M. C. JAIN, J. Both these appeals arise out of judgment and order dated 8-5-1980 passed by Sri Chhatrasal Singh, I Additional Sessions Judge, Etah in Sessions Trial No. 725 and 751 of 1979, Sewati Lal son of Het Ram, Malkhan Singh son of Sewati Lal, Sri Ram son of Sewati Lal and Ganga Prasad son of Nathuram are appellants in Criminal Appeal No. 1231 of 1980 whereas Ganga Singh son of Sewati Lal is appellant in connected Criminal Appeal No. 1232 of 1980. Both the appeals being related to each other are being decided by this common judgment. All the accused appellants have been convicted under Section 302 read with Section 149 I. P. C. , 307 read with Section 149 I. P. C. and 148 I. P. C. The sentences are life imprisonment, five years rigorous imprisonment and two years rigorous imprisonment respectively. All of them have been ordered to run concurrently. 2. A summary of the relevant facts would be helpful. The incident took place on 5-6-1979 at about 7. 30 p. m. at the house of the complainant Sona Devi alias Jal Devi PW 1 in Mohalla Maharana Pratap Nagar, Railway Colony, P. S. Kotwali, District Etah and the report was lodged that daty at 8 p. m. Ram Prasad died in the incident whereas the complainant Sona Devi alias Jal Devi sustained injuries. About 15 years before the incident, Sona Devi alias Jal Devi PW 1 wife of Mool Chand resident of village Bamnai of P. S. Kotwali, Etah had become issueless widow. She inherited 49 bighas land of her husband out of which she sold 15 bighas of land and shifted to Etah, still leaving 34 bighas land in her name in village Bamnai. At Etah, she purchased a piece of land from Ram Prasad deceased situated in Mohalla Maharana Pratap Nagar and constructed a house and started regarding residence. Ram Prasad deceased also started residing in that very house with her. Sewati Lal accused was the real brother of Ram Prasad, deceased. The wife of Sewati Lal accused is the real sister of the mother of Gaya Prasad accused. The relations between Ram Prasad, deceased and Sewati Lal accused were strained and a partition suit was pending. Ram Prasad deceased also started residing in that very house with her. Sewati Lal accused was the real brother of Ram Prasad, deceased. The wife of Sewati Lal accused is the real sister of the mother of Gaya Prasad accused. The relations between Ram Prasad, deceased and Sewati Lal accused were strained and a partition suit was pending. On 21-5-1978, Ram Prasad deceased had lodged a report against Sewati Lal, Sri Ram and Gaya Prasad under Section 392 I. P. C. About 1-1/2 years back, Sewati Lal accused had set up a fictitious lady as Sona Devi and had got a registered mortgage deed executed in his favour for Rs. 10,000 in respect of her 34 bighas of land situate in village Bamnai. She filed objections in the mutation proceedings initiated by Sewati Lal accused and that case was still pending in the Tehsil. 3. There was a vacant piece of land lying just to the north of the house of Sona Devi alias Jal Devi situate in Mohalla Maharana Pratap Nagar. On the day of incident, Ram Prasad was lying on that open land on a cot. Sona Devi alias Jal Devi was also sitting on that very cot and her servant Chhotey Lal was sitting on the ground nearby. At the fateful time, all the accused persons armed with countrymade pistols reached there from the side of eastern lane and fired shots on them with the result that Ram Prasad succumbed to his injuries and Sona Devi alias Jal Devi sustained injuries. The assailants made their escape good with their weapons. Gyan Singh, Udaivir and others reached the spot to whom Sona Devi alias Jal Devi narrated the incident. Soon after, S. I. , M. N. Chaturvedi also reached the spot and took away Sona Devi alias Jal Devi to P. S. Kotwali by his jeep and there on her dictation H. M. Bani Singh scribed the chik F. I. R. at 8 p. m. She was taken to the District Hospital, Etah for medical examination which was conducted by Dr. P. N. Verma PW 8 at 8. 45 p. m. The post-mortem over the dead body of the deceased was conducted by Dr. Daya Shankar PW 6 on 6-6-1979 at 5 p. m. 4. The deceased was aged about 60 years and about one day had passed since he died. P. N. Verma PW 8 at 8. 45 p. m. The post-mortem over the dead body of the deceased was conducted by Dr. Daya Shankar PW 6 on 6-6-1979 at 5 p. m. 4. The deceased was aged about 60 years and about one day had passed since he died. The following ante-mortem injuries were found on his person: (1) Three fire-arm wounds of entry on occipital region (middle), each measuring 0. 5 cm x 0. 5 cm x bone deep in an area of 4 cm x 4 cm. (2) Fire-arm wound of entry on left side chest 4 cm inner side and at 9 O clock position to left nipple 2. 5 cm x 2 cm x chest cavity deep. 5. The death had occurred as a result of shock and haemorrhage on account of ante-mortem injuries noted above. 6. The following injuries were sustained by Sona Devi alias Jal Devi: (1) Lacerated wound 1-1/2 cm x 1/4 cm x skin deep on left side of face, 3 cm from angle of mouth at 4 O clock position. Parallel to lower jaw border. Bleeding present. (2) Lacerated wound 1/2 cm x 1/4 cm x skin deep on left side of neck, 2-1/2 cm below lower border of lower jaw, 5 cm from midline. Parallel to lower jaw border. Bleeding present. (3) Lacerated wound 1/2 cm x 1/4 cm x skin deep on left side of neck, 2-1/2 cm below injury No. 2. Parallel to lower jaw border. Bleeding present. (4) Fire-arm wound of entry 1 cm x 1 cm on left side of chest, 2 1/2 cm above axillary fold. Probing not done due to medical reasons. Blackening not present. Bleeding present. (5) Fire-arm wound of entry 1 cm x 1 cm on left side of chest, 3 cm from injury No. 4 at 7 O clock position. Probing not done due to medical reasons. Blackening not present. Bleeding present. (6) Fire-arm wound of entry 1 cm x 1 cm on left breast, 2-1/2 cm from nipple at 3 O clock position. Probing not done due to medical reasons. Blackening not present. Bleeding present. (7) Abrasion 1 cm x 1 cm on left breast, 3 cm from nipple at 9 O clock position. (8) Multiple fire-arm wounds of entry in area 13 cm x 5 cm on both the hips around anus and middle of hips. Probing not done due to medical reasons. Blackening not present. Bleeding present. (7) Abrasion 1 cm x 1 cm on left breast, 3 cm from nipple at 9 O clock position. (8) Multiple fire-arm wounds of entry in area 13 cm x 5 cm on both the hips around anus and middle of hips. Blackening not present. Probing not done due to medical reasons. Pellet felt under the skin in the middle of left thigh on outer side. Direction from back, slightly right to left and little downwards. Bleeding present. 7. All injuries were fresh, caused by fire-arm and were kept under observation. 8. The defence was of denial and false implication owing to enmity. 9. Apart from formal and medical evidence, the material witnesses examined by the prosecution were Sona Devi alias Jal Devi (injured) PW 1 and Chhotey Lal PW 2 as eye-witnesses. Gyan Singh PW 3 was a teacher in Government Inter College, Etah and was a tenant in the house of Sona Devi alias Jal Devi. Though he did not witness the incident himself, but had reached the spot immediately after the occurrence had taken place, finding Ram Prasad to be lying dead on the cot and Sona Devi on the ground in injured condition. Chhotey Lal was also found him to be there. Sona Devi informed her then and there that the assailants were accused appellants (she named them all) who had opened shots. He denied the suggestion that he had developed illicit relations with Sona Devi alias Jal Devi and himself got Ram Prasad murdered with a view to remove him from the way. 10. The evidence of the prosecution commended to the trial Judge who recorded the impugned judgment. 11. We have heard Sri G. S. Chaturvedi, learned Senior Counsel for the appellants and Sri K. P. Shukla, learned A. G. A. from the side of State in opposition of the appeal. Appellant Sewati Lal and his sons Malkhan Singh and Sri Ram died during the pendency of the appeal. Criminal Appeal No. 1231 of 1980 respecting them abated under order dated 13-11-2003. Therefore, presently the Court is concerned only with the remaining accused appellants Gaya Prasad in Criminal Appeal No. 1231 of 1980 and Ganga Singh in Criminal Appeal No. 1232 of 1980. 12. The submissions from the side of the appellant are of three fold. Criminal Appeal No. 1231 of 1980 respecting them abated under order dated 13-11-2003. Therefore, presently the Court is concerned only with the remaining accused appellants Gaya Prasad in Criminal Appeal No. 1231 of 1980 and Ganga Singh in Criminal Appeal No. 1232 of 1980. 12. The submissions from the side of the appellant are of three fold. Firstly, the eye-witnesses Sona Devi alias Jal Devi PW 1 and Chhotey Lal PW 2 were unreliable and the conviction could not be sustained on their testimony. Secondly, Gyan Singh PW 3 was also an interested witness, though not of actual incident. He was allegedly having illicit relations with Sona Devi alias Jal Devi and, therefore, came to back her from the side of the prosecution. Thirdly, the accused appellant Gaya Prasad was an unconnected person, being a remote relative of the other accused appellants and as such could have no motive to participate in this crime. It would be recalled that he is the son of the sister of the wife of Sewati Lal. 13. We proceed to scrutinize the worth of these arguments one by one. Sona Devi alias Jal Devi PW 1 is herself an injured of the felony who received as many as 8 gunshot injuries on different parts of her body as detailes earlier. Her testimony, therefore, carried great weight. It has come down from her testimony that after the death of her husband Mool Chandra resident of village Bamnai, she purchased a piece of land from Ram Prasad in Mohalla Maharana Pratap Nagar in which she constructed a house and started residing therein. Ram Prasad was also residing with her. Though Sewati Lal accused (now dead) stated in his statement under Section 313 Cr. P. C. that the house was constructed jointly by him and Ram Prasad, but the question of ownership of the house is immaterial. What is important is that Sona Devi alias Jal Devi and Ram Prasad were both residing in that house and murder took place in the open land lying to its north as depicted in the map and index Ext. Ka-9 prepared by the Investigating Officer. She added that the relations between Ram Prasad deceased and Sewati Lal were bad and a partition suit was pending. Definitely, there was some dispute between Ram Prasad deceased and Sewati Lal relating to property, so much so that Ram Prasad had lodged report Ext. Ka-9 prepared by the Investigating Officer. She added that the relations between Ram Prasad deceased and Sewati Lal were bad and a partition suit was pending. Definitely, there was some dispute between Ram Prasad deceased and Sewati Lal relating to property, so much so that Ram Prasad had lodged report Ext. Ka-3 on 21-5- 1978 against Sewati Lal, Sri Ram and Gaya Prasad, though the police had submitted the final report as was clear from Ext. Ka-4 (dated 4-7-1978 ). It was also in the testimony of Sona Devi alias Jal Devi PW 1 that about 1-1/2 years before the incident, Sewati Lal had set up a fictitious woman as Sona Devi alias Jal Devi and had got a registered mortgage deed executed in his favour for Rs. 10,000/- in respect of her 34 bighas of land in village Bamnai. She had filed objections in mutation proceedings started by Sewati Lal accused and that case was still pending in Tehsil. So, the relations between Sewati Lal accused on the one hand and Ram Prasad on the other were far from satisfactory and Sona Devi alias Jal Devi also became an eye-sore of Sewati Lal and his sons as she had started living with Ram Prasad. She defeated Sewati Lals design and was fighting a legal case against him concerning her 34 bighas of land. Therefore, Sewati Lal with his sons and another relative could have thought of eliminating both of them to be ultimately successful in grabbing their properties. 14. Having regard to the place of the incident and the fact that Sona Devi alias Jal Devi sustained as many as eight gunshot injuries, her testimony could not be brushed aside, particularly when she withstood the test of cross-examination firmly. 15. We have carefully scrutinized her testimony as also of Chhotey Lal PW 2 but find nothing to dislodge their testimonial assertions that the assailants were five accused appellants who indulged in the orgy of assaulting Ram Prasad and Sona Devi alias Jal Devi by opening shots from their fire-arms. The injuries sustained by the deceased and Sona Devi alias Jal Devi taken together are also compatible to the number of five accused appellants who resorted to firing. The injuries sustained by the deceased and Sona Devi alias Jal Devi taken together are also compatible to the number of five accused appellants who resorted to firing. It may be stated at the risk of repetition that the deceased received three fire-arm wounds of entry on occipital region and one wound of entry on chest, whereas Sona Devi alias Jal Devi herself sustained eight fire-arm wounds. Chhotey Lal PW 2 was also a natural witness being servant of Sona Devi alias Jal Devi. In such capacity, he was present at the spot. It was evening time of about 7 p. m. Ram Prasad was lying on a cot in the open piece of land whereupon Sona Devi alias Jal Devi was also sitting. This witness was sitting nearby on the ground. It has clearly come in his testimony that in his capacity as servant of Sona Devi alias Jal Devi, he used to remain at her house throughout the day. He even used to stay and sleep there in the night. He was under no pressure/obligation of Sona Devi alias Jal Devi. It has come in his testimony that after about a month of the incident, he had left service of Sona Devi alias Jal Devi. He gave his address of village Hoti Purwa, P. S. Thangaon, District Sitapur. He stated that after the incident he worked as labourer in the market. He thus managed money for the fare to go to his home and returned to his native place. His name found place in the report lodged by the complainant Sona Devi alias Jal Devi PW 1 by oral narration. Despite searching cross-examination, the central core of his testimony could not be shaken that the assailants were five accused appellants and none else. It is, therefore, not possible to accept the criticism levelled by the learned counsel for the accused appellants against the testimony of the eye- witnesses Sona Devi alias Jal Devi PW 1 and Chhotey Lal PW 2. 16. Coming to the testimony of Gyan Singh PW 3, we do not find any basis to infer that he was having illicit relations with Sona Devi alias Jal Devi PW 1 which impelled, prompted or actuated him to come to the witness-box from the side of the prosecution. He as well as Sona Devi alias Jal Devi PW 1 empathetically denied any illicit liaison between them. He as well as Sona Devi alias Jal Devi PW 1 empathetically denied any illicit liaison between them. Gyan Singh PW 3 was only the tenant in the house of Sona Devi alias Jal Devi and had reached the spot just after the incident. He did not see the incident himself. He only gave res gestae evidence that when he reached the spot from the market, Sona Devi alias Jal Devi informed him names of five accused appellants that they had come over there with countrymade pistols and had opened shots. He had found Chhotey Lal also to be present there. Ram Prasad was found by him to be lying dead on the cot in the open land and Sona Devi alias Jal Devi on the ground in injured condition. Had he not been a truthful witness, he could have posed to be an eye-witness of the incident. He did nothing of the kind. The F. I. R. mentions his name also as the person who reached the spot just after the incident. 17. It is to be taken note of that Sona Devi alias Jal Devi was not the married wife of Ram Prasad, though she was living with him in the same house. Ram Prasads own wife was alive at the time of incident. A suggestion was made to Sona Devi alias Jal Devi PW 1 in her cross-examination that since she was living with Ram Prasad, Ram Prasads wife, his wifes brother and Sewati Lal (accused) used to be annoyed of her and she used to be chided on this score. Of course, she denied this suggestion empathetically. Let us put to test the other defence suggestion that Gyan Singh PW 3 got Ram Prasad murdered. Even if it is accepted for the sake of argument that in course of time, she (Sona Devi alias Jal Devi) had developed illicit relations with Gyan Singh PW 3, then she being not the married wife of Ram Prasad was not under any obligation to live with him and could easily go away with Gyan Singh anywhere to pursue her amorous game with him. Therefore, there could hardly be any reason for Gyan Singh to spoil his hands by getting Ram Prasad murdered to carry on his illicit connection with Sona Devi alias Jal Devi. Therefore, there could hardly be any reason for Gyan Singh to spoil his hands by getting Ram Prasad murdered to carry on his illicit connection with Sona Devi alias Jal Devi. This defence theory of throwing blame of murder on Gyan Singh PW 3, dubbing him to be the author of this crime from behind the scene is wholly without foundation and like a square peg in a round hole. We see nothing to uphold the criticism against the res gestae evidence delivered by Gyan Singh PW 3 which is corroborative of the eye-witness account rendered by Sona Devi alias Jal Devi herself and other eye- witness Chhotey Lal PW 2. 18. The third submission of learned Counsel for the accused appellants may also be scrutinised. No doubt, accused appellant Gaya Prasad son of Nathuram is resident of Birhampur, P. S. Kotwali, District Etah. It has also come in evidence that he is the son of the sister of the wife of Sewati Lal (deceased accused appellant ). In other words, he is Mausera brother of the other surviving accused appellant Ganga Singh. But the factum of his being not immediate kith and kin of the other accused appellant would not wipe away the effect of trustworthy evidence against him that he was one of participants of this crime; that he was also armed with countrymade pistol that he, too, opened shots resulting in the death of Ram Prasad and injuries to Sona Devi alias Jal Devi PW 1. May be that owing to close relationship with Sewati Lal and, of course, with his sons he joined them in forming the unlawful assembly in the prosecution of common object of which this crime was committed. It is not necessary for the Court to speculate in this behalf as to what was the reason for his joining the other culprits in committing this crime. What is only of some importance is that he is close relative of other accused appellant and there is clear, clinching and satisfactory evidence against him, too, of being an actual participant of the crime. Conversely, it may be so stated that the prosecution could have no motive whatsoever to implicate him falsely if he was not actually there as a member of unlawful assembly participating in this crime. In his statement under Section 313 Cr. Conversely, it may be so stated that the prosecution could have no motive whatsoever to implicate him falsely if he was not actually there as a member of unlawful assembly participating in this crime. In his statement under Section 313 Cr. P. C. , too, he could not assign any specific reason for his false implication. Nor is there any evidence from his side in this regard. His case is not at all distinguishable from others. Free flight to imagination is not permissible. We, therefore, reject the third argument also advanced by the learned counsel for the accused appellants. 19. In view of the above discussion, we do not find any merit in these appeals. They are liable to be dismissed. Both Criminal Appeal Nos. 1231 and 1232 of 1981 are hereby dismissed. Accused appellants Sewati Lal, Malkhan Singh and Sri Ram of Criminal Appeal No. 1231 of 1980 have already died and the appeal abated respecting them. 20. The conviction of the accused appellant Gaya Prasad son of Nathuram Ram of Criminal Appeal No. 1231 of 1980 and of Ganga Singh son of Sewati Lal of Criminal Appeal No. 1232 of 1980 under Sections 148, 302/149 and 307/149 I. P. C. is upheld together with their sentences of two years rigorous imprisonment, life imprisonment and five years rigorous imprisonment respectively. They are on bail. The Chief Judicial Magistrate, Etah shall cause them to be arrested and lodged in jail to serve out the sentences passed against them. 21. The judgment be immediately certified to the lower Court for reporting compliance to this Court within two months from the date of receipt of a copy of this order. Appeals dismissed. .