M. C. JAIN, J. There are six accused-appellants, namely, Raghunandan alias Bade Mali, Mahesh, Shiv Singh, Brij Raj, Rum Niwas and Raju. The first five are brothers and sixth one Raju is son of one of them, Ram Niwas. They have preferred this appeal against the judgment and order dated 21-10-2003 passed by Sri J. B. Singh, Additional Sessions Judge (Fast Track Court No. 4), Etah in S. T. No. 341 of 2001. All of them have been convicted under Sections 148, 120-B, 404 and 302 read with Section 149 I. P. C. The sentences passed against them are these: Two years rigorous imprisonment under Section 148 I. P. C. Two years rigorous imprisonment under Section 404 I. P. C. and fine of Rs. 1,000/-each; life imprisonment and fine of Rs. 5,000/-each under Section 302 read with Section 149 I. P. C. and life imprisonment under Section 120-B I. P. C. and fine of Rs. 5,000/-on each of them. In default of payment of fine, one weeks further simple imprisonment has to be undergone under Section 404 I. P. C. , one months further simple imprisonment under Section 302 read with Section 149 I. P. C and one months further simple imprisonment under Section 120-B I. P. C. All the substantive sentences have been ordered to run concurrently. 2. The incident took place on 1-1-2001 at about 4. 30 p. m. on the triangle of Qila Road in the town of Aliganj, Police Station Aliganj, District Etah and the F. I. R. was lodged the same day at 5. 30 p. m. by an eye-witness Brij Raj Singh PW 1. The distance of the Police Station from the place of occurrence was one kilometre. The six accused-appellants and two others, namely, Rameshwar Singh Yadav and Jogender Singh Yadav (total eight persons) were named in the F. I. R. The allegations against Rameshwar Singh Yadav and Jogender Singh Yadav were of criminal conspiracy. However, they were not put on trial. The substratum of the case as surfacing from the F. I. R. and evidence adduced in the Court may be related for appreciation of the subsequent discussion. On the fateful day, the informant Brij Raj Singh PW 1 and his nephew Shiv Ratan PW 2 had gone to Nahar Singh market in the town of Aliganj to purchase vegetables. The substratum of the case as surfacing from the F. I. R. and evidence adduced in the Court may be related for appreciation of the subsequent discussion. On the fateful day, the informant Brij Raj Singh PW 1 and his nephew Shiv Ratan PW 2 had gone to Nahar Singh market in the town of Aliganj to purchase vegetables. Near the vegetable Mandi, the accused Raghunandan alias Bade Mali, Mahesh, Shiv Singh, Brij Raj Singh, Ram Niwas and Raju were there who were conversing with Rameshwar Singh Yadav M. L. A. and his brother Jogender Singh Yadav. Brij Raj and his nephew Shiv Ratan were returning to village on foot after purchasing vegetables. Brij Raj Singhs brother Raghunandan was also purchasing vegetables in the market at the same time and he was left there while engaged in making such purchase. When Brij Raj Singh and Shiv Ratan reached at the triangle of Qila Road, Raghunandan with rifle hung on his shoulder came from behind on cycle, crossed them and proceeded ahead covering about 50 paces towards the village. It was then at about 4. 30 p. m. that six accused persons named above armed with fire-arms appeared all of a sudden. Raghunandan alias Bade Mali was armed with licensed double barrel gun. The rest had illicit arms. All of them started firing, targeting Raghunandan Singh who, receiving shots, died at the spot. The incident created a flutter at the scene of incident. The accused Shiv Singh also took away the rifle of the victim Raghunandan while fleeing from the spot. The murder of Raghunandan Singh was allegedly committed by the accused in consequence of criminal conspiracy with Rameshwar Singh Yadav M. L. A. and his brother Jogender Singh Yadav. 3. Ram Singh-brother of Raghunandan alias Bade Mali had been murdered 15-20 days before this incident. Ram Lakhan, Shyam Lakhan (brothers-sons of present deceased Raghunandan Singh) and 4 others were named in the F. I. R. that had been lodged for the murder of Ram Singh. Two out of those four were Awadhesh and Nanhey (brothers-sons of Prem Singh ). Prem Singh was another brother of Raghunandan Singh deceased. 4. On the lodging of the F. I. R. , a case was registered by Head Constable Hem Singh PW 4 by preparing chick and making entry in G. D. Investigation was entered into. Two out of those four were Awadhesh and Nanhey (brothers-sons of Prem Singh ). Prem Singh was another brother of Raghunandan Singh deceased. 4. On the lodging of the F. I. R. , a case was registered by Head Constable Hem Singh PW 4 by preparing chick and making entry in G. D. Investigation was entered into. The Investigating Officer was Station House Officer Nawal Kishore Chaudhary PW 5. 5. The post-mortem over the dead-body of the deceased was conducted on 2-1-2001 at 2. 30 p. m. by Dr. Hari Om Gupta PW 3. The deceased was aged about 55 years and one day had passed since he died. The following ante-mortem injuries were found on the person of the deceased: (1) Fire-arm wound of entry 4x1 cm on left side of hip. (2) Fire-arm wound of entry 1 cm x 1 cm right side of back of chest, blackening present. (3) Fire-arm wound of exit 2 cm x 1 cm on right side of chest. (4) Fire-arm wound of entry 1. 5 cm x 1 cm on right side of back of chest, (5) Fire-arm wound of entry 3 cm x 1 cm on left side of chest. Blackening present. (6) Lacerated wound 3 cm x 1 cm x muscle deep on top of skull. 6. On internal examination, both the lungs and pericardium were found lacerated. The cause of death was shock and haemorrhage as a result of the ante-mortem injuries. 7. During investigation while inspecting the site and preparing site-plan thereof, the Investigating Officer had taken in possession the cycle of deceased which had been given in custody of his brother Amar Singh. Blood-stained and simple earth had been collected from the site and sealed separately. Two empty cartridges of 315 bore and another of 12 bore had also been recovered from the spot. The rifle of 315 bore bearing No. 78ab 0226 (belonging to deceased Raghunandan Singh) was also recovered on 21- 1-2001 from the heap of straw in the house allegedly belonging to accused Raghunandan alias Bade Mali. On 19-1-2001 a country made pistol of 12 bore had been recovered from the accused Ram Niwas alongwith two live cartridges of 12 bore. From the possession of Shiv Singh a countrymade pistol of 315 bore and a live cartridge of the same bore had been recovered. On 19-1-2001 a country made pistol of 12 bore had been recovered from the accused Ram Niwas alongwith two live cartridges of 12 bore. From the possession of Shiv Singh a countrymade pistol of 315 bore and a live cartridge of the same bore had been recovered. On conclusion of investigation only present six accused-appellants were charge-sheeted who were put to trial. 8. The defence was of denial and of false implication. 9. At the trial, the prosecution in all examined seven witnesses. Out of them Brij Raj Singh (informant) PW 1 and Shiv Ratan PW 2 were eye-witnesses who supported the prosecution case that all the six accused-appellants opened shots on the deceased. It was clarified by Brij Raj Singh PW 1 that the deceased had also been hit on the head by the butt of fire-arm when his rifle was snatched by Shiv Singh accused immediately after shooting spree and of the victim having fallen down. It was in the testimony of both the eye-witnesses that it was Shiv Singh accused who had snatched away the rifle of the deceased. 10. Dr. Hari Om Gupta PW 3 had conducted autopsy on the dead-body of the deceased. It was Head Constable Hom Singh PW 4 who prepared the chick report and made entry in the G. D. As stated above, N. K. Chaudhary PW 5 was the Investigating Officer and Surendra Singh Chauhan PW 6 had prepared the inquest papers, he having accompanied the Investigating Officer to the spot. Shyam Pal Singh PW 7 was the witness of recovery of the rifle of the deceased from the house of accused Raghunandan alias Bade Mali. 11. One A. K. Singh, Advocate was examined as DW 1 by the accused also in their defence. He stated to be practising in Allahabad High Court and supported the plea of alibi taken by one of the accused Raghunandan alias Bade Mali that on 1-1-2001, he was present at Allahabad in connection with Writ Petition No. 239 of 2000, Dharmapal v. State of U. P. , in which he had filed an affidavit. This witness claimed to have made endorsement of his identification on his affidavit in Allahabad. 12. As the evidence of the prosecution commended itself to the trial Judge, he recorded the impugned judgment. 13. This witness claimed to have made endorsement of his identification on his affidavit in Allahabad. 12. As the evidence of the prosecution commended itself to the trial Judge, he recorded the impugned judgment. 13. We have heard Sri P. N. Misra, learned Senior Advocate from the side of accused-appellants and Sri Karunanand Bajpayee, learned A. G. A. from the side of the State. 14. It has first been argued for the appellants that the F. I. R. was ante-timed and lodged after consultation with others. The argument was sought to be supported on this premise that even rifle number of the deceased allegedly taken away by the accused after committing his murder was mentioned in the F. I. R. Further, the informant Brij Raj Singh PW 1 (eye-witness) could not explain the wordily meaning of a few words used in the F. I. R. , when questioned about them in his cross- examination. It was pointed out that the scribe of the F. I. R. , namely, Ram Babu Singh was not examined by the prosecution. The argument has no substance and is liable to be rejected. There was hardly any necessity for the scribe to be examined by the prosecution when the informant Brij Raj Singh PW 1 (eye- witness), at whose behest the F. I. R. was written, owned it. The incident took place at about 4. 30 p. m. and the F. I. R. was lodged an hour later at 5. 30 p. m. on 1-1-2001. The distance of police station from the place of occurrence was only one kilometre. The mentioning of the number of the rifle of the deceased in the F. I. R. was well explained by Brij Raj Singh PW 1 (brother of the deceased) that he was informed of it by his brothers and sons at the time the F. I. R. was being got scribed. It also came in his testimony that the distance of his village was only three kilometres from the spot. Judged in right perspective, it was not at all surprising that number of rifle could be mentioned in the F. I. R. Spontaneity and genuineness of the F. I. R. and the time at which it was lodged could not be doubted on this premise either that the informant did not know the meaning of certain words used in it. Judged in right perspective, it was not at all surprising that number of rifle could be mentioned in the F. I. R. Spontaneity and genuineness of the F. I. R. and the time at which it was lodged could not be doubted on this premise either that the informant did not know the meaning of certain words used in it. It may be pointed out that Brij Raj Singh PW 1 was an unlettered person who put his thumb-impression on the F. I. R. and on his testimony delivered in Court. When an illiterate person gets an F. I. R. scribed by another, the latter makes use of certain words to give it a presentable shape without damaging the core of the information. A little such tinkering on the part of the scribe would not detract from the genuineness to the document. The informant Brij Raj Singh PW 1 very well stood by the substratum of the contents of the F. I. R. and that was sufficient. The defence could not score any point by banking upon hyper-technicalities. 15. It has next been argued by the learned Counsel for the appellants that there was motive on the part of the prosecution to falsely implicate the accused-appellants. The Counsel reasoned that admittedly Ram Singh (brother of the accused-appellants-Raghunandan alias Bade Mali. Mahesh, Brij Raj, Shiv Singh and Ram Niwas) had been murdered 15-20 days before this incident and it was ample motive for the prosecution to implicate the accused-appellants for the murder of Raghunandan Singh whose two sons Ram Lakhan and Shyam Lakhan and two nephews Awadhesh and Nanhe had been named as the culprits of the murder of the Ram Singh. The argument does not impress us at all. Rather, the motive could be on the part of the accused-appellants to murder Raghunandan Singh. It does not have the attraction of logic that close relations i. e. Brij Raj Singh PW 1 and Shiv Ratan PW 2 would screen the real culprits and falsely implicate innocent persons in the murder of Raghunandan Singh. The motive is treacherous and elusive ground which operates both ways. In some cases, motive is evenly balanced while in others its unilateral streaks are prominent. The guiding factor is as to who could be the aggrieved party in the light of previous background. The motive is treacherous and elusive ground which operates both ways. In some cases, motive is evenly balanced while in others its unilateral streaks are prominent. The guiding factor is as to who could be the aggrieved party in the light of previous background. In the present case, Ram Singh-brother of five accused-appellants and uncle of the sixth one had been murdered only 15-20 days before the present incident and for that crime two sons and two nephews of the present deceased Raghunandan Singh had been named as culprits. Therefore, that incident was hot on the heels of the accused-appellants to commit this crime by taking revenge in the shape of murder of Raghunandan Singh. Dissecting the aspect of the motive, we find that the boot was on the other leg. To say in other words, there was hardly any motive on the part of prosecution witnesses to falsely implicate the accused-appellants. Rather, the accused persons had strong motive to take revenge by murdering one of the family members of those who had been named as murderers of Ram Singh, that incident having taken place only 15-20 days back. So, the argument assailing the prosecution case on the ground that prosecution witnesses had a motive to falsely implicate the accused falls through. We should also say in passing that motive becomes irrelevant in a case of direct evidence as is the present one. The motive, to say broadly, only heightens the probability. 16. The learned Counsel for the accused-appellants then urged that there was conflict between medical evidence and ocular testimony. He reasoned that as per the prosecution case all the six accused- appellants had zeroed in on the deceased and resorted to firing at him, whereas the deceased had sustained only four fire-arm wounds of entry and one of exit, besides a lacerated wound. So, according to him, the number of assailants was more (six) than the fire-arm injuries (four) sustained by the deceased. This argument is fallacious. If a number of persons target a single person, it is not necessary that the shots fired by all of them must hit him. Shots opened by the assailants cannot always be mathematically proportionate to the injuries received by the deceased. Some of the shots may hit the object while others may not. We do not see any conflict between ocular testimony and medical evidence. Shots opened by the assailants cannot always be mathematically proportionate to the injuries received by the deceased. Some of the shots may hit the object while others may not. We do not see any conflict between ocular testimony and medical evidence. The deceased received four gunshot wounds of entry. Two of them even had blackening feature indicative of close range shooting. The lacerated wound was also well explained in the testimony of Brij Raj Singh PW 1 that the deceased had been hit on the head by the butt of fire-arm when his rifle was snatched by Shiv Singh accused immediately after the shooting spree and the victim having fallen down. Far from their being any conflict, the ocular testimony and medical evidence are perfectly harmonious and in tune with each other. 17. Two fire-arm wounds of entry were on right side of back of chest, third was on the left side of chest and the fourth on the left side of hip. They clearly indicated that there had been ringing of the victim and it was for this reason that he could receive fire-arm injuries on front of chest and also on back with yet another fire-arm injury on the left side of the hip. 18. The learned Counsel for the accused-appellants then argued that there was contradiction in the testimony of two eye-witnesses, namely, Brij Raj Singh PW 1 and Shiv Ratan PW 2 on the crucial point which showed that they were playing on their imagination. He pointed out that according to Brij Raj Singh PW 1, the accused-appellants had emerged from the side of a tractor. The tractor was parked by the side of the road and it went off immediately after the incident. On the other hand, Shiv Ratan PW 2 denied the presence of any tractor. He stated that the accused-appellants had come from the front side and started firing on the deceased. We should say that natural variances are always there in the testimony of truthful witnesses. We do not think that the contradiction picked up by the Counsel for the accused-appellant could justify the rejection of the testimony of Brij Raj Singh PW 1 and Shiv Ratan PW 2. Needless to say, when many persons look at an event, they have their own power or vision and opportunity to reckon with. The variances are natural. We do not think that the contradiction picked up by the Counsel for the accused-appellant could justify the rejection of the testimony of Brij Raj Singh PW 1 and Shiv Ratan PW 2. Needless to say, when many persons look at an event, they have their own power or vision and opportunity to reckon with. The variances are natural. Every individual has his own experience and recounts in his own way. In the case at hand, the presence of two eye-witnesses Brij Raj Singh PW 1 and Shiv Ratan PW 2 was well explained that they had gone to market to purchase vegetables where the deceased Raghunandan Singh was also engaged in purchasing vegetables. These two witnesses were returning home on foot whereas Raghunandan Singh deceased had followed them on a cycle. They had reached at triangle of Qila Road when Raghunandan coming on cycle with rifle hung on his shoulder crossed them and proceeded about 50 paces ahead. Then the incident took place at about 4. 30 p. m. Since these two witnesses were pedestrians and Raghunandan Singh, deceased was using a cycle, the latter could cover the distance and even go ahead of them for about 50 paces, though he had started back journey from market after these two. The reason for their presence assigned by them was also quite plausible and acceptable. 19. It is also significant to note that they did not know that the incident was going to happen. When an incident like the present one happens, the attention of the persons nearby is focussed or riveted on the main incident. The main incident was of the shooting of the deceased which these two witnesses saw and unerringly testified before the Court. The question whether the assailants had come from behind the tractor or from any other side was ancillary or peripheral. The point of the matter is that both of them spoke about shooting by the accused-appellants on the deceased. According to Brij Raj Singh PW 1, the tractor had left the scene immediately after the incident. Brij Raj Singh PW 1 might have noticed the tractor whereas Shiv Ratan PW 2 could not. It is not a ground to reject the testimony of Brij Raj Singh PW 1 and/or Shiv Ratan PW 2 and to doubt their presence at the spot. 20. Brij Raj Singh PW 1 might have noticed the tractor whereas Shiv Ratan PW 2 could not. It is not a ground to reject the testimony of Brij Raj Singh PW 1 and/or Shiv Ratan PW 2 and to doubt their presence at the spot. 20. The learned Counsel for the accused-appellants lastly argued that out of the six accused-appellants, five-Raghunandan, Mahesh, Shiv Singh, Brij Raj and Ram Niwas are real brothers whereas sixth one Raju is the son of one of them Ram Niwas. He urged that admittedly there was bitter enmity between the two sides from before as murder of Ram Singh (on the side of the accused-appellants) had taken place about 15-20 days before the incident in which two sons and two nephews of the present deceased Raghunandan Singh were named accused. He submitted that the possibility of false implication of some of them was very much there and, therefore, all of them deserve to be afforded the benefit of doubt. Looking to the evidence of the present case, we are not inclined to accept this stock argument advanced from the side of the defence. True, the two eye-witnesses Brij Raj Singh PW 1 and Shiv Ratan PW 2 have testified against all the accused-appellants as being assailants of the deceased. Bitter enmity was also there between the two sides from before. Experience shows that at times inimical relationship between prosecution and the accused serves as inducement to the members of the prosecution to falsely implicate their enemies. Even when only some members of the rival group are involved in the offence, quite often one finds the tendency also to rope in some other persons. In doing so, the story is improved and modified to achieve the purpose. Exaggeration of the part played by the other side in the course of the incident is also quite common. The best course, therefore, is to look for corroboration of testimonial assertions of the eye-witnesses. The Court has to be vigilant in this regard so that overemphasis on the enmity factor does not cause either the innocent to be wrongly convicted or the guilty to be wrongly acquitted. 21. The best course, therefore, is to look for corroboration of testimonial assertions of the eye-witnesses. The Court has to be vigilant in this regard so that overemphasis on the enmity factor does not cause either the innocent to be wrongly convicted or the guilty to be wrongly acquitted. 21. Looking for corroboration of the testimony of Brij Raj Singh PW 1 and Shiv Ratan PW 2 (both family members of the deceased Raghunandan Singh), we find that corroboration of clinching import is available on record regarding the participation of the accused Ram Niwas and Shiv Singh accused- appellants. No doubt, the two eye-witnesses, namely, Brij Raj Singh PW 1 and Shiv Ratan PW 2 have testified involving all the six accused-appellants as the participants of the crime, but it would be safe to convict only two accused, namely, Shiv Singh and Ram Niwas about whose active participation there was not the slightest doubt because of corroboration being there. 22. A little discussion would render the picture clear. It is significant to note that from the spot, the Investigating Officer N. K. Chaudhary PW 5, amongst other things, had collected two empty cartridges of 315 bore and one cartridge of 12 bore. They had been sealed at the spot itself. They were the empties of the shots fired by the culprits to liquidate Raghunandan Singh. It is also noted from the testimony of the Investigating Officer that on 19-1-2001 he had arrested the accused appellant Raghunandan alias Bade Mali, Ram Niwas and Shiv Singh. Nothing was recovered from Raghunandan alias Bade Mali at the time of his arrest, but from the possession of the accused Ram Niwas a countrymade pistol of 12 bore and two live cartridges of the same bore were recovered. From the possession of accused Shiv Singh, a country made pistol of 315 bore and one live cartridge of 315 bore had been recovered. These recoveries were sealed immediately and a fard was prepared which is on record. We have gone through the cross-examination of the Investigating Officer. Recovery of the empty cartridges from the spot and all the above arms and ammunitions from Ram Niwas and Shiv Singh was not specifically challenged. Only a blanket suggestion was made in his cross-examination that whole investigation was spurious. He denied it. To come to the point, as we said, aforesaid recoveries were not challenged specifically. Recovery of the empty cartridges from the spot and all the above arms and ammunitions from Ram Niwas and Shiv Singh was not specifically challenged. Only a blanket suggestion was made in his cross-examination that whole investigation was spurious. He denied it. To come to the point, as we said, aforesaid recoveries were not challenged specifically. The recovered country made pistols as also the three empties recovered from the spot had been sent to the Ballistic Expert. The report of the Ballistic Expert dated 19-2-2001 is on record. At the appellate stage, an application was made from the side of accused-appellants that from their side the genuineness of Ballistic Experts report is admitted. On the admission of the genuineness of this document, it has been exhibited as H. C. Ext. Ka-1. The perusal of the report shows that the empty cartridges recovered from the spot and the countrymade pistols recovered from the possession of Shiv Singh and Ram Niwas at the time of their arrest were sent to him for comparison. The empty cartridge marked EC-1 was found to have been fired from countrymade pistol recovered from accused Ram Niwas, marked 2/2001. The other empty cartridge marked as EC-2 was found to have been fired from the countrymade pistol, marked 3/2001 recovered from the accused Shiv Singh. It would be recalled that the recovery from Ram Niwas was of 12 bore countrymade pistol and the countrymade pistol recovered from Shiv Singh was of 315 bore. EC-1 marked empty cartridge of 12 bore had been recovered from the spot. The other empty cartridges recovered from the spot were marked as EC-2 and EC-3. On comparison, the Ballistic Expert found that empty cartridge of 12 bore marked as EC-1 had been shot from countrymade pistol of 12 bore recovered from Ram Niwas. EC-2 empty cartridge had been found to have been shot from the countrymade pistol of 315 bore recovered from Shiv Singh. The characteristics were not sufficient for comparison of EC-3, the third empty cartridge of 315 bore recovered from the spot. So, the long and short of the above discussion is that the countrymade pistol of 12 bore recovered from Ram Niwas and another one of 315 bore recovered from the accused-appellant Shiv Singh had definitely been used in shooting the deceased as the two empty cartridges (recovered from the spot) were found to have been shot from these weapons. So, the long and short of the above discussion is that the countrymade pistol of 12 bore recovered from Ram Niwas and another one of 315 bore recovered from the accused-appellant Shiv Singh had definitely been used in shooting the deceased as the two empty cartridges (recovered from the spot) were found to have been shot from these weapons. It cemented the participation of these two accused in the murder of Raghunandan Singh. They were the brothers of Ram Singh who had been murdered 15-20 days back for which two sons and two nephews of present deceased Raghunandan Singh had been nominated as culprits. Obviously, they had strong motive to take revenge by shooting Raghunandan Singh upon whom they could lay hands on. May or may not be that they were accompanied by some of other four accused-appellants, but they should be afforded benefit of doubt for the reason that corroboration of testimony of eye-witnesses, namely, Brij Raj Singh PW 1 and Shiv Ratan PW 2 as regards their participation is not available and the safer course would be to convict those whose participation in the murder of Raghunandan Singh is established beyond any shade of doubt. 23. Judged in right perspective, the conviction of the other four accused-appellants-Raghunandan alias Bade Mali, Mahesh, Brij Raj and Raju deserves to be set aside. In a case like present one, since it is doubtful as to who else besides Shiv Singh and Ram Niwas participated in the commission of this crime of murder of Raghunandan Singh and number of total assailants can also not be ascertained definitely, Section 34 I. P. C. (instead of Section 149 I. P. C.) would come into play. These two, undoubtedly, acted in concert with previous meeting of minds. The application of Section 34 I. P. C. (instead of Section 149 I. P. C.) in a situation like the present one is very well possible in view of the law laid down by the Supreme Court in the case of Amur Singh v. State of Haryana, AIR 1973 SC 2231. 24. Learned A. G. A. argued that there was corroborative evidence regarding the participation of Raghunandan alias Bade Mali. He tried to support his argument by the recovery of rifle on 21-1-2001 from the heap of straw from the house which allegedly belonged to him. 24. Learned A. G. A. argued that there was corroborative evidence regarding the participation of Raghunandan alias Bade Mali. He tried to support his argument by the recovery of rifle on 21-1-2001 from the heap of straw from the house which allegedly belonged to him. It is to be pointed out that the case of the prosecution from the lodging of the F. I. R. till the furnishing of the testimony through eye- witnesses Brij Raj Singh PW 1 and Shiv Ratan PW 2 was that it was accused Shiv Singh who had snatched and taken away the rifle of the deceased from the spot. The evidence was not at all satisfactory that the house wherefrom the rifle was recovered exclusively belonged to the accused Raghunandan alias Bade Mali. Therefore, the alleged recovery of rifle from the heap of straw from the alleged house is not sufficient to import the participation of Raghunandan alias Bade Mali in the commission of the murder of Raghunandan Singh. He is own brother of Shiv Singh. May be that Shiv Singh concealed it there. As a matter of fact, the persons whose participation in the murder of Raghunandan Singh is established beyond doubt (whom we find to be one Ram Niwas and Shiv Singh) should be convicted. They alone committed the offence of snatching and taking away the rifle also of the deceased because the murder had been committed by them in furtherance of their common intention. It is, therefore, not possible to accept the argument of learned A. G. A. that the participation of Raghunandan alias Bade Mali in commission of this crime was established. 25. The conviction of the accused-appellants, namely, Shiv Singh and Ram Niwas under Section 120-B I. P. C is redundant. As a matter of fact, the prosecution case regarding criminal conspiracy was against 0 the other co-accused Rameshwar Yadav and Jogendra Singh Yadav who were not put on trial. There was no evidence of criminal conspiracy against the accused Raghunandan alias Bade Mali, Mahesh, Brij Raj and Raju either. 26. As an upshot of the above discussion, the appeal succeeds partly. The conviction and sentences recorded against Rughunandan alias Bade Mali, Mahesh, Brij Raj and Raju are set aside and they are acquitted of the charges levelled against them. The only accused-appellants Shiv Singh and Ram Niwas are held guilty. 26. As an upshot of the above discussion, the appeal succeeds partly. The conviction and sentences recorded against Rughunandan alias Bade Mali, Mahesh, Brij Raj and Raju are set aside and they are acquitted of the charges levelled against them. The only accused-appellants Shiv Singh and Ram Niwas are held guilty. The conviction and sentences recorded against them by the trial Court are modified this way that they stand convicted under Section 302 I. P. C. read with Section 34 I. P. C. and 404 I. P. C. read with Section 34 I. P. C. with the sentence of life imprisonment for the former offence and two years rigorous imprisonment for the latter offence of Section 404 I. P. C. read with Section 34 I. P. C. Both the sentences shall run concurrently. Raghunandan alias Bade Mali, Mahesh, Brij Raj and Raju are in jail. They shall be released from jail, if not wanted in any other connection. The accused Shiv Singh who has been convicted and sentenced for the offence under Section 302 I. P. C. read with Section 34 I. P. C. and 404 I. P. C. read with Section 34 I. P. C. is also in jail as per the record. The Chief Judicial Magistrate, Etah shall ensure it that he is actually in jail so that he suffers the sentences passed against him. The accused- appellant Ram Niwas who has also been convicted and sentenced for the offence under Section 302 I. P. C. read with Section 34 I. P. C. and 404 I. P. C. read with Section 34 I. P. C. is on bail as per the record. The Chief Judicial Magistrate, Etah shall cause him to be arrested and lodged in jail to serve out the sentences passed against him. 27. The judgment be certified to lower Court immediately for reporting compliance within one month from the date of receipt of a copy of it. Appeal dismissed. .