M. C. JAM, K. N. OJHA, JJ. ( 1 ) INSTANT Criminal Appeal has been preferred against order of conviction and sentence dated 30/6/1981 passed by 3rd Additional Sessions Judge, Shahjahan-pur, in S. T. No. 418 of 1980, State of U. P. v. Ram Shanker and others by which the appellants Ram Shanker son of Chhottey Lal, Ram Bharose, Dharmendra, Om Prakash, Satish, Ram Shanker son of Rudra Prasad and Pappu alias Suresh were held guilty under Sections 148, 452 and 302 read with Section 149 I. P. C. and each one of them was sentenced to undergo R. I. of 18 months, 18 months and life imprisonment, respectively. The sentences were directed to run concurrently. ( 2 ) THE appellant No. 2, Ram Bharosey and appellant No. 6, Ram Shanker son of Rudra Prasad died during pendency of the appeal, hence the appeal filed by them stood abated. Rest appellants are on bail. ( 3 ) WE have heard Sri P. N. Mishra, learned counsel for the appellants and Sri A. K. Dwivedi, learned AGA for the State and have gone through the record. ( 4 ) ACCORDING to prosecution all the accused-appellants were residents of village Parawnia, police station Jaitipur, district Shahjahanpur. Informant Mewa Ram was also resident of the same village. About 1-1/2 or 2 years before this occurrence, the appellant Ram Shanker son of Chhotey Lal had lodged an FIR against Dinesh Kumar, Ram Rakshpal, Rampal and Girish Kumar, sons of complainant Mewa Ram under Section 307 I. P. C. All these four sons of the informant were convicted in that case. They had preferred an appeal and were on bail. The accused-appellants took it in bad taste and were nursing bad blood against the informant and his sons. Besides, there was dispute relating to a house between Shri Krishna father of accused Pappu and the informant with his four sons and litigation had taken place under Section 107 Cr. P. C. ( 5 ) APPELLANT Ram Shanker son of Chhotey Lal is real brother of appellant Ram Bharosey. Appellant Dharmendra is son of appellant Ram Shanker. Rest accused-appellants are either members of the family of Ram Shanker or his relatives. ( 6 ) THE incident took place on 15-8-1979 at about 9. 30 P. M. It was Janmashtami. P. C. ( 5 ) APPELLANT Ram Shanker son of Chhotey Lal is real brother of appellant Ram Bharosey. Appellant Dharmendra is son of appellant Ram Shanker. Rest accused-appellants are either members of the family of Ram Shanker or his relatives. ( 6 ) THE incident took place on 15-8-1979 at about 9. 30 P. M. It was Janmashtami. Dinesh Kumar and Girish Kumar sons of Mewa Ram, Smt. Ramlall, wife of Mewa Ram, Ram Rakshpal son of Mewa Ram and Smt. Neha wife of Ram Rakshapal were busy in worship; Om Prakash and Ram Bharosey armed with their licensed guns, Dharmendra, Satish and Ram Shanker sons of Chhotey Lal armed with country made pistols and Pappu alias Suresh and Ram Shanker son of Rudra Prasad armed with guns entered into the house of the informant through eastern side where there was no gate. Lantern and Dhibari were glowing. When Mewa Ram, informant objected to it his son Ram Rakshpal came out of the kitchen. On Prakash fired on him and the shot hit him (Ram Rakshapal ). There-after, other accused also fired and Ram Rakshapal fell down on the spot. When alarm was raised by Mewa Ram, his nephews Ishwar Chand and Suraj Pal PW 2 with their torches reached the roof and saw the accused persons inside the house of the informant. After committing the crime, the accused persons made their escape good. Mewa Ram went near his son Ram Rakshpal and found his son to be dead. Due to fear, Mewa Ram could not proceed immediately to the police station, which was at the distance of about four miles from the village. He ultimately got FIR scribed from one Ram Sahai resident of the same village and lodged it at police station Jaitipur on 16-8-1979 at 4. 45 A. M. against the appellants. ( 7 ) INVESTIGATION was started by PW 8 Har Prasad Sharma S. I. who reached the spot, recorded statements of wit-nesses, prepare site plan exhibit Ka 9, took blood stained and plain earth from spot, prepared recovery memo of torches, Dhibari, lantern, recovered four cart-ridges from the spot, found pellets in the western wall and prepared inquest report on 16-8-1979. ( 8 ) POST mortem examination on the dead body of Ram Rakshpal was conducted by Dr. M. L. Tandon, PW 6, on 17-8-1979 at 2. ( 8 ) POST mortem examination on the dead body of Ram Rakshpal was conducted by Dr. M. L. Tandon, PW 6, on 17-8-1979 at 2. 30 P. M. in mortuary of District Hospital, Shahjahanpur. In his opinion, probable age of the deceased was 31 years and death had taken place about 3/4 days before. Rigor mortis had passed off from both upper extremities but was slightly present in lower extremities. The following ante mortem injuries were found on the body of the deceased 1. Gunshot wound of entry 0. 5 cm. x 0. 5 cm x bone deep on right side of face. No blackening around wound was pre-sent. Margins were inverted. Right side ramous and right mandible was fractured. 2. Gunshot wound of entry 0. 5 cm x 0. 5 cm x muscle deep on right side neck, 4 cm below right angle of jaw, direction from right back to left. Margins were inverted. No blackening or charring was present. 3. Gunshot wound of entry 0. 5 cm x 0. 5 cm x chest cavity deep through and through on right side chest, 8 cm above right nipple at 11 Oclock position from nipple. 4. Gunshot wound of exit 1cm x 2 cm x cavity deep through and through corresponding to injury No. 3 on back of right shoulder, 9 cm below tip of right shoulder posterior. Margins were inverted. 3rd right side rib was fractured. Pleura and right lung were lacerated. Small intestine was empty. There was faecal matter in the large intestine. In the opinion of the doctor, the death had taken place due to shock and haemorrhage as a result of ante-mortem gunshot injuries. ( 9 ) LATER on, investigation was taken up by PW 5 Sachchidanand Misra, S. I. , who submitted charge sheet against the accused on 7-10-1979. ( 10 ) THE accused denied their participation in the crime. It was alleged that due to enmity, they had been falsely involved in the case. It was also alleged that the deceased Ram Rakshapal was living in Tilhar, district Shahjahanpur, and not in the village Parwnia. He was murdered elsewhere. His dead body was carried to the village and the accused appellants were falsely implicated in the case. It was further alleged that the FIR was ante-timed. It was also alleged that the deceased Ram Rakshapal was living in Tilhar, district Shahjahanpur, and not in the village Parwnia. He was murdered elsewhere. His dead body was carried to the village and the accused appellants were falsely implicated in the case. It was further alleged that the FIR was ante-timed. The defence of Om Prakash was that he was relative of Ram Shanker son of Chhotey Lal, who had enmity with the complainant. Besides, he was a witness in a gambling case against Surajpal, PW 2, who is nephew of the informant Mewa Ram. Therefore, he was falsely involved in the case. The case of accused appellant Pappu alias Suresh was that litigation had taken place between his father and Mewa Ram in respect of a house, so he had been falsely roped in the case. The defence of accused appellant Dharmendra was that being relative of Ram Shanker, appellant No. 1, he was falsely arrayed as an accused. ( 11 ) IN this case, besides medical evidence and that relating to investigation, three eyewitnesses have been examined by the prosecution. They are PW 1 Mewa Ram, PW 2 Suraj Pal and PW 4 Dinesh Kumar son of Mewa Ram. ( 12 ) PW 1 Mewa Ram, informant, deposed that the appellant Ram Shanker son of Chhottey Lal had filed a criminal case under Section 307 I. P. C. about 1-1/2 or 2 years before the murder of his son Ram Rakshapal, against his four sons Ram Rakshapal, Rampal, Dinesh Kumar and Girish Kumar in which they were convicted but were released on bail in appeal, hence Ram Shanker and other accused persons were nursing bad blood against him and his sons. The appellant Ram Shanker son of Rudra Prasad and Rameshwar (father of appellant Satish) are Mausera brothers. Accused Om Prakash is son of Rameshwars sister. He further stated that there was no gate in eastern exit of his house. Therefore, Om Prakash and other accused entered into his house. All the accused were residents of the village of the complainant. Itwas Janmashtami and time was about 9. 30 P. M. when all accused persons (he named them all with their weapons as mentioned earlier) entered into his house through eastern side. Om Prakash fired with his gun on Ram Rakshapal, who fell down. Om Prakash went back some steps and then other accused persons fired. Itwas Janmashtami and time was about 9. 30 P. M. when all accused persons (he named them all with their weapons as mentioned earlier) entered into his house through eastern side. Om Prakash fired with his gun on Ram Rakshapal, who fell down. Om Prakash went back some steps and then other accused persons fired. He deposed that four used cart-ridges and blood were found on the spot. After the occurrence it started raining and the dead body was shifted beneath Chhappar. He further stated that due to fear, he could not pick up courage to immediately go to the police station and started after about two hours to go to the police station on foot. Thus, PW 1 Mewa Ram, who is informant and is father of the victim has fully supported the prosecution version. He is a natural witness, the incident having taken place at his house in the night. ( 13 ) PW 2 Surajpal is nephew of the informant Mewa Ram. His house is adjacent to the house of Mewa Ram and his name finds place in the FIR as an eyewitness of the occurrence. He has corroborated the statement of PW 1 Mewa Ram that he was present on his roof at about 9. 30 P. M. The accused including Om Prakash entered into the house of Mewa Ram. When alarm was raised, he went from his roof to the roof of Mewa Ram and saw the accused persons including accused Om Prakash in the light of torch. Om Prakash fired on Ram Rakshpal and then other accused persons also fired on Ram Rakshpal, who met instantaneous death. The accused persons were seen in the light of lantern, glowing Dhibari and torch light flashed by Ishwar Chand with whom he had reached the roof of Mewa Ram. After the incident, the accused ran to north-east side. The roof of the house of this witness being contiguous to that of Mewa Ram, it was quite possible for him to hear the alarm and to reach the roof of Mewa Ram to find out as to what was happening. Thus, his presence on the spot was natural, inspiring confidence in his statement. ( 14 ) THE third eyewitness of the occurrence is PW 4 Dinesh Kumar son of Mewa Ram, informant. Thus, his presence on the spot was natural, inspiring confidence in his statement. ( 14 ) THE third eyewitness of the occurrence is PW 4 Dinesh Kumar son of Mewa Ram, informant. His statement falls in line of the testimonial assertions of PW 1 Mewa Ram and PW 2 Suraj Pal. He has deposed about motive, light, active participation of Om Prakash in the commission of the murder and other circumstances of this case. ( 15 ) THUS, all the three eyewitnesses, even though they are interested and partisan witnesses, have made consis-tent and natural statements. ( 16 ) IT has been argued by the learned counsel for the appellants that there was no adequate motive to commit murder of Ram Rakshapal; FIR is ante-timed; there was no sufficient light in which real culprit (s) could be seen; all the three fact witnesses examined by the prosecution are interested and no independent witness has been examined and blood was not found on the spot. It is also submitted that if all seven accused would have been armed with firearms, some more injuries would have been caused to the deceased and some injuries would have been caused to other inmates also. ( 17 ) A perusal of the FIR and statements of the witnesses shows that sons of the complainant Mewa Ram including deceased Ram Rakshpal were convicted by Sessions Court. Appeal was filed in the High Court and the deceased and his brothers were enlarged on bail. Besides, a case under Section 107 Cr. P. C. also was contested between the parties. Therefore, there was occasion for the accused to be aggrieved. They, thus, had motive to commit this crime, though motive is not very significant in this case because direct eyewitness account is available. ( 18 ) THE occurrence took place on 15-8-1979 at 9. 30 P. M. The police station was at the distance of four miles from the scene of occurrence. FIR was lodged on 16-8-1979 at 4. 45 A. M. The informant PW 1 Mewa Ram explained that he was fear-stricken and took some time to pick up courage after getting the FIR written from the Ram Sahai of his village and then went to the police station on foot. The FIR was lodged the same night within about 7 hours after the occurrence. Thus, the FIR was promptly lodged, which excludes deliberation and consultation. The FIR was lodged the same night within about 7 hours after the occurrence. Thus, the FIR was promptly lodged, which excludes deliberation and consultation. ( 19 ) STATEMENTS of witnesses as well as of the investigating officer show that there was light of glowing Dhibari lantern and torches. It was night of Janamshtami Worship was going on and thus everyone was awaking. The parties were well known to each other and as such the witnesses could well recognize the accused. ( 20 ) THE Investigating Officer stated that blood was found on the spot and he prepared recovery memo. Witnesses have stated that after the occurrence took place, it had rained. Much blood was washed away. The dead body was shifted under Chhappar while occurrence had taken place in the courtyard of the house. Blood was found in the courtyard, pellets were found in the western wall and four used cartridges were recovered from courtyard. Thus, evidence confirms the place of murder as the courtyard of the house of Mewa Ram, informant. ( 21 ) THE learned counsel for the accused has criticised that independent witnesses were not examined in this case. As is evident from the evidence that each one was busy in worship on account of Janamashtami In such circumstances presence of deceased and his family members only on the spot appears natural. Therefore, if only interested and partisan witnesses had been examined, their testimony could not be disbelieved. In Angnoo v. State of it has been held by Honble the Apex Court that if witness is brother of the deceased, fact of his relationship would add to value of his evidence because he would be interested in getting the real culprit, rather than innocent persons, punished. ( 22 ) IN Piara Singh and others v. State of Punjab, it has been laid down by Honble the Apex Court that the evidence of interested or inimical witnesses has to be scrutinized with care but cannot be rejected merely on the ground of being a partisan evidence. If on perusal of the evidence the Court is satisfied that the evidence is creditworthy, there is no bar to the court relying on the said evidence. If on perusal of the evidence the Court is satisfied that the evidence is creditworthy, there is no bar to the court relying on the said evidence. ( 23 ) IN State of U. P. v. Suresh alias Chha van and others, it has been held by Honble the Apex Court that statement of a family member of the deceased cannot be rejected on the ground that he is related to the victim. What is required is that the statement is to be scrutinized with care. ( 24 ) IN this case all the three fact witnesses are of the family of the deceased. What is required is that their evidence is to be appreciated with greater care and caution, but it cannot be disbelieved merely because they are related to the deceased. ( 25 ) THE three eyewitnesses are PW 1 Mewa Ram, PW 2 Surajpal and PW 4 Dinesh Kumar, real brothers of the deceased. It was the time of Janam-ashtami. Therefore, their presence at their residence was natural. The ques-tion arises as to what extent their statements can be believed. The case of the prosecution is that due to enmity murder was committed and the defence case is that due to enmity accused have falsely been involved in the case. It is to be ascertained as to what extent the prosecution story is proved. Seven accused, who were named, were said to be armed with firearms. The first shot was fired by the accused appellant Om Prakash and thereafter all the rest opened shots on the victim. It is a fact that the deceased sustained three gun shot wounds of entry, all on right side and one gun shot wound of exit. The experience shows that there is tendency on the part of the witnesses to exaggerate the guilt of the opposite party. Innocent persons are also roped in with real culprit to wreak vengeance. It is for the Court to separate the chaff from the grain and to reject that part of the evidence of the witnesses, which does not answer the test of probabilities. ( 26 ) IN the instant case, if all the seven appellants had participated in shooting, he would have ordinarily suffered much more injuries than those found on his person. Further, the gun shot wounds of entry would have spread in larger area than the parts recorded in the postmortem report. ( 26 ) IN the instant case, if all the seven appellants had participated in shooting, he would have ordinarily suffered much more injuries than those found on his person. Further, the gun shot wounds of entry would have spread in larger area than the parts recorded in the postmortem report. Since enmity was existing, if all seven accused had been armed with deadly weapons and had gone there to commit murder, some injuries would have been caused to other inmates of the house also, who were present there. Besides, the fact witnesses have stated that when the appellant Om Prakash fired with his gun, he stepped back and then rest of the accused persons started firing. It was not a rehearsal of firing. Nor there could be any plan to fire one by one. The real object was to commit murder. In such circumstance, if one person started firing, he was likely to do so till the object was accomplished, rather than to fire once and stepping back one or two steps giving opportunity to other accused persons to open shots. The fact witnesses have stated that Om Prakash fired from 7, 8 or 10 steps and rest of the accused fired from 2 or 3 steps. The postmortem examination report shows that there was no blacke-ning in the ante-mortem injuries It means that the statement of the witnesses that firing was made from close range by the accused persons other than Om Prakash does not answer the test of reliability and it is statement against Om Prakash only which is worthy to be relied upon that he fired from 7, 8 or 10 steps resulting to death of Ram Rakshapal. The participation of Om Prakash alone in the commission of murder of Ram Rakshpal is proved beyond doubt. May be that he was accompanied by one or two others out of the remaining accused. But their names and number cannot be ascertained by speculation and the benefit of doubt is to go to the remaining six accused appellants. ( 27 ) IT has been submitted by the learned counsel for the accused appellant that Om Prakash and complainant had enmity because he (Om Prakash) was witness in a gambling case against Surajpal, PW 2, who is nephew of Mewa Ram. ( 27 ) IT has been submitted by the learned counsel for the accused appellant that Om Prakash and complainant had enmity because he (Om Prakash) was witness in a gambling case against Surajpal, PW 2, who is nephew of Mewa Ram. It is submitted that due to this bad blood between him and the complainant, he has been falsely involved in the case. ( 28 ) WHEN accused Om Prakash admits that enmity existed between him and the complainant, the possibility could be on both sides i. e. of his active parti-cipation in the commission of the murder or of his false implication by the complainant. The short question is as to what is more probable. It is not a case in which name of Om Prakash has been merely mentioned. It is a case in which FIR was promptly lodged and active role of Om Prakash was specifically related in the FIR, which is different from the role of the other accused persons. The specific role of Om Prakash, as mentioned in the FIR, has been corroborated by the three eyewitnesses PW 1 Mewa Ram, PW 2 Suraj Pal and PW 4 Dinesh Kumar, whose names find place in the FIR. The evidence shows that fire was made from front side and ante mortem gun shot wounds of entry recorded in postmortem examination report indicate that they were caused from front side because Ram Rakshpal came out of kitchen room towards Om Prakash and Om Prakash immediately fired on him. Used cart-ridges were also found on the spot. Thus the prosecution has fully established that it was the accused Om Prakash, who committed the murder of Ram Rakashpal. ( 29 ) IN view of the above discussion, this court arrives at the conclusion that it was only accused appellant Om Prakash, who fired on Ram Rakshapal resulting into his death and he has been rightly held guilty for the commission of murder of Ram Rakshapal, but partici-pation of other accused-appellants is not proved beyond doubt. Hence they are entitled for the benefit of doubt. ( 30 ) THE appeal is partly allowed. The conviction and sentences passed against the accused appellants Ram Shanker, son of Chhotey Lal, Dharmendra son of Ram Shanker, Satish son of Rameshwar and Pappu alias Suresh son of Sri Krishna are set aside and they are acquitted. Hence they are entitled for the benefit of doubt. ( 30 ) THE appeal is partly allowed. The conviction and sentences passed against the accused appellants Ram Shanker, son of Chhotey Lal, Dharmendra son of Ram Shanker, Satish son of Rameshwar and Pappu alias Suresh son of Sri Krishna are set aside and they are acquitted. ( 31 ) THE appellant Om Prakash son of Ram Chandra is held guilty of the offence punishable under Section 302 I. P. C. , simpliciter and of the offence punishable under Section 452 I. P. C. The sentence of life imprisonment passed against him is maintained for the former offence and eighteen months R. I. for the latter. Both the sentences shall run concurrently. However, his conviction under Section 148 I. P. C with a sentence of 18 months R. I. is set aside. ( 32 ) THE appeal has abated in respect of the appellants Ram Bharose son of Chhotte Lal and Ram Shanker son of Rudra Prasad, who have died. ( 33 ) THE copy of judgment along with record be sent to the lower court imme-diately. The C. J. M. , Shahjahanpur, shall cause the appellant Om Prakash son of Ram Chandra to be arrested and lodged in jail to serve out the sentences passed against him. He shall report compliance within two months from the date of the receipt of the order. Appeal allowed partly.