Judgment GUMAN SINGH, J. ( 1 ) THIS appeal under section 374 (2) of the Code of Criminal Procedure is directed against the judgment and order dated 7-10-2003. passed by learned additional District and Sessions Judge, Fast track, Alwar, whereby the accused appellants Ami Lal, Lakhan and Kala Ram alias kaluram have been convicted and sentenced as under :-Under Section 302. IPC life Imprisonment each with fine of Rs. 5000/- each, in default of payment of fine to under go one year additional rigorous imprisonment each. Under Section 341. IPC one months simple imprisonment each. Under Section 3/25 Arms Act appellant Kalaram alias Kaluram has also been convicted and sentenced three years rigorous imprisonment with fine of Rs. 2000/-, in default of payment of fine, to under go six months additional rigorous imprisonment. All the sentence were ordered to run concurrently. ( 2 ) ACCORDING to the prosecution case, a written report (Ex. P. 17) was lodged by informant Bhagwan Sahai son of Pratap Gujar resident of Dhani Dadhikar at Police Station Sadar Alwar, on dated 15-6-2001 at 8. 15 p. m. wherein he stated that on that day at about 6 p. m. he along with his brother surjan and his brothers son Prahlad and banwari had gone to bring Bazri (crystal sand used in construction) in the Tractor-Trolley from the jungle. Suddenly Lakhan, rohitash, Kala, all sons of Sohan Lal and ami Lal s/o Ram Ratan, armed with gun and farsies, came out of the pits where they were hiding and attacked. Kala and Rohitash fired on Surjan while Lakhan and Amilal assaulted him with farsies. The informant along with Prahlad and Banwari ran away from there to save their lives while Surjan died at the spot. On receipt of the aforesaid report a case under Sections 302/34, 341 of the Indian Penal Code was registered and the investigation commenced. After completion of investigation challan was filed. The case was committed and in due course it came up for trial in the Court of Additional sessions Judge (Fast Track), Alwar. ( 3 ) ALL the accused appellants including rohitash were charge sheeted for the offence under Sections 341, 302, and in the alternative under Sections 341 and 302/34, IPC while the accused appellants Kalaram alias kaluram was also charge sheeted for the offence under Section 3/35 of the Arms Act. ( 3 ) ALL the accused appellants including rohitash were charge sheeted for the offence under Sections 341, 302, and in the alternative under Sections 341 and 302/34, IPC while the accused appellants Kalaram alias kaluram was also charge sheeted for the offence under Section 3/35 of the Arms Act. Since Rohitash was absconding, therefore, trial proceeded against the present appellants. ( 4 ) DURING the trial, the prosecution examined as many as 13 witnesses. Therefore the statements of the accused persons were recorded under Section 311, Cr. P. C. wherein they stated that Surjan, Ram Karan, lichhma, all sons of Pratap had committed murder of their brother and they (the accused-appellants)had appeared as witnesses in that case and hence they have been falsely implicated on account of enmity. D. W. 1 Madan has been examined by the accused-appellants in defence. ( 5 ) WE have heard learned counsel for the appellants, learned Public Prosecutor and having scanned the material on record we find that the cause of death of deceased siya Ram alias Surjan was homicidal in nature. As per the post-mortem report (Ex. P. 9), the following ante-mortem injuries were found on the person of deceased :- (1) Incised wound is amputed left Index finger of left hand with haematoma at fracture side at the level of base of terminal pharynx left Index finger. (2) Incised wound 10 x 4 cm lung deep with red clotted blood with fracture of left clavicle, horizontally placed. (3) Lacerated wound 4 x 4 cm anteriorly on neck near medial end of clavicle with red clotted blood. Muscle deep where two dat nums dhakan recovered from anteriorly neck stained with blood and attached a piece of bone with fracture of left clavicle bone. (4) Incised wound 8 X 4 cm anteriorly neck with red clotted blood below thyroid cartilage with red clotted blood. Transversely placed with cutting of Trachea and oesophague both with haematoma. Both side internal carotid arteries cut with haematoma. (5) Incised wound 6 x 4 cm muscle deep with red clotted blood, obliquely placed right side neck with underlying structures of neck and muscle cut. (6) Incised wound 10 x 8 cm with red clotted blood over right eye ball is cut. Facial bones and orbit cut with haematoma with cutting of all muscles of face and right eye. (5) Incised wound 6 x 4 cm muscle deep with red clotted blood, obliquely placed right side neck with underlying structures of neck and muscle cut. (6) Incised wound 10 x 8 cm with red clotted blood over right eye ball is cut. Facial bones and orbit cut with haematoma with cutting of all muscles of face and right eye. In the opinion of the doctor the cause of death was shock due to cutting of both sides carotid arteries and vein also left lung is cut with haematoma and sufficient to cause death in ordinary course of nature. ( 6 ) ON reappraisal of the prosecution evidence, it is revealed that the occurrence took place at about six in the evening and the report was lodged by the informant (P. W. 7)Bhagwan Sahai at 8. 30 p. m. at the Police station, Sadar, Alwar, situated at a distance of about 11 kms as shown in the FIR (Ex. P. 27) where the informant had gone by tractor. The informant (P. W. 7) Bhagwan Sahai himself is eye-witness of the occurrence, has deposed that he along with deceased Sarjan, prahlad (P. W. 8) and Banwari (P. W. 9) had gone to take Bazri and when they were filing their tractor, all the accused came and fired on his brother Surjan, who sustained injury on his neck and the two accused lakhan and Amilal inflicted farsi blows, while the gun with Rohitash, failed to fire. Thereafter they ran away from there and saw the incident by standing at a distance of 20 feet. Banwari (P. W. 9) had run away from there even earlier, Banwari (P. W. 9) has been declared hostile as he has denied his presence at the time of incident. (P. W. 8) Prahlad, who was also eye-witness and had gone to take bazri has corroborated the testimony of (P. W. 7) Bhagwan Sahai and has deposed that first, accused Kala, fired gun at the deceased Surjan, causing injuries on his neck. Then the accused Amilal, Lakhan and rohitash inflicted injuries by farsi on the person of deceased. Accused Rohitash had a gun but that failed to fire. ( 7 ) THE testimony of the eye-witnesses has been further corroborated from the medical evidence on record. Then the accused Amilal, Lakhan and rohitash inflicted injuries by farsi on the person of deceased. Accused Rohitash had a gun but that failed to fire. ( 7 ) THE testimony of the eye-witnesses has been further corroborated from the medical evidence on record. As many as six injuries were found on the person of deceased Surjan, out of which five were caused from sharp edged weapon while injury No. 3 was a lacerated wound 4 x 4 cm anteriorly on neck near medial end of clavicle with red clotted blood muscle deep, where two dat numa dhakan (lids) were recovered which were stained with blood and attached a piece of bone with fracture of left clavicle bone. From the recovery Memo Ex. P. 22, it is further revealed that from the place of incident where the dead body was lying, five pellets were found in the blood oozing from the body and on chemical examination the same were found stained with human blood. Thus, from the ocular testimony coupled with the nature of injury No. 3 and the fact that two lids were found from inside the wound and that five pellets were also recovered from the bipod oozing from the body, it can be said that injury could be inflicted by gun shot in all probability, though there has been no medical opinion pertaining to blackening of tattooing or presence of pellets inside the body. This conclusion is further strengthened from the evidence on record that one 12-bore country made pistol was also recovered at the instance of accused Kalu from his house vide recovery memo Ex. P. 12 and on F. S. L. Examination vide Ex. P. 40, the said 12-bore country made pistol was found in working order and on examination of the barrel residue indicated that the said 12-bore country made pistol had been fired. However, the definite time of its last fire could not be ascertained. Likewise, five incised wounds found on the dead body also corroborate the ocular testimony on the point specially in view of recovery of sharp edged weapons at the instance of accused amilal and Lakhan and the fact that the same were found to be stained with human blood as per F. S. L. Report Ex. P. 39. Likewise, five incised wounds found on the dead body also corroborate the ocular testimony on the point specially in view of recovery of sharp edged weapons at the instance of accused amilal and Lakhan and the fact that the same were found to be stained with human blood as per F. S. L. Report Ex. P. 39. ( 8 ) IT has been strenuously argued on behalf of the accused-appellants that in the facts and circumstances of the case the appellants should be, treated to have acted in furtherance of their right of private defence of property as the place where incident took place belonged to (D. W. 1) Madan and he had given this field for ploughing purposes to the appellants and they could alone excavate bazri from the field. Thus, according to the learned counsel for the appellants, the complainant party including the deceased had no right to take bazri from the field and on their doing so if the appellants assaulted them, they were well within their right of private defence and in that case the only point which remains for consideration is whether the appellants had exceeded their right of private defence and if yes to what extent. While adverting the aforesaid proposition, it may be noted that no such plea was taken by the appellants in their statement recorded under Section 311, Cr. P. C. and their sole defence has been that they were falsely implicated on account of enmity as their brother was murdered by the complainant party and they had appeared as witness in that case. In this regard, it may be pertinent to note that in the site inspection map (Ex. P. 19) nallah (riverlet) is shown in North Eastern side of the field of madan (D. W. 1) and the incident is alleged to have taken place at place marked x but "bazri was not in the field but it was in the nallah and that the appellants were themselves taking bazri from the nallah in North mark x-3 and their tractor was kept standing at mark x-2 in the barren land out side the field of Madan. It is also a matter of common knowledge that bazri (crystal sand) is deposited in the beds of rivers and riverlets on formation of crystals from rocks due to drainage. It is also a matter of common knowledge that bazri (crystal sand) is deposited in the beds of rivers and riverlets on formation of crystals from rocks due to drainage. The informant with others along with deceased were in the process of filling their tractor with bazri and there has been no dispute of taking bazri from the nallah. Therefore, there has been as such no occasion of challenging the complainant party on the right of taking bazri from the nallah. Moreover, from the evidence on record, it has not been revealed that there has been any such dispute between the parties. On the other hand it is undisputed that there has been a long standing enmity between the parties and the enmity being a double edged weapon, the occurrence could be sequel of the revenge of the murder allegedly committed by the complainant party. ( 9 ) IN Anil Rai v. State of Bihar ( AIR 2001 sc 3173 ) the Apex Court held that where enmity is proved to be the motive for the commission of crime, the accused cannot urge that despite proof of the motive of the crime, the witnesses proved to be inimical should not be relied upon. Bitter animosity held to be a double edged weapon, may be instrumental for false involvement and such possibility has to be kept in mind while evaluating the prosecution witnesses but the testimony of eye-witnesses which is other-wise convincing and consistent, should not be discarded. ( 10 ) IN the case in hand as already noticed, the presence of complainant and accused party at the place of occurrence where they had gone to take bazri stands proved. The first information report in the case was promptly lodged and that the ocular testimony of the eye-witnesses is found to be consistent and convincing in view of the corroboration from medical and other evidence. The apprehension that on account of enmity the appellants could be falsely implicated has been further belied from the fact that a plea of right of private defence has also been tried to be developed. Therefore, we find that the long standing enmity has been rather a cause behind the crime. ( 11 ) WE thus see no infirmity in the impugned judgment of the learned trial Court. Therefore, we find that the long standing enmity has been rather a cause behind the crime. ( 11 ) WE thus see no infirmity in the impugned judgment of the learned trial Court. However, we find that offence was committed in furtherance of common intention and, therefore, we instead of Section 302 convict the appellants under Section 302 read with 34, IPC and sentence each of them to suffer imprisonment for life with fine of Rs. 5,000/-each, in default of payment of fine to undergo one years additional rigorous imprisonment. However the conviction and sentence awarded by the learned trial Court is maintained for other offences. ( 12 ) FOR these reasons the appeal being devoid of merit stands dismissed. Appeal dismissed.