JUDGMENT 1. This appeal is directed against the judgment July 26, 1999, passed by the Additional Sessions Judge No.1, Sikar, whereby appellant No.1 - Madan Lal has been convicted and sentenced under Section 302 read with Section 34, IPC, to life imprisonment and to pay a fine of Rs. 2,000/-, in default of payment of fine to further undergo six months' rigorous imprisonment and under Section 323 IPC, to undergo six months' simple imprisonment, and appellant No. 2 - Pappu has been convicted and sentenced under Section 302, IPC, to imprisonment for life and to pay a fine of Rs. 2,000/-, in default of payment of fine to further undergo six months' rigorous imprisonment and under Section 323 read with Section 34, IP_C, to undergo six months' simple imprisonment. All the sentences were directed to run concurrently. 2. In nutshell, the prosecution story is that on February 8, 1998, at 5.30 p.m., a written report (Ex.P1) was given by one Ram Kumar s/o Suwalal to S.H.O. Police Station, Dantaramgarh (Sikar), to the effect that father of the applicant Suwalal and his younger brother Ramniwas were grazing sheeps in village Rampura-ki-Tan then at about 3 p.m., Madan, Pappu, Bhanwarlal sons of Devaram r/o Dhehat came near the herd of sheep with a common intention to take away the sheeps. When father of the applicant restrained them from doing so, then Pappu put a gun on the chest of his father. On seeing this incident, Ramniwas cried and came to save his father. At that time, Bhanwarlal caught-hold the neck of Ramniwas and pushed him at one side. Then Madan gave lathi blow on the hand of Ramniwas, on account of which, Ramniwas fell down. While giving a lathi blow to Ramniwas, he exhorted Pappu, what you are looking for, fire a bullet, then immediately Pappu fired a bullet on the father of the applicant, which hit him in his chest and Suwalal, father of the applicant, died instantaneously. This incident was witnessed by Deeparam s/o Mohan Lal Ahir r/o Udaipur and Prahald s/o Jamnaram Ahir r/o Udaipur who were grazing their sheeps in a nearby field. When they both came running to the scene of the occurrence, the accused tried to took their heels by leaving gun there. They both followed them and caught-hold Madan, but Pappu and Bhanwarlal ran away. When they both came running to the scene of the occurrence, the accused tried to took their heels by leaving gun there. They both followed them and caught-hold Madan, but Pappu and Bhanwarlal ran away. When this information was given to the applicant by Ramniwas and Deeparam, then he reached or. the scene of the occurrence. It is also stated in the report that the stringent action may be taken against the accused persons. 3. On the basis of the aforesaid report, FIR No. 20198 (Ex.P11) under Sections 302, 323 read with Section 34, IPC, was registered at Police Station Dantaramgarh. Site was inspected and site inspection memo (Ex.P2) was prepared, inquest report of the dead body of Suwalal s/o Manguram was prepared, controlled soil and blood-smeared soil were seized from the scene of the incident and sealed, post-mortem of the dead body of the deceased was got conducted by Dr. Akhil Gupta, one gun and one nozal were seized from the place of incident vide fard Ex.P7 and one lathi, lying near the dead body of Suwalal, was seized. Accused Madanlal and Pappu were arrested. On the information of accused Madanlal, one lathi was recovered vide Ex.P9. All the seized articles were sent to the Forensic Science Laboratory, Jaipur for chemical examination and other necessary investigations were carried out. Report of FSL was received vide Ex.P53. 4. On completion of the aforesaid investigation the Police filed charge-sheets against the accused persons. The charges under Sections 302/34 and 323, IPC, were framed against the accused persons and they were read over to them. The accused denied the charges levelled against them and claimed trial. 5. The prosecution examined as many as 13 witnesses (P.W.1 to P.W. 13) and exhibited 53 documents (Ex.P1 to Ex.P53). In defence, both the accused examined themselves under section 313, Cr.P.C. and produced four witnesses (Ex.D1 to Ex.D4) in support of their case. They denied the correctness of the statements appearing against them and pleaded that they have been falsely implicated. 6. The learned Additional Sessions Judge No.1, Sikar, after hearing learned counsel for the accused appellants as well as learned Public Prosecutor for the State and examining all the witnesses and documents available on record, convicted and sentenced both the accused-appellants as stated above. 7. 6. The learned Additional Sessions Judge No.1, Sikar, after hearing learned counsel for the accused appellants as well as learned Public Prosecutor for the State and examining all the witnesses and documents available on record, convicted and sentenced both the accused-appellants as stated above. 7. Being aggrieved by the judgment dated July 26, 1999, passed by the learned Additional Sessions Judge No.1, Sikar, the accused-appellants have preferred the instant appeal. 8. PW 3 Ramniwas, who himself is an injured and eye-witness to the occurrence, deposed that he, Prahlad, Deeparam and his father - Suwalal were grazing sheeps in the field of Kisna. Madan and Pappu came there. Madan had lathi in his hand and Pappu was having a gun. They came and started to disturb our she-goats and sheeps. His father asked them not to do so. On this, Pappu touched the gun on the chest of his father and told that whatever he (Suwalal - father of Ramniwas) wants, he can take the breathes. His father told Pappu that he is taking the breaths. Ramniwas tried to intervene. At that time, Madan inflicted a lathi blow on the left hand to Ramniwas. He (Ramniwas) fell down. Madan exhorted Pappu, what you are looking for, fire a bullet. Pappu fired the gun on the chest of his father. His father died instantaneously. Then Madan and Pappu along with the gun tried to run away from the scene of occurrence. I caught-hold the gun of Pappu. Pappu left the gun and ran away. Similarly. Madan also tried to run away. At that time, Deeparam and Prahlad followed Madan and caught-hold of him. The witness also deposed that since his father restrained them (Madan and Pappu) from taking away she-goat and sheeps, therefore, his father was killed. He was cross-examined at length, but nothing credible could be elicited from cross-examination of this witness. 9. PW 8 Deepa Ram is also an eye-witness. He deposed that on the day of the occurrence, at about 3 p.m., he along with Ramniwas, Prahlad and Suwalal were grazing sheeps and she-goats in the field of Kishna. Madan and Pappu came to them. Pappu had a gun and Madan was having a lathi in his hand. When they started to disturb our sheeps and she-goats, Suwalal restrained them from doing so. Madan and Pappu came to them. Pappu had a gun and Madan was having a lathi in his hand. When they started to disturb our sheeps and she-goats, Suwalal restrained them from doing so. On this, Pappu touched the gun on the chest of Suwalal and told that whatever he wants, he can take the breaths. Suwalal told that he is taking the breaths. When Ramniwas, in order to save Suwalal, came forward, Madan inflicted lathi below on his left hand. Ramniwas fell down. Madan exhorted Pappu, what you are looking for, fire a bullet. Pappu fired the gun immediately, which hit the chest of Suwalal. Suwalal died instantaneously. Thereafter, when Pappu tried to run way along with the gun from the scene of occurrence, Ramniwas caught hold his gun. Pappu left the gun and raw away. Madan was caught hold by this witness and Prahlad. This witness was also cross-examined at length, but nothing was elicited, by which adverse inference can be drawn against him. 10. PW 12 Prahlad is also an eye-witness. He had deposed that about one year ago, at 3 p.m., he along with Suwalal, Deepa Ram and Ramniwas were grazing sheeps and she-goats in the field of Kishna. At around 3.30 p.m., Madan and Pappu came there. Madan was having a lathi and Pappu had a gun in his hand. They started to disturb the sheeps and she-goats. Suwalal asked them not to do so. Upon this, Pappu touched the gun on the chest of Suwalal and told that whatever breaths he wants, he can take. Suwalal told that he is taking the breaths. Ramniwas came to intervene. He was inflicted with a lathi blow on his left hand by Madan. He fell down. Madan exhorted Pappu, what you are looking for, fire the bullet. On this exhortation. Pappu fired the gun, which hit on the chest of Suwalal and Suwalal died on the spot. When Pappu tried to run away, Ramniwas caught-hold of his gun. Pappu left the gun there and ran away. When Madan was taking to his heels, he was chased by this witness and Deeparam. In cross-examination, he stated that he kept the Madan sitting there for an hour and, thereafter, he left for collecting the herd of sheeps and the- goats. Ultimately, he stood by the true version of the prosecution case. During cross-examination, his testimony remained unshattered. 11. When Madan was taking to his heels, he was chased by this witness and Deeparam. In cross-examination, he stated that he kept the Madan sitting there for an hour and, thereafter, he left for collecting the herd of sheeps and the- goats. Ultimately, he stood by the true version of the prosecution case. During cross-examination, his testimony remained unshattered. 11. PW 1 Ramkumar, who gave the written report to the SHO, deposed that about a year ago, at about 4 - 4.30 p.m., Ramniwas and Deeparam came to his house. Ramniwas informed him that his father Suwalal has been done to death by Madan and Pappu Baavri, When he enquired from them as to what happened, they told him that they along with Deepa Ram and Suwalal were grazing sheeps and she-goats in the field of Kishna. Where Madan and Pappu having a lathi and a gun respectively, in their hands, came there. They started to disturb the herd of sheeps and she-goats. His father asked them not do to so. Upon this, Pappu put a gun on the chest of his father and told that he may take the breathes whatever he wants. His father told that he is taking the breaths. Ramniwas tried to intervene, but he was inflicted with a lathi blow on his hand by Madan. He (Ramniwas) fell down. Madan exhorted Pappu, what you are looking for, fire the bullet. On this, Pappu filed (sic `fired'?) the gun immediately, which hit in the chest of his father and he died on the spot. When Pappu tried to run away along with the gun, Ramniwas caught-hold of gun. Pappu left the gun there and took to his heels. This witness further deposed that when he went to the field of Kishna, the dead body of his father was lying there. A lathi of Jhar was also lying there. He got the report written by Manohar Master, then police appeared on the scene of the occurrence and he gave the written report to the S.H.O. This witness further deposed that the police prepared the inquest report of his father. A wound near the chest of the dead body was visible and vest and shirt (`kamecz') were burnt and smeared with blood. In cross-examination, he stated that he is an illiterate, so the report was written by Manohar Master. A wound near the chest of the dead body was visible and vest and shirt (`kamecz') were burnt and smeared with blood. In cross-examination, he stated that he is an illiterate, so the report was written by Manohar Master. He also pleaded ignornace that there was an enmity between his father and Prahlad & Deeparam. In cross-examination, his testimony remained unshattered. 12. PW 18 SHO Samunder Singh has deposed that on 8.2.98, he was posted as SHO in Police Station Dentaramgarh. On the day of the occurrence, Ramkumar gave him a written report, which was recorded in the FIR and the investigation was taken up. He prepared the inquest report of the dead body of Suwalal, seized and sealed controlled and blood-smeared soil vide Ex.P.4. He also took into possession the blood-smeared clothes of the deceased vide Ex.P5 and sealed them properly. He arrested the accused persons. he took into possession the alleged gun from the scene of the occurrence vide Ex.P7 and a lathi of `Jhadi' vide Ex.P8. At the instance of the accused Pappu on 11.2.98, license of the gun No. 595 was seized and marked as Ex.P14. At the instance of accused Madanlal, one lathi was recovered vide Ex.P9. He admitted in the cross-examination that he did not get the identification of the alleged gun done, as he did not deem it proper to do so. He stated in his cross-examination that in portions A to B and C to D of police statement (Ex.D-1) of Ramkumar, portions A to B, C to D, E to F, G to H, Ito J, K to L of police statement (Ex.D-2) of Ramniwas, portions A to B, C to D, E to F, G to H of police statement (Ex.D-3) of Deepa Ram and portions A to B, C to D, E to F of police statement (Ex.D-4) of Prahlad, whatever versions uttered by the aforesaid witnesses, were recorded in their statements. Neither he reduced the versions of the witnesses, nor he increased the same, on his own. He also stated that the alleged gun was taken into possession from the field of Kishna. The SHO, Police Station, Dantaramgarh also received the report from the Forensic Science Laboratory, Jaipur vide Ex.P53. According to the FSL report, one S.B.M.L. Gun (W/1) from packet `C' was a serviceable firearm. He also stated that the alleged gun was taken into possession from the field of Kishna. The SHO, Police Station, Dantaramgarh also received the report from the Forensic Science Laboratory, Jaipur vide Ex.P53. According to the FSL report, one S.B.M.L. Gun (W/1) from packet `C' was a serviceable firearm. The examination of the barrel residue indicated that the SBML Gun had been fired. However, the definite time of its last fire could not be ascertained. The Serologist gave his opinion that the five irregular shaped lead pellets could have been fired from the alleged SBML Gun. 13. PW 10 Dr. Akhil Gupta has deposed that on February 9, 1998, he was posted as Medical Officer in Primary Health Centre, Dantaramgarh. On the `tchrir' of the SHO, Dantaramgarh, he conducted the post mortem examination of the dead body of Suwalal, According to the Doctor, there was an oval shape wound of 3.2 cm x 2.9 cm in the middle of the chest. The skin around the wound was burnt and the colour of the skin has turned into black. The wound was beneath the bone of stern. Inner parts of the body were visible. There was also a wound of 5 cm x 7 cm in the left side of the lung. The Doctor further found a ventricle wound of 7 cm x 3.4 cm on the left and right side of the heart. Apart from that, there was a wound of 17.4 cm. x 12.8 cm. x 10.8 cm on the left side of the liver.According to the opinion of the Doctor, the cause of death was gun shot wound on the heart and liver - vital parts of the body. The duration of the injuries was 6 to 24 hours. The Post Mortem Report Ex.P15 was prepared by him. 14. Dr. Akhil Gupta further deposed in his statement that on February 8, 1998, at 10.00 p.m., on the `tehrir' of the SHO, Dantaramgarh, he examined the injuries of injured- Ramniwas, aged 20 years. He found a bruise injury of 7.6 cm x 1.2 cm. on the arm of Ramniwas. The injury was simple in nature. The injury was caused by `kund' weapon. The duration of injury was 24 hours. Injury Report (Ex.P16) was prepared by him. 15. PW 12 Mali Ram has deposed that the site plan of the occurrence was prepared by the Police in his presence. on the arm of Ramniwas. The injury was simple in nature. The injury was caused by `kund' weapon. The duration of injury was 24 hours. Injury Report (Ex.P16) was prepared by him. 15. PW 12 Mali Ram has deposed that the site plan of the occurrence was prepared by the Police in his presence. He also deposed that the controlled soil and blood-smeared soil, as well as the alleged gun and clothes of the deceased were seized and sealed by the Police in his presence. Similarly, PW 4 Kisnaram has deposed that the alleged `lathi' was got recovered by the accused Madan in his presence. PW 5 Govind Singh has also deposed that on February 8, 1998, he was posted as L.H.C. in Police Station, Dantaramgarh. He took the report from the SHO and handed over the same to Gulab Chand Munshi of the Police Station, Dantaramgarh. Similarly, Gulab Chand (P.W.6) has deposed that on February 8, 1998, he was posted as Head Constable in Police Station, Dantaramgarh. He took the report from Govind Singh and registered Case No. 20/98 in the Police Station. PW 7 Raghunath Prasad, Head Constable, Police Station, Dantaramgarh has also deposed that accused Pappu got the license of the gun recovered from his house in his presence, which was taken into possession and fard Ex.P14 was prepared. PW 9 Todarmal, Head Constable, also testified that the accused Pappu got license No. 130/97 of the gun recovered in his presence. PW 11 Pratap, who is Photographer by profession, has deposed that he took the photographs of the dead body and the place of occurrence which were marked Ex.P17 to Ex.P37. 16. Learned counsel for the appellants contended that the findings of the trial court are against the facts and material on record. He further contended that the learned trial Court has erred in law in not taking into consideration the proper appreciation of prosecution witnesses, particularly PW 3 Ramniwas, PW 8 Deepa Ram and PW 12 Prahlad respectively, in its right perspective. Apart from that, there is serious discrepancy on material point in the statements of the aforesaid three witnesses, which goes to the root of the case, therefore, in this situation, the conviction of the accused-appellants is bad and the same deserved to be set aside by this Court. 17. Apart from that, there is serious discrepancy on material point in the statements of the aforesaid three witnesses, which goes to the root of the case, therefore, in this situation, the conviction of the accused-appellants is bad and the same deserved to be set aside by this Court. 17. Learned counsel for the appellants also contended that the trial court has erred in law in not taking into consideration the defence version in its right perspective. The defence has to probabilise its case, but, on the other hand, the prosecution has to prove its case beyond all reasonable doubts. According to the learned counsel, in the instant case, the prosecution has failed to prove its case beyond all reasonable doubts against both the accused-persons. 18. In support of his contention, learned counsel for the appellants has referred to the case of (1) Mohd. Rustam @ Rustam v. State of Bihar (2002) 10 SCC 273 , in which the appellant and his brother came armed with firearms to the place of the incident and on exhortation made by their father, his brother fired a shot from his musket causing death of the deceased, whereas appellant fired a shot from his revolver, causing injuries to PW 4 and PW 7. In that situation, it was held by their Lordships of the Supreme Court that since the appellant chose not to obey the exhortation of his father, he cannot be attributed with the common intention to kill the deceased. But, in the facts and circumstances of the instant case, this authority is of no help to the learned counsel for the appellants. 19. Learned counsel for the appellants further referred to the case of (2) Mithu Singh v. State of Punjab (2001) 4 SCC 193 , in which appellant - Mithu Singh, armed with a pistol, was going with the co-accused to the house of the deceased. He was knowing that the co-accused too was armed with a pistol and the co-accused had a previous enmity with the deceased. Co-accused fired shot from pistol at the deceased, resulting into the death of the deceased. Then, their Lordships of the Supreme Court held that merely because the appellant was armed with a pistol, would not necessarily lead to the inference that he had accompanied the co-accused with the common intention of causing death of deceased. Co-accused fired shot from pistol at the deceased, resulting into the death of the deceased. Then, their Lordships of the Supreme Court held that merely because the appellant was armed with a pistol, would not necessarily lead to the inference that he had accompanied the co-accused with the common intention of causing death of deceased. Therefore, the conviction under Section 302/34, IPC, was set aside. But, in the instant case, the accused Pappu came armed with a gun and with an intention to kill Suwalal, he put the gun on the chest of the deceased and pressed the trigger of the gun, which resulted into he death of the deceased Suwalal on the spot. Thus, the pre-planned intention of the accused Pappu in very much proved, in the instant case, so this authority is of no help to the appellants. 20. In (3) Matadin v. State of Maharashtra [ (1998) 7 SCC 216 ] , appellant exhorted his fellow by saying `maro sale ko', He stabbed the deceased, which resulted into his death. Then it was held by their Lordship of the Supreme Court that if the words `maro sale ko' were used by the appellant, in an abusive way, it could not be said that he exhorted his fellow to kill the deceased. Therefore, the conviction was altered from Sections 320/34, IPC, to Section 324/110, Indian Penal Code and looking to his age, the sentence was reduced to the period already undergone by him. But, in the instant case, accused appellant Pappu, having a gun in his hand, came with an intention to kill the deceased.He put the same on the chest of deceased Suwalal and, thereafter, fired from the same. It does show that he had a pre-plan as well as intention coupled with the knowledge to kill the deceased Suwalal. Therefore, this authority is also of no help to the appellants. 21. In (4) Ajay Sharma v. State of Rajasthan [ (1999) 1 SCC 174 ] , appellant caught-hold of the deceased and exhorted the co-accused to strike him. The co-accused took out a kripan from under the stockings and gave blows, which resulted in instantaneous death of the deceased. Therefore, this authority is also of no help to the appellants. 21. In (4) Ajay Sharma v. State of Rajasthan [ (1999) 1 SCC 174 ] , appellant caught-hold of the deceased and exhorted the co-accused to strike him. The co-accused took out a kripan from under the stockings and gave blows, which resulted in instantaneous death of the deceased. In these circumstances, their Lordships of the Supreme Court held that the instigation was only to strike and not to kill the deceased as the appellant might not have known that the co-accused was having a kirpan under his stocking. Therefore, the conviction under Section 302/34, IPC, was held to be not sustainable. But, in the instant, case the accused Pappu had knowledge that the gun, by which he is firing, after touching the same on the chest of the deceased Suwalal, would definitely result in his death. Therefore, this authority is of no help to the appellants. 22. (5) Darshan Singh v. State of Rajasthan (RLW 1984 P. 755) , was a case pertaining to Clause 3rd of Section 300, IPC, in which a Division Bench, consisting of the them Hon'ble Mr. Justice M. C. Jain and the then Hon'ble Mr. Justice S.S. Byas, while interpreting Clause 3rd of Section 300, IPC, held that Clause 3rd of Section 300, IPC, is in two parts. The first part is a subjective one. Under this part, it has to be shown by the prosecution that there was an intention on the part of the accused to inflict the particular injury which was found on the body of the deceased. The second part is objective and it is incumbent on the prosecution to prove that the bodily injury inflicted on the victim's body was sufficient in the ordinary course of nature to cause death. The Division Bench further held that if these two things have been proved by the prosecution, then the case falls within the four corners of Clause 3rd of Section 300, IPC. If one of them is missing, Clause 3rd cannot be pressed into service. But, the instant case is with regard to the offence under Sections 302/34 and 323/34, IPC, therefore, this authority, in any case, is not applicable to the facts and circumstances of the present case and is of the no help to the appellants. 23. If one of them is missing, Clause 3rd cannot be pressed into service. But, the instant case is with regard to the offence under Sections 302/34 and 323/34, IPC, therefore, this authority, in any case, is not applicable to the facts and circumstances of the present case and is of the no help to the appellants. 23. Learned Public Prosecutor supported the judgment of the trial court and vehemently argued that it is a full proof case from the point of view of prosecution testimony as well as medical evidence. supported by the Serologist's report, which led to establish the guilt of the accused beyond all reasonable doubts and the accused-appellants have been rightly convicted by the trial Court. Therefore, the conviction and sentence awarded by the trial Court should be upheld. 24. Learned Public Prosecutor has referred to the case of (6) Janak Singh v. State of Uttar Pradesh (2004 Cr.L.J. 2533) , in which while upholding the conviction under Section 302 read with Section 34, their Lordships of the Supreme Court, interpreted the intention of Section 34 in detail. It was held that Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section is that if two or more persons intentionally do an act jointly, the position in law is just the same if each of them has done it individually by himself. The existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. Learned Public Prosecutor, therefore, contended that keeping in view the aforesaid observations of the Hon'ble Supreme Court, the conviction and sentence awarded to both the accused appellants should be maintained, as common intention of both the accused to commit the offence has been proved by the prosecution beyond all reasonable doubts. 25. Learned Public Prosecutor has also referred to the case of (7) Abdul Wahid v. State of Rajasthan (2004 Cr.L.J. 2850) in support of his contention. In that case, there was a dispute between both the parties regarding repairs carried out in the tenanted shop by the deceased. The accused brought the deceased and his brother to the shop of his father. The father of the accused fired and killed the deceased. But no allegation in a written complaint was made by the brother of the deceased that accused had instigated or exhorted his father to shoot the deceased, but, subsequently, an improvement was made in the second part of the complaint at the instance of the Investigating Officer that the accused exhorted his father to shoot the deceased. In view of the fact that no over act was attributed to the accused in the earlier part of the complaint, their Lordships of the Supreme Court held that the aforesaid discrepancies would be fatal. Therefore, the conviction of the accused under Section 300/34, IPC, was not sustained. But, in the instant case, the prosecution witnesses, particularly eye-witnesses, have given the sequence of events almost in the same versions against the principal accused Pappu, which appear to be worthy one. Further, their testimony remained unshattered in the cross-examination. But, sofar as the accused appellant Madan is concerned, there are certain discrepancies in the statements of the witnesses. 26. But, in the instant case, the prosecution witnesses, particularly eye-witnesses, have given the sequence of events almost in the same versions against the principal accused Pappu, which appear to be worthy one. Further, their testimony remained unshattered in the cross-examination. But, sofar as the accused appellant Madan is concerned, there are certain discrepancies in the statements of the witnesses. 26. We have heard learned counsel for the parties at length and scanned the evidence on record. Sofar as accused Pappu is concerned, nothing has been elicited in the cross-examination to discredit the testimonies of PW 3 Ramniwas, PW 8 Deeparam and PW 12 Prahlad. Their statements find corroboration for the written report of PW 1 Ram Kumar as well as Post Mortem Report and Serological Examination Report. In our view, they are truthful witnesses. Apart from that, on re-appreciation of the evidence, we find the statements of PW 3 Ramniwas, PW 8 Deepa Ram and PW 12 Prahlad who are witnesses of the occurrence, creditworthy. Though evidence of recovery of gun does not sound well, but, it deserves to be rejected. 27. Sofar as accused Pappu is concerned, the prosecution has succeeded and has been able to prove its case against him beyond all reasonable doubts, as all the four ingredients - pre-plan, intention, motive and knowledge - attributed to him, stand proved from the statements of the aforesaid three creditworthy witnesses. 28. With regard to accused - Madan Lal, it may be mentioned that the concept of exhortation by Madan Lal is not proved and the prosecution has failed to prove his role beyond reasonable doubt. Apart from that, there are certain discrepancies in the statements of the witnesses given to the police and the statements given before the trial Court. In cross examination, the testimony of PW 13 Investigating Officer, Samunder Singh, remained unshattered. He stated that whatever statements were given by the witnesses, were reduced by him into writing. Neither he reduced the versions of the witnesses, nor he increased the same, on his own. Therefore, the accused - Madal Lal deserves to be acquitted from the charge under Sections 302/34 and 323, IPC. 29. He stated that whatever statements were given by the witnesses, were reduced by him into writing. Neither he reduced the versions of the witnesses, nor he increased the same, on his own. Therefore, the accused - Madal Lal deserves to be acquitted from the charge under Sections 302/34 and 323, IPC. 29. In view of the aforesaid facts and circumstances of the case, as discussed above, we are of the opinion that the order of conviction and sentence passed by the learned Trial Court against accused Pappu under Sections 302/34 and 323,IPC, deserves to be maintained. Therefore, the conviction and sentence of accused Pappu under Sections 324/34 and 323, IPC, are maintained. But, so far as accused Madanlal is concerned, he deserves to be acquitted from the charge under Sections 302/34 and 323, IPC. Accordingly, the conviction and sentence of accused Madanlal under Sections 302/34 and 323,IPC, are set aside. Accused - appellant Madanlal is already on bail. He need not surrender to his bail bonds. His bail bonds stand cancelled. 30. In the result, the appeal is partly allowed. The impugned judgment of the learned trial Court stands modified as indicated above.Appeal Partly allowed. *******