge-sheet against them under the aforesaid counts on the basis of which cognizance was taken and the case was committed to the Court of Sessions. 3. The case of the defence is that the appellant is innocent and complete denial of the occurrence. 4. It may be pointed out that both the accused faced trial but at the fag end of the trial accused Rajendra Singh absconded, so, the trial of the appellant was separated after declaring accused Rajendra Singh as absconder. 5. In order to prove the charges, the prosecution examined eleven witnesses, out of whom, P.W. 1 Razia Devi, P.W. 2 Ranjit Kumar, P.WA Ramjanam Singh (informant) are the eye witnesses to the occurrence. P.W. 3 Dr. Shakeel Anjum is the doctor, who conducted post mortem examination on the dead body of the deceased. P.W. 5 Alaudin Khan, is the I.O. of the case and P.W.6 Bali Singh, P.W.7 jagdish Singh, P.W.8 Rajendra Singh, P.W. 9 Bal Govind Yadav, P.W. 10 Surendra Singh and P.W. 11 Sheo Bardhan Singh are the witnesses, who reached at the P.O. soon after the occurrence after hearing the outcry. 6. I would first of all refer to the- evidence of Dr. Shakeel Anjum (P.W.3) who conducted the post mortem examination on the dead body of the deceased on 19.3.91 at 2.30 p.m. and found the following ante mortem injuries on the person of the deceased. "I. Part of the intestine along with omentum was seen through a hole on the left side of anterior chest wall. Undigested rice seen on the intestinal surface. Part of the omentum lacerated. The margin of the hole was irregular, inverted, charred and the wound was directing towards the abdominal cavity. Hole was situated on the left side of anterior chest wall about 3" below left nipple, Size of hole was about 2" in diameter over 9th left inter costal space. II. Part of the omentum lacerated. The margin of the hole was irregular, inverted, charred and the wound was directing towards the abdominal cavity. Hole was situated on the left side of anterior chest wall about 3" below left nipple, Size of hole was about 2" in diameter over 9th left inter costal space. II. One oval hole 1/2" diameter on the lower part of inner size of right thigh about 3" above knee directing posteriorly with inverted and blackened margin. III. An oval hole 1 /2" diameter inverted margin and charred on the medial side of left knee directing posteriorly. IV. One lacerated wound 2" long x 1" wide with charred and irregular margin into skin deep on the medial portion of right axilla. V. One hole oval in shape irregular and charred margin on right side on lower part of posterior surface of neck about 1" diameter. On dissection- I. Skull intact. Brain matter intact and appeared pale II. One pellet found over the 6th and 7th cervical vertebra fracturing Doth the vertebra and lacerated the blood vessels and muscles. III. On opening chest-heart and all chambers were empty. Lung appeared pale. 9th and 10th ribs were fractured in middle diaphyragm was lacerated on left side. IV. On opening abdomen- stomach was lacerated and contained small amount of semi digested food; whole abdominal cavity was full with blood. Spleen was lacerated. Bladder was empty 3 pellets and one cork was found in the abdominal cavity. V. One pellet was removed from the right thigh. VI. One pellet was removed from left knee. Cause of death-Shock caused by haemorrhage due to laceration of spleen and stomach and vital structure of neck leading to death caused by fire arm injuries such as gun and country made pistol. Time elapsed since death till the post mortem examination was within 24 hours" 7. P.W.3 has deposed that injury nos. 2 and 3 as also injury nos. 4 and 5 may be caused by single firing. P.W. 3 has proved the post mortem report (Exhibit-1) and has stated that the recovered pellets were deposited in the office of Dy. Suptd. of Sadar Hospital. 8. In his cross-examination, P.W. 3 has stated that rigor mortis starts after 1-2 hours of death and it disappears after 12 hours and completely disappears after 24 hours. P.W. 3 has proved the post mortem report (Exhibit-1) and has stated that the recovered pellets were deposited in the office of Dy. Suptd. of Sadar Hospital. 8. In his cross-examination, P.W. 3 has stated that rigor mortis starts after 1-2 hours of death and it disappears after 12 hours and completely disappears after 24 hours. He further stated that the age of the injury was determined by him by rigor mortis. He has stated that blackening and charring may be caused if the shot is fired from the distance of three feet and if a shot is fired from a distance of three feet the cartridge will enter the body in block and if shot is fired from a . distance of 10-12 feet then the cartridge wound will spread in an area of about 5" diameter. He further stated that all the five" injuries were separate caused by fire shots. The injury no. 1 was shot from upward to downward and had no' outlet and it is not possible by shots if fired by touching the body. The doctor has stated that diameter of a cartridge end is not of 2" and if a cartridge is fired from within six feet, there is a central aperture surrounded by number of holes spreading in a diameter of 2" and the cartridge will make different holes. He further stated that injury no. 2 is on medial side and was directed posteriorly and had no exit. As regards injury no.3, he stated that entry was from medial side. As regards injury no. 4, he has stated that it is superficial injury and he has not mentioned the direction of the injury n05.4 and 5. He also stated that he did not mention the length and width of injury no. 5. 9. Now coming to the evidence of eye witnesses, 1 find that P.W. 1 Razia Devi, who is none else but the wife of the deceased, has c3tegorically stated that on the alleged date of occurrence at about 10 p.m., she was sitting at Dallan along with her son Ramjanam (informant), Ranjit Kumar (P.W.2) and her husband (deceased) and a "Dibri" was burning there. She further stated that Dukhit Yadav being armed with gun along with Rajendra being armed with pistol came there and Dukhit flashed torch light on which she asked as to who is there and her husband made enquiry by naming the appellant. The appellant fired upon her husband, who fell down and caught the leg of the appellant and said what is his fault whereupon the appellant fired again causing injury near the chest of her husband and blood started oozing from both the injuries and intestine also protruded out. She further stated that accused Rajendra fired on the neck of her husband from close range and due to the injury caused by shots her husband died and both the assailants fled away by announcing that the enmy has been killed. She further stated that her son informed the police on the same night and the police came at the P.O. and recorded her statement on the same night. The motive for the occurrence as disclosed by P.W.1 is land dispute. She also disclosed that on the alleged dale of occurrence the appellant had assaulted Gowardhan who came to take advice from her husband and her husband advised him to institute a police case against the appellant. She also stated that she had litigation with accused Rajendra. 10. In her cross-examination, P.W. 1 has disclosed that the appellant is the own nephew of her husband and all the brothers of her husband are separate since 14-15 years. According to her, Gowardhan is also the nephew of her husband. She has stated that she used to sleep in "Dallan" and the daughter and daughter-in-law used to sleep in the inner section of the house and she remained although at the place of occurrence and left the place after the assailants had fled away. Thereafter, she raised hue and cry in the village and 15-16 villagers came at the place of occurrence after hearing the outcry. P.W.1 has stated that the accused persons had fired from a distance of about 2 cubits and she had clearly identified both the accused when she made enquiry as to who is there. Thereafter, she raised hue and cry in the village and 15-16 villagers came at the place of occurrence after hearing the outcry. P.W.1 has stated that the accused persons had fired from a distance of about 2 cubits and she had clearly identified both the accused when she made enquiry as to who is there. It may be stated that according to the prosecution a "Dibri" was burning at the place of occurrence where this witness along with the deceased and other family members were sitting and the appellant is alleged to have flashed torch light on which P.W.1 enquired as to who is there and her husband (deceased) had asked the appellant by naming him as to what is the matter. So, in the light of the prosecution case, the evidence of P.W.1 that she had identified the appellant at the time of the alleged occurrence looks highly probable and believable. P.W.1 has stated that the police had not seized the "Dibri" which was kept on the "Naad" and blood had fallen on the straw. The attention of the P.W. 1 was drawn to certain statements made by her before the police which has been contradicted by the I.O. (P.W.5) bur those contradictions are not material, inasmuch, as P.W.1 stated that one fire was shot on the thigh and another shot was fired below the chest and intestine had come out but the I.O. (P.W:5) has stated that P.W.1 had not stated before him the location where the shot had hit but the I.O. has stated that P. W.1 stated before him about the firing resorted to by the accused persons. The I.O. has also stated that P.W.1 made statement before him that Rajendra had fired from pistol but had not stated that the shot fired by him caused injury on the neck of her husband and had not stated that Gowardhan had come to take advice from her husband, who advised him to go the police station and. institute a case against the appellant. Barring the above contradictions, other statements as regards the place, time and manner of occurrence as deposed by P.W.1 has remained in fact and the defence could not shake her testimony on those material points. institute a case against the appellant. Barring the above contradictions, other statements as regards the place, time and manner of occurrence as deposed by P.W.1 has remained in fact and the defence could not shake her testimony on those material points. P.W.1, who is an illiterate rustic lady was cross-examined at length but save and except the aforesaid minor variation the defence failed to shake her testimony and no material contradictions could be elicited in her evidence. The I.O. has admitted that P.W. 1 had stated about the firing resorted to by the appellants and accused Rajendra Singh. So, the evidence of P.W. 1 to that effect has been corroborated by the I.O. and it appears that in her evidence P.W.1 has only tried to clarify by stating about the location where the shot fired by the appellants had caused injury. Therefore, it can not be said that there is any contradictions in her statement and at best it can be said that who tried to explain the injury which was caused due to fire shot by the accused. 11. P.W. 2 Ranjit Kumar is another witness, who was aged about ten years at the time of alleged occurrence. He has fully supported the prosecution story as depicted in the fardbeyan and has stated that the police had come in the night itself and he recorded his statement and also took away the dead body. This witness was also cross-examined at length and he has given the vivid picture regarding the occurrence by stating that he had identified both the accused when they had come at the place of occurrence being armed with gun and pistol. He further stated that at first the appellant announce to kill and thereafter he fired twice followed by Rajendra, who also fired upon his grand father and thereafter both of them fled away towards west. He has stated that after the departure of the accused persons alarm was raised and about fifteen villagers came at the place of occurrence. He has named Bali Singh (P.W. 6), Rajendra Singh (P.W. 8), Jagdish Singh (P.W. 7), Surendra Singh (P.W.10) and Govind Singh (P.W.9). He also stated that his grand father was wearing vest on which five holes were caused due to firing. He has named Bali Singh (P.W. 6), Rajendra Singh (P.W. 8), Jagdish Singh (P.W. 7), Surendra Singh (P.W.10) and Govind Singh (P.W.9). He also stated that his grand father was wearing vest on which five holes were caused due to firing. The defence confronted P.W.2 with the statements made by him before the police and similar contradictions were tried to be elicited from his evidence by drawing the attention of the I.O. as in the case of P.W.1, but as stated above those minor variation in the evidence of P.W.2, does not cut any ice to disbelive his evidence. The evidence of P.W. 2 who is child witness who was subjected to lengthy cross-examination appears to be natural and trustworthy as he remained quite unshaken in his cross-examination on all the material points. 12. P.W. 4 Ram Janam Singh, who is the informant of this case, has fully supported the prosecution story as set forth in the fard bayan and has stated that after the occurrence he was going to the police station to lodge the information and met the I.O. at village Itawa where his fard bayan ,(Exhibit-3) was recorded and he came to the place of occurrence along with the I.O., who saw the dead body of the deceased and prepared the inquest report (Exhibit-6). It may be stated here that the I.O. has also corroborated the statement of P.W.4 by deposing that on 18.3.91 he was on patrolling duty at village Itawa where he met the informant, who disclosed to him about the murder of his father committed by the appellant and Rajendra Singh, so, he recorded his fard beyan (Exhibit3) at 11.15 p.m. P.W. 4 has also stated that on the alleged date of occurrence the appellant had assaulted Gowardhan, who came to take advice from his father arid his father advised him to go to the police station and institute a case and he also stated that land dispute was going on between his father and the accused persons and due to above reasons his father was murdered. This witness was also cross-examined at length and to a Court question he replied that he had hid himself in the "Khalihan" after the departure of the accused persons. This witness was also cross-examined at length and to a Court question he replied that he had hid himself in the "Khalihan" after the departure of the accused persons. He has further stated that he raised hue and cry "Khalihan." and he along with his mother (P.W.1) and son Ranjit (P. W. 2) were crying and 15-20 villagers assembled on his outcry. He stayed in the "Khalihan" for 4-5 minutes and again came in the "Dallan" where the alleged occurrence took place. He further stated that the police party came at the place of occurrence at about 1.00 A.M. and took away the dead body in the night itself. He has also stated that his family members used to sleep in "Dallan" on straw and a “Dibri” was kept towards south of "Dallan" and he did not flee away when the accused persons had fired. He also stated that his father (deceased) had caught the leg of the appellant in sitting position and at that time the appellant was near his father. He also stated that a "Dibri" was burning when the accused persons had come and the appellant flashed torch on the faces of the family members, who were sitting in "Dallan". According to him, "Dibri" was giving sufficient light. Like P.Ws. 1 and 2, the defence tried to elicit contradictions in the evidence of P.W.4 also as regards the location of injury and P.W.4 has also stated like them that he had made statement before the police about the locations where the shot fired by the appellant and Rajendra Singh caused injury but the I.O. has denied that he made such statement before him. In my view at best, it can be said that P.W.4 only elaborated his statement by deposing that the shots fired by the appellant and his associates had caused injury on thigh chest and neck of the deceased. P.W.4 has remained quite unshaken on all other material points and nothing has been elicited in his evidence which may render his version unworthy of placing credence to. . 13. P.W.6 Bali Singh, P.W 7 Jagdish Singh, P.W.8 Rajendra Singh, P.W.9Bal Govind Yadav, P.W. 10 Surendra Singh and P.W.11 Sheobardhan Singh are the witnesses who reached at the place of occurrence after hearing the sound of firing and they have unequivocally stated that when they reached at the place of occurrence they found that the informant. . 13. P.W.6 Bali Singh, P.W 7 Jagdish Singh, P.W.8 Rajendra Singh, P.W.9Bal Govind Yadav, P.W. 10 Surendra Singh and P.W.11 Sheobardhan Singh are the witnesses who reached at the place of occurrence after hearing the sound of firing and they have unequivocally stated that when they reached at the place of occurrence they found that the informant. his mother and son were crying and the deceased was lying dead and blood was oozing out from his chest, thigh and neck and the informant, his mother and the informant's son disclosed to them that Dukhit and Rajendra fled away after firing from gun and pistol. They have also stated that a "Dibri" was burning at the place of the occurrence and the police came at the place of occurrence in the night itself. The statement of P.W.6 was recorded in the same night, whereas, statement of P.Ws.7 to 11 was recorded on the following date. P.Ws. 7, 8, 9 and 10 have also stated that when they were going towards the place of occurrence they heard the appellant saying that he has killed the enemy and also made challenging announcement. P.Ws. 7 to 11 have also stated unequivocally that on the alleged date of occurrence a quarrel had taken place between the appellant and Sheobardhan (P.W.11) in which the appellant had assaulted Sheobardhan. P.W. 9 has stated that the deceased had advised Sheobardhan to go to the police station and institute a case P.W.11 Sheobardhan has also corroborated that the appellant has assaulted him, his wife, his mother and daughter at 4.00 p.m. on the alleged date of occurrence and the deceased had advised him to go to the police and institute a case against the appellant and when he was going to the police station, the appellant had terrorized him on the way, so out of fear, he returned back. He has also stated about the dispute going on between the deceased and the appellant. Therefore, the evidence of P.Ws. He has also stated about the dispute going on between the deceased and the appellant. Therefore, the evidence of P.Ws. 7 and 11 corroborates the prosecution version as regards the motive for the alleged occurrence arid their evidence also go to show that soon after the alleged occurrence they had gone to the place of occurrence on hearing the hue and cry as also the sound of firing and the informant, his mother and son had disclosed to them the name of the appellant as also the name of accused Rajendra Singh (absconding), who fired upon the deceased with their respective gun and pistol. The evidence of P.Ws. 7 and 11 is relevant as immediately after the occurrence the witnesses had disclosed to them the name of the appellant as also the name of Rajendra Singh as the assailants and there appears no reason to disbelieve their version. 14. P.W.5 is the I.O. of the case who has stated that he recorded the fardbeyan (Exhibit-3) of the informant at village Itawa and went to the place of occurrence He has given the detailed description of the P.O. land and has stated that the "Dallan" of the informant is situated adjacent to the P.O. and he also noticed blood at the P.O. The I.O. has stated that he prepared the inquest report (Exhibit-6) and, recorded the statement of P.Ws.1 and 2 and searched the house of the accused persons, who were absconding. Thereafter, he took away the dead body for post mortem examination. The I.O. has also proved the formal F.I.R. (Exhibit-5). P.W.5 has admitted that he did not seize anything from the P.O. nor prepared any seizure list nor he seized any incriminating article from the house of the accused persons. The attention of the I.O. was drawn to the certain statements made by P.Ws. 1 to 4 which have been discussed above, and barring that I do not find anything worth comment in the evidence of the I.O., whose statement fully corroborates the prosecution version. 15. I find that the evidence of the eye witnesses has been supported by the medical evidence of P.W.3 which has been discussed above. 16. 1 to 4 which have been discussed above, and barring that I do not find anything worth comment in the evidence of the I.O., whose statement fully corroborates the prosecution version. 15. I find that the evidence of the eye witnesses has been supported by the medical evidence of P.W.3 which has been discussed above. 16. Learned counsel appearing for the appellant submitted that the appellant has been falsely implicated in the case due to enmity and, as a matter of fact, no body had seen the occurrence and the manner of occurrence as stated by the witnesses the F.I.R. is not probable. The submission of the learned counsel has got no substance and is devoid of any merit, inasmuch, as the evidence discussed above would go to show that the three eye witnesses have fully supported the case of the prosecution and besides that other village witnesses have also corroborated the prosecution version by deposing that the informant and other witnesses had disclosed to them the ,name of the assailants immediately after the occurrence when they reached on hearing sound of' firing and outcry raised by them. Some of them also stated that while they were going to the place of occurrence they heard the appellant saying that he has killed his enemy and he also made challenging announcement. It is also significant to point out that the alleged occurrence took place at about10.00 p.m. and the fardbeyan of the informant was lodged after one hour fifteen minutes. So, the promptitude with which the F.I.R. of this case was lodged rules out the possibility of any false implication of the• accused or the concoction of the prosecution case. Therefore, the prompt lodging of the F.I.R. itself is a circumstance which shows that the prosecution story is true and worth belief. I also find that the prosecution witnesses have proved the motive for the alleged occurrence. 17. On careful consideration of the facts, circumstances and the materials on the record, I am of the view that the eye witnesses of the present case are trustworthy witnesses who had proved the prosecution case by making consistent and corroborative statements and their evidence have been corroborated by the medical evidence as also by the evidence of other witnesses. 17. On careful consideration of the facts, circumstances and the materials on the record, I am of the view that the eye witnesses of the present case are trustworthy witnesses who had proved the prosecution case by making consistent and corroborative statements and their evidence have been corroborated by the medical evidence as also by the evidence of other witnesses. Therefore, I am of the view that the learned trial Court rightly convicted the appellant in the manner as stated above and the order of conviction as recorded by the trial court does not call for any interference by this Court. Accordingly, the order of conviction and sentence as recorded by the trial Court are upheld. 18. In the result, I do not find any merit in this appeal which stands dismissed. The appellant who is in custody shall serve out the remaining part of the sentence.