JUDGMENT Hon’ble Vijay Kumar Verma, J.—Challenge in this appeal preferred under Section 374 (2) of the Code of Criminal Procedure (in short ‘the Cr.P.C.), is to the Judgment and order dated 4.9.1982, passed by the 5th Additional Sessions Judge Fatehpur in S.T. No. 213 of 1981 (State v. Mathura and another), whereby the accused-appellant Ram Adhar has been convicted and sentenced to undergo imprisonment for life under Section 382 read with Section 34 of Indian Penal Code (in short `the IPC’), seven years rigorous imprisonment under Section 307, IPC and six months’ rigorous imprisonment under Section 323 read with Section 34, IPC. All the sentences shall run concurrently. 2. By the same judgment, the co-accused Mathura was also convicted and sentenced to undergo imprisonment for life under Section 302, IPC, five years’ rigorous imprisonment under Section 307 read with Section 34, IPC and six months rigorous imprisonment under Section 323 read with Section 34, IPC. He also had challenged his conviction and sentence by preferring criminal appeal No. 2228 of 1982, which was connected with this appeal, but due to his absence, that appeal has been separated. 3. The incident resulting in the death of Ram Kishore @ Andhu s/o Rameshwar occurred in the intervening night of 30/31.12.1980 at about midnight in village Lakhipur, situated within the jurisdiction of Police Station Khaga, District Fatehpur. The first information report was lodged by the complainant Rameshwar s/o Mahipal. The case of the prosecution as appearing from the chik FIR Ext. Ka 17 and statement of the complainant Rameshwar (P.W. 1), in brief, is that about 25 years ago, complainant’s father Sri Mahipal, had given 18 bigha land to his nephew (sister’s son) Ram Nath, who thereafter began to live in village Lakhipur after constructing his house behind the house of Mahipal. After the death of Ram Nath, his son Mathura came into possession over that land, but on the basis of false entry in the revenue papers, Mathura began to claim half share in the entire land of Mahipal. A panchayat was convened to resolve the dispute, but in vain. Thereafter the complainant filed a case in the Court of Tehsildar Khaga for correction of papers. The pairvi of that case was being done by complainant’s son Ram Kishore. 38.12.1980 was fixed in that case. A panchayat was convened to resolve the dispute, but in vain. Thereafter the complainant filed a case in the Court of Tehsildar Khaga for correction of papers. The pairvi of that case was being done by complainant’s son Ram Kishore. 38.12.1980 was fixed in that case. Ram Kishore had gone to attend the case on that day in Tehsil Khaga and when after attending the case he was coming back to his house, Mathura met him in the way near railway line Khaga and threatened him saying that "tumane mukadama dayar karke achha nahin kiya hai. Tumhe dekh Iegen.” It is alleged that in the intervening night of 30/31.12.1980, the complainant Rameshwar, his son Ram Kishore @ Andhu and grandson Viddya Prasad were sleeping on the roof of the house under the chhappar, where a lantern was litting. Other persons of the family were sleeping outside the house. At about midnight when the moon had risen, four persons came on the roof from southern side, due to which the complainant awakened and he saw that Mathura and his son Ram Adhar were armed with guns and their two unknown companions were having lathis in their hands. Mathura and Ram Adhar came near to Ram Kishore and Mathura said that "Ram Kishore Ieta hai. Sare ko mar kar mukadama chalane ka maja dikha do”. After this exhortation, Mathura himself fired from gun on the chest of Ram Kishore, due to which he died instantaneously. When the complainant and his grandson Viddya Prasad raised noise, the neighbours Gajraj, Surajbhan and Ram Niranjan @ Jhadole rushed towards the place of occurrence and when they challenged the assailants, Ram Adhar fired towards the complainant and other persons from his gun, but they escaped. The unknown assailants assaulted Viddya Prasad by means of lathis. When the accused persons were challenged by the village people, they fled away towards southern side. 4. Leaving the dead body of deceased Ram Kishore at the place of occurrence, the complainant went to P.S. Khaga, where he handed over the written report Ext. Ka 1, which was scribed by his grandson Viddya Prasad. On the basis of this written report, the then constable moharrir Prakash Narayan Singh prepared chik FIR Ext. Ka 17 and registered a case under Section 302, IPC at Crime No. 282/80 on 31.12.1980 at 8.30 a.m. against Mathura, Ram Adhar and two unknown persons. Ka 1, which was scribed by his grandson Viddya Prasad. On the basis of this written report, the then constable moharrir Prakash Narayan Singh prepared chik FIR Ext. Ka 17 and registered a case under Section 302, IPC at Crime No. 282/80 on 31.12.1980 at 8.30 a.m. against Mathura, Ram Adhar and two unknown persons. Entry of the registration of FIR was made in G.D. No. 7 Ext. Ka 19. 5. The injured Viddya Prasad was sent to the Primary Health Centre Khaga for medical examination, where he was medically examined by Dr. S.N. Awasthi P.W. 4, who prepared injury report Ext. Ka 4, according to which the following injuries were found on the person of injured : (1) An abrasion 2 cm x 1 cm on the left side of back 22 cm. below the left shoulder. (2) An abrasion 1 cm x .5 cm on the left side of back 4 cm. below the injury No. 1. (3) A contusion 4 cm x 2 cm on the left side of wrist, post surface, kept under observation and advise X-ray. (4) Contused swelling 11 cm x 4 cm on the right side of foot on the dorsum surface, 5 cm below the right ankle joint. (5) An abrasion 1 cm x . 5 cm on the right big toe, dorsum surface, 4 cm above the nail bed. Injury No. 3 was kept under observation. Rest injuries were simple. Injury No. 1, 2 and 5 were caused by friction and injury Nos. 3 and 4 were caused by some blunt object. Duration of the injuries was about one day old. 6. Station Officer S.I. Yadunath Dwivedi (P.W. 6) was present at P.S. Khaga at the time of registration of the FIR. He took up the investigation in his hands. After recording the statement of the complainant Rameshwar at P.S. Khaga, he reached the place of occurrence with other police personnel and conducted inquest proceedings on the dead body of Ram Kishore, during which inquest report Ext. Ka 5 and connected papers Ext. Ka 6 to Ext. Ka 10 were prepared and thereafter the dead body in sealed condition was sent through the constable Chandra Kishore and village Chaukidar Parmu for post-mortem examination, which was conducted by Dr. J.S. Rai (P.W. 3) on 1.1.1981 at 3.30 p.m. According to the post-mortem report Ext. Ka 5 and connected papers Ext. Ka 6 to Ext. Ka 10 were prepared and thereafter the dead body in sealed condition was sent through the constable Chandra Kishore and village Chaukidar Parmu for post-mortem examination, which was conducted by Dr. J.S. Rai (P.W. 3) on 1.1.1981 at 3.30 p.m. According to the post-mortem report Ext. Ka 3, the following ante-mortem injuries were found on the person of deceased : (1) Gun shot wound of entry 1 1/2” x 1 1/2” cavity deep in front of left chest at 10 Oclock position to left nipple. Margins inverted. Blackening present. (2) Four (4) gun shot wounds of exit in area 4" x 2 1/2” each 1/3" x 1/3" cavity deep, margins everted. No blackening, back of left chest, middle part near vertebra colour (illegible). Direction from front to back. In internal examination third rib was fractured, left pleura, left lung, pericardium and heart were found lacerated. About 5 Oz semi digested food was found in stomach and in small intestine also semi digested food was found. In the large intestine faecal matter and gases were found. Two big pellets were found in the body of the deceased and one pellet was found in his cloths. However, no wad piece was found in the body. According to Dr. Rai, the death was caused due to shock and haemorrhage as a result of ante-mortem injuries. 7. After conducting the inquest proceedings, the investigating officer recovered one empty cartridge and one lathi from the place of incident and prepared fard Ext. Ka 11. Thereafter, blood stained and simple earth were collected from there and after filling the same in two containers and getting them sealed, fard Ext. Ka 12 was prepared. The kathari, which was found lying on the cot of the deceased, was also taken into possession and fard Ext. Ka 13 was prepared in this regard. After seeing the lantern and torches, fard Ext. Ka 2 and Ext.Ka 14 were also prepared. Thereafter, spot inspection was made and site plan Ext. Ka 15 was prepared. The Investigating Officer during the course of investigation recorded the statements of other witnesses and after completion of the investigation, submitted charge-sheet Ext. Ka 16 against the accused Mathura and his son Ram Adhar. 8. Ka 2 and Ext.Ka 14 were also prepared. Thereafter, spot inspection was made and site plan Ext. Ka 15 was prepared. The Investigating Officer during the course of investigation recorded the statements of other witnesses and after completion of the investigation, submitted charge-sheet Ext. Ka 16 against the accused Mathura and his son Ram Adhar. 8. On the case being committed to the Court of Session for trial, the accused Mathura was charged under Section 302 and 307/323 both read with Section 34 IPC, whereas the appellant-accused Ram Adhar was charged under Section 307 and 302/323 both read with Section 34 IPC. Both the accused pleaded not guilty and claimed to be tried. 9. The prosecution in order to prove its case examined six witnesses in all. P.W.1 Rameshwar is the complainant and eye-witness of the incident. He has proved his written report Ext. Ka 1 in his statement recorded on 2.7.1982. P.W. 2 Viddya Prasad is also the eye-witness. He is injured also. P.W. 3 Dr. J.S. Rai and P.W. 4 Dr. S.N. Awasthi have proved post-mortem report Ext. Ka 3 and injury report Ext. Ka 4 respectively. P.W. 5 Ram Niranjan Singh is also the eye-witness. P.W. 6 Yadunath Dwivedi is the investigating officer. He has proved various papers as mentioned hereinabove. In addition, chik FIR Ext. Ka 17 and copy of G.D. No. 7 dated 31.12.1980 Ext. Ka 19 regarding registration of FIR have also been proved by him by recognizing the hand writing and signature of the then constable moharrir Prakash Narayan Singh. 10. In their statements recorded under Section 313 Cr.P.C., the accused persons denying their complicity in the incident of murder of the deceased Ram Kishore have stated that due to enmity they have falsely been implicated in this case. They did not examine any witness in their defence, but they have filed certified copy of the order sheet (Ext Kha 1) of case No. 40 of 1980 (Rameshwar and others v. Radhey Shyam and others) under Section 229-B U.P.Z.A. and L.R. Act. 11. The learned trial Court having taken the entire evidence into consideration, convicted and sentenced both the accused as mentioned in para (1) and (2) above. Hence the present appeal has been preferred by the appellant Ram Adhar. 12. 11. The learned trial Court having taken the entire evidence into consideration, convicted and sentenced both the accused as mentioned in para (1) and (2) above. Hence the present appeal has been preferred by the appellant Ram Adhar. 12. We have heard Sri I.K. Chaturvedi, amicus curiae appearing for the appellant, Sri A.K. Shukla learned AGA representing the State and perused the impugned judgment and entire evidence on record carefully. 13. Regarding the incident in which the murder of Ram Kishore @ Andhu was committed, the prosecution has examined three witnesses in this case. P.W. 1 Rameshwar and P.W. 2 Viddya Prasad were sleeping on the roof of the house under the chhappar in the fateful night along with the deceased. They both have supported the case of prosecution in their statements. P.W. 1 Rameshwar is the father of the deceased. FIR of the incident was lodged by him at P.S. Khaga on 31.12.1980 in the morning at 8.30 a.m. Supporting the FIR version, he (P.W. 1) has stated in his statement that about 25 years ago his father Mahipal had given 10 bigha land to his nephew (sisters son) Ram Nath, who began to live in village Lakhipur after constructing his house behind the house of Mahipal. After the death of Ram Nath, his son Mathura began to claim half share in the entire land of Mahipal and he got his name mutated in the revenue record. A panchayat was convened on this matter, but in vain. It is further stated by P.W.1 that when Mathura did not accept the decision of panchayat, he (P.W. 1) has to file a case in Tehsil Khaga for correction of papers, in which his son Ram Kishore used to do pairvi and when after attending that case about one and half year ago, Ram Kishore was coming back to his house and reached near the railway line Khaga, the accused Mathura met and threatened him saying that “tumane mukadama mere khilaph dayar kiya, eska maja tujhe dikhaunga”. P.W.1 has further stated that when in the fateful night he and his son Ram Kishore as well as grandson Viddya Prasad were sleeping on the roof of the house under the chhappar, at about midnight the accused Mathura and his son Ram Adhar armed with guns and their two unknown companions having lathis came on the roof from southern side and when on getting aahat he awakened, he saw that Mathura and Ram Adhar came near to Ram Kishore and Mathura fired on him from gun due to which he died instantaneously. It is also stated by the witness that he and his grandson Viddya Prasad raised noise, on which the witnesses Gajraj, Ram Niranjan and Surajpal came there and when they challenged the accused persons, Ram Adhar fired on them from gun, but they escaped. Thereafter the unknown accused having lathis assaulted Viddya Prasad, due to which he sustained injuries. It is further stated by P.W. 1 that lantern was litting in the chhappar and moon also had risen, in the light of which he had seen the incident and recognized the accused persons. The witness has proved his written report Ext Ka 1, which was got scribed by him from his grandson Viddya Prasad. It is also stated by the witness that in the next morning he and his grandson Viddya Prasad went to P.S. Khaga and handed over the written report there, on the basis of which, FIR was registered. 14. The statement of P.W. 1 has been corroborated by P.W. 2 Viddya Prasad in his statement recorded during trial on 3.7.1982. He is the son of deceased Ram Kishore. He has stated in his statement that about one and half year ago, when he, his grandfather Rameshwar and father Ram Kishore were sleeping on the roof of the house under the chhapper, at about midnight he awakened on the aahat of moving some persons and saw that four persons came from southern side, out of which Mathura and Ram Adhar were armed with guns and other two unknown persons were having lathis. It is further stated by P.W. 2 that mathura exhorted saying that “Yahi Ram Kishore leta hai, ise mukadama chalane ka maja chakha do” and after this exhortation, Mathura himself fired on Ram Kishore from his gun, due to which he sustained injuries and died instantaneously. It is further stated by P.W. 2 that mathura exhorted saying that “Yahi Ram Kishore leta hai, ise mukadama chalane ka maja chakha do” and after this exhortation, Mathura himself fired on Ram Kishore from his gun, due to which he sustained injuries and died instantaneously. It is also stated by this witness that he also was assaulted by the unknown assailants who were having lathis and when on hearing the noise, the witnesses Surajpal, Ram Niranjan @ Jhagole and Gajraj came and challenged the accused persons, Ram Adhar fired from his gun towards them, but they escaped and thereafter all the four accused fled away towards southern side. This witness also has stated that in the light of lantern, moon and torches of Gajraj and Surajpal, he had very well seen and recognized the accused persons. 15. Both the witnesses were subjected to lengthy cross-examination, but nothing material could be elicited from their mouth so as to discard the creditworthiness of their statements. There is no material contradiction or other weakness in the testimony of these witnesses. Both are natural witnesses, who were sleeping near the deceased in the fateful night at the time of occurrence. Viddya Prasad is injured also and hence his presence at the time of incident cannot be doubted. The learned trial Court after proper appreciation of evidence has drawn the right conclusion. On the basis of the reliable testimony of these witnesses it is fully proved beyond reasonable doubt that in the fateful night when the complainant Rameshwar, his son Ram Kishore (deceased) and grandson Viddya Prasad were sleeping on the roof of the house beneath the chhappar (Kuria), at about midnight the appellant-accused Ram Adhar and his father Mathura both armed with guns along with two unknown persons who were having lathis managed to reach on the roof and murder of Ram Kishore was committed by firing shot on him by Mathura by his gun. On the basis of their testimony, it is also fully proved that the accused Ram Adhar also fired from gun towards the complainant and other persons when they challenged the assailants and Viddya Prasad was assaulted by unknown assailants having Iathis, due to which he sustained injuries. 16. On the basis of their testimony, it is also fully proved that the accused Ram Adhar also fired from gun towards the complainant and other persons when they challenged the assailants and Viddya Prasad was assaulted by unknown assailants having Iathis, due to which he sustained injuries. 16. Although, the witness Ram Niranjan (P.W. 5) has also supported the case of prosecution in his statement recorded during trial on 30.7.1982, but if accepting the argument of the learned amicus curiae, the testimony of this witness is not taken into consideration on the ground that he belongs to another village and appears to be a chance witness, even then the complicity of the appellant Ram Adhar in the said incident is fully established beyond reasonable doubt on the basis of wholly reliable testimony of P.W. 1 and P.W. 2, which finds corroboration from the medical evidence. 17. Post-mortem report Ext. Ka 3 shows that there was one gun shot wound of entry and there were four gun shot wounds of exit. According to Dr. J.S. Rai (P.W. 3), who conducted post-mortem examination on the body of deceased, the ante-mortem injuries were possible to be caused at about midnight in the intervening night of 30/31.12.1980 by fire arms like gun. According to Dr. S.N. Awasthi (P.W. 4), who had medically examined the injured Viddya Prasad in Primary Health Centre Khaga, the injuries on his person were possible to be caused at about midnight in the intervening night of 30/31.12.1980. As such the ocular evidence of eye-witnesses Rameshwar and Viddya Prasad is corroborated in material particulars by medical evidence. 18. The testimony of the witnesses Rameshwar and Viddya Prasad was assailed by the learned amicus curiae contending that being the near relatives of the deceased, their testimony could not be relied upon to convict the accused. It was also submitted in this regard that according to the FIR version, the witnesses Gajraj and Surajbhan also had reached the place of incident, but for the reasons best known to the prosecution, these witnesses have been withheld and hence adverse inference should be drawn against the prosecution. We are not impressed with these contentions of the learned amicus curiae. It is true that the witness Rameshwar is the father of deceased, whereas the witness Viddya Prasad is his son, but the testimony of these witnesses cannot be brushed aside on this ground. We are not impressed with these contentions of the learned amicus curiae. It is true that the witness Rameshwar is the father of deceased, whereas the witness Viddya Prasad is his son, but the testimony of these witnesses cannot be brushed aside on this ground. The law is well settled that if the testimony of any witness is found reliable and acceptable, then his testimony cannot be discarded merely on the ground that he is related to the deceased or victim. In the case of Dalip Singh and others v. State of Punjab, AIR 1953 SC 364 , it has been laid down as under by the Hon’ble Apex Court : “A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts." 19. Again in Masalti and others v. State of U.P., AIR 1965 SC 202 , the Hon’ble Apex Court observed as under : "But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses.............. the mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct." 20. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct." 20. The above decision has been followed in Guli Chand and others v. State of Rajasthan, 1974(3) SCC 698 , in which Vadivelu Thevar v. State of Madras, AIR 1957 SC 614 , was also relied upon. 21. The following observations made by the Hon’ble Apex Court in Israr v. State of U. P., 2005 (51) ACC 113, in para 12 of the judgment are also worth mentioning : “ .....Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.” 22. The above position has been highlighted again in Galivenkataiah v. State of A.P., 2008 (60) ACC 370, in which reference has been made to some other cases also. 23. The testimony of the witnesses Rameshwar and Viddya Prakash can also not be discarded due to non-examination of the witnesses Gajraj and Surajbhan. Generally the people avoid to appear as witness even if they have witnessed the incident. The Hon’ble Apex Court in the case of Appa Bhai and another v. State of Gujarat, AIR 1988 SC 696 , in para 11 of the judgment has observed as under : “.....Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the nugget of truth with due regard to probability, if any, suggested by the accused.” 24. In the case of Krishna Mochi v. State of Bihar, 2002 SCC (Cri) 1220, the Hon’ble Apex Court in para 31 of the judgment has• made the following observations : “It is a matter of common experience that in recent times there has been a sharp decline of ethical values in public life even in developed countries much less a developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by Courts for manifold reasons. One of the reasons may be that they do no have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or high-ups in the Government or close to powers, which may be political, economic or other powers including muscle power.” 25. Regarding the testimony of P.W. 2 Viddya Prasad, it was further contended by learned amicus curiae that according to the statement made by him during investigation, he had awakened on hearing the sound of fire and hence his statement about seeing the incident of firing shot on the deceased by Mathura cannot be believed. Although the witness Viddya Prasad had told the investigating officer during investigation that he had awakened at about midnight on the sound of fire, as stated by P.W. 6 Yadunath Dwivedi in his statement at page 36 of paper book, but on this ground the testimony of this witness cannot be discarded. Although the witness Viddya Prasad had told the investigating officer during investigation that he had awakened at about midnight on the sound of fire, as stated by P.W. 6 Yadunath Dwivedi in his statement at page 36 of paper book, but on this ground the testimony of this witness cannot be discarded. If keeping in view the statement of Viddya Prasad recorded by the investigating officer during investigation, it is assumed that he had awakened on hearing the sound of fire, even then the complicity of the accused Ram Adhar in the alleged incident is fully established beyond reasonable doubt, because P.W. 2 also has specifically stated in his statement that on being challenged by the witnesses, the accused Ram Adhar fired towards them from gun. The statement of Viddya Prasad finds corroboration from the testimony of P.W. 1 Rameshwar. 26. The testimony of the witness Viddya Prasad was further assailed by the learned amicus curiae on the ground that he did not sustain any injury in any such incident and after obtaining false injury report from the Medical Officer of Primary Health Centre Khaga, his name was falsely mentioned as eyewitness in the FIR. The basis for this argument is that medical examination of Viddya Prasad was made very late, but no explanation for this delay has been furnished by the prosecution. It is true that Viddya Prasad was medically examined on 31.12.1980 at 8.30 p.m. in PHC Khaga by P.W. 4 Dr. S.N. Awasthi, but on this ground it cannot be said that false injury report was obtained by the police with a view to make him witness in the case. It has come in the statement of P.W. 1 Rameshwar that after the incident, he and his grandson Viddya Prasad went to P.S. Khaga in the morning and lodged the FIR there. Ext. Ka 19 is the copy of G.D. No. 7 dated 31.12.1980 regarding registration of the FIR, which was lodged at 8.30 a.m. The presence of Viddya Prasad has been mentioned in this GD and his injuries also have been noted therein. Therefore, the contention of the learned amicus curiae that false injury report about the injuries of Viddya Prasad was obtained by the police from the Medical Officer of PHC Khaga has no leg to stand. G.D. Ext. Therefore, the contention of the learned amicus curiae that false injury report about the injuries of Viddya Prasad was obtained by the police from the Medical Officer of PHC Khaga has no leg to stand. G.D. Ext. Ka 19 shows that there were injuries on the person of Viddya Prasad at the time of his arrival at P.S. Khaga at 8.30 a.m on 31.12.1980. From the reliable testimony of P.W. 1, it is fully proved that Viddya Prasad was also sleeping with him and his father Ram Kishore (deceased) on the roof of the house in the fateful night and he was beaten by lathis by the unknown companions of the appellant. Therefore, the testimony of P.W. 2 Viddya Prasad cannot be discarded due to his delayed medical examination. According to G.D. No. 7 Ext. Ka 19 the injured Viddya Prasad was sent with constable Bal Kishun for medical examination with chitthi majrubi. The injury report Ext Ka 4 shows that constable Bal Kishun had brought the injured Viddya Prasad to PHC Khaga. Therefore, if due to negligence or for some other reasons, the constable Bal Kishun caused delay in the medical examination of the injured Viddya Prasad, then on such ground the testimony of P.W. 2 cannot be discarded. 27. Drawing our attention towards the order-sheet Ext. Kha 1 of Case No. 40 of 1980 (Ram Adhar and others v. Radhey Shyam and others) under Section 229-B of U.P.Z.A. and L.R. Act, it was submitted by the learned amicus curiae that from this order-sheet the FIR version about giving threatening by the accused Mathura to the deceased on 30.12.1980 at the time of his coming back after attending the case in Tehsil Khaga becomes false, because there was no date in that case on 30.12.1980 as alleged in the FIR. It is true that in case No. 40 of 1980 the date fixed was 29.12.1980 and there was no date in that case on 30.12.1980 as alleged in the FIR, but on this ground the prosecution case cannot be discarded, because on the basis of cogent and reliable testimony of P.W. 1 Rameshwar and P.W. 2 Viddya Prasad, it has been fully proved beyond reasonable doubt that on the alleged date, time and place, the appellant-accused Ram Adhar with his father Mathura and two unknown companions came on the roof of house of the complainant and co-accused Mathura fired shot on Ram Kishore due to which he died instantaneously and on being challenged by the witnesses, the appellant Ram Adhar also fired towards them from gun but they escaped. Therefore,, if the allegation of FIR about giving threatening by the accused Mathura to the deceased on 30.12.1980 is not believed, even then the prosecution case about committing the murder of the deceased by the accused persons in furtherance of their common intention cannot be brushed aside on this ground. 28. Next submission made by the learned amicus curiae was that there was no motive for the accused-appellant to commit the murder of deceased. We do not agree with this contention. The litigation regarding land was going on between the accused Mathura and father of the deceased since prior to the incident of murder and there was enmity between the parties, which may be the motive for committing the murder of the deceased, who was doing pairvi of the case in Tahsil Khaga. Moreover, in the case of direct evidence of reliable nature, absence or weakness of motive looses significance. In the case of Thaman Kumar v. State of Union Territory of Chandigarh, (2003) 6 SCC 388 : ( AIR 2003 SC 3975 ), the Hon’ble Apex Court has observed as under : “There is no such principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessary result in acquittal of the accused. Where the ocular evidence is found to be trustworthy and reliable and finds corroboration from the medical evidence, a finding of guilt can safely be recorded even if the motive for the commission of the crime has not been proved.” 29. Where the ocular evidence is found to be trustworthy and reliable and finds corroboration from the medical evidence, a finding of guilt can safely be recorded even if the motive for the commission of the crime has not been proved.” 29. In the case of State of H.P. v. Jeet Singh, (1999) 4 SCC 370 : ( AIR 1999 SC 1293 ), the following observations have been made : “No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibiIity for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended.” 30. The following observations regarding motive made by the Hon’ble Apex Court in the case of Nathuni Yadav and others v. State of Bihar and another, 1997 (34) ACC 576, are also worth mentioning : “Motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is the emotion which impells a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable. Lord Chief Justice Chambell struck a note of caution in Reg v. Palmeri thus: “but if there be any motive which can be assigned I am bound to tell you that the adequacy of that motive is of Iittle importance. We know, from experience of Criminal Courts that atrocious crimes of this sort have been committed from very slight motives; not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressing difficulties." 31. We know, from experience of Criminal Courts that atrocious crimes of this sort have been committed from very slight motives; not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressing difficulties." 31. In the case of Molu and others v. State of Haryana, AIR 1976 SC 2499 , the Hon’ble Apex Court has held as under in para 11 of the report at page 2505: “It is well settled that where the direct evidence regarding the assault is worthy of credence and can be believed, the question of motive becomes more or less academic. Sometimes the motive is clear and can be proved and sometimes, however, the motive is shrouded in mystery and it is very difficult to locate the same. If, however, the evidence of the eye-witnesses is credit-worthy and is believed by the Court which has placed implicit reliance on them, the question whether there is any motive or not becomes wholly irrelevant.” 32. Regarding motive for commission of crime, the Apex Court has observed as under in the case of Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2428 in para 21 of the report at page 2429 : ”Sometimes motive plays an important role and becomes a compelling force to commit a crime and therefore motive behind the crime is a relevant factor for which evidence may be adduced. A motive is something which prompts a person to form an opinion or intention to do certain .;illegal act or even a legal act but with illegal means with a view to achieve that intention. In a case where there is clear proof of motive for the commission of the crime it affords added support to the finding of the Court that the accused was guilty for the offence charged with. But it has to be remembered that the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone who knows as to what circumstances prompted him to a certain course of action leading to the commission of the crime.” 33. It was further submitted by the learned amicus curiae that only one empty cartridge was found lying on the place of incident, which shows that only one fire was made and hence on this ground the appellant-accused Ram Adhar could not be convicted under Section 307, IPC. We find no force in this contention. On the basis of the reliable testimony of P.W. 1 and P.W. 2, it is fully proved that the appellant-accused Ram Adhar had fired from gun on the complainant and other witnesses who had challenged him. Firing by gun towards the complainant and witnesses is sufficient to constitute the offence of attempt to murder punishable under Section 307, IPC, even if no injury was caused to any person. Empty cartridges would be found on the place of incident only if the gun is unloaded after firing shot and if the gun is not loaded after firing shot, then the question of empty cartridge coming out from the gun does not arise. Availability of only one empty cartridge in present case on the place of incident is indicative of the fact that after firing shot, only one accused might have unloaded his gun with a view to load again for the purpose of firing another shot, but he might not have fired again and it was for this reason that only one empty cartridge was found lying on the place of incident. Therefore, the case of prosecution about firing shot by the appellant-accused Ram Adhar towards the complainant and witnesses by his gun is not falsified due to availability of only one empty cartridge on the place of incident. 34. Lastly, it was vehemently contended by the learned amicus curiae that conviction of the accused-appellant Ram Adhar under Section 302, IPC with the aid of Section 34, IPC is bad in law, because the appellant neither exhorted his father Mathura to kill the deceased nor he himself fired on him and hence merely due to his presence at the time of incidentIhe could not be convicted for the offence of committing murder of deceased Ram Kishore. The contention of the learned amicus curiae was that overt act is essential for the applicability of Section 34, IPC and if any accused does not play any active role in the incident, then applying Section 34, IPC he cannot be convicted for the offence/offences committed by his companions. The contention of the learned amicus curiae was that overt act is essential for the applicability of Section 34, IPC and if any accused does not play any active role in the incident, then applying Section 34, IPC he cannot be convicted for the offence/offences committed by his companions. This contention of the learned amicus curiae has got no force. It is well settled principle of law by a catena of decisions that for applying Section 34, IPC, overt act on the part of all the accused persons is not essential. 35. Before making comment on the aforesaid contention raised by the learned amicus curiae, it would be proper to refer Section 34, IPC which reads thus : “34. Acts done by several persons in furtherance of common intention.—When a criminaI act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.” 36. In the context of Section 34, I.P.C., the Hon’ble Apex Court has made the following observations in the case of Suresh and another v. State of U.P., 2001 SCC (Cri.) 661 in para 24 of the report at page 610 : “Looking at the first postulate pointed out above, the accused who is to be fastened with liability on the strength of Section 34, I.P.C. should have done some act which has nexus with the offence. Such an act need not be very substantial, it is enough that the act is only for guarding the scene of facilitating the crime. The act need not necessarily be overt, even if it is only a covert act it is enough, provided such a covert act is proved to have been done by the co-accused in furtherance of the common intention. Even an omission can, in certain circumstances, amount to an act. This is the purport of Section 32, I.P.C. So the act mentioned in Section 34, I.P.C. need not be an overt act, even an illegal omission to do a certain act in a certain situation can amount to an act, e.g. a co-accused, standing near the victim face to face saw an armed assailant nearing the victim from behind with a weapon to inflict a blow. The co-accused, who could have alerted the victim to move away to escape from the onslaught, deliberately refrained from doing so with the idea that the blow should fall on the victim. Such omission can also be termed as an act in a given situation. Hence an act, whether overt or covert, is indispensable to be done by a co-accused to be fastened with the liability under the section.” It is further held as under in para 40: “The word “act” used in Section 34 denotes a series of acts as a single act. What is required under law is that the accused persons sharing the common intention must be physically present at the scene of occurrence and be shown not to have dissuaded themselves from the intended criminal act for which they shared the common intention. Culpability under Section 34 cannot be excluded by mere distance from the scene of occurrence.” 37. In Barendra Kumar Ghosh v. King Emperor, AIR 1925 PC 1, the Judicial Committee dealt with the scope of Section 34 dealing with the acts done in furtherance of the common intention, making all equally liable for the results of all the acts of others. It was observed : “(T)he words of Section 34 are not to be eviscerated by reading them in this exceedingly limited sense. By Section 33 a criminal act in Section 34 includes a series of acts and, further, `act’ includes omission to act, for example, an omission to interfere in order to prevent a murder being done before one’s very eyes. By Section 37, when any offence is committed by means of several acts whoever intentionally cooperates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence. Even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things ‘they also serve who only stand and wait." 38. The classic case on the subject is the judgment of the Privy Council in Mahbub Shah v. Emperor, AIR 1945 PC 118, in which it was held : “Section 34 lays down a principle of joint liability in the doing of a criminal act. The Section does not say ‘the common intention of all’ nor does it say ‘an intention common to all’. The Section does not say ‘the common intention of all’ nor does it say ‘an intention common to all’. Under the section, the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. To invoke the aid of Section 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone.” 39. Approving the judgments of the Privy Council in Barendra Kumar Ghosh and Mahbub Shah cases, a three-Judge Bench of Hon’ble Apex Court in Pandurang v. State of Hyderabad, AIR 1955 SC 217, held that to attract the applicability of Section 34 of the Code, the prosecution is under an obligation to establish that before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of all. 40. In Shreekantiah Ramayya MunipaIIi v. State of Bombay, AIR 1955 SC 287 , the Hon’ble Apex Court made the following observations : “It is true there must be some sort of preliminary planning which may or may not be at the scene of the crime and which may have taken place long beforehand, but there must be added to it the element of physical presence at the scene of occurrence coupled with actual participation which, of course, can be of a passive character such as standing by a door, provided that is done with the intention of assisting in furtherance of the common intention of them all and there is a readiness to play his part in the pre-arranged plan when the time comes for him to act.” 41. The Hon’ble Apex Court again in Tukaram Ganpat Pandare v. State of Maharashtra, AIR 1974 SC 514 , reiterated that Section 34 lays down the rule of joint responsibility for criminal act performed by a plurality of persons and even mere distance from the scene of crime cannot exclude the culpability of the offence. The Hon’ble Apex Court again in Tukaram Ganpat Pandare v. State of Maharashtra, AIR 1974 SC 514 , reiterated that Section 34 lays down the rule of joint responsibility for criminal act performed by a plurality of persons and even mere distance from the scene of crime cannot exclude the culpability of the offence. “Criminal sharing, overt or covert, by active presence or by distant direction, making out a certain measure of jointness in the commission of the act is the essence of Section 34.” 42. In Rambilas Singh v. State of Bihar, AIR 1989 SC 1593 , the Hon’ble Apex Court held as under : “It is true that in order to convict persons vicariously under Section 34 or Section 149, IPC, it is not necessary to prove that each and every one of them had indulged in overt acts. Even so, there must be material to show that the overt act or acts of one or more of the accused was or were done in furtherance of the common intention of all the accused or in prosecution of the common object of the members of the unlawful assembly.” 43. Again a three-Judge Bench of Hon’ble Apex Court in State of U. P. v. Iftikhar Khan, 1973 SCC (Cri) 384, after relying upon a host of judgments of the Privy Council and Apex Court, held that for attracting Section 34, it is not necessary that any overt act must be done by a particular accused. The Section will be attracted if it is established that the criminal act has been done by one of the accused persons in furtherance of the common intention. If this is shown, the liability for the crime may be imposed on any one of the person in the same manner as if the act was done by him alone. (underlining is our). 44. In Krishnan v. State of Kerala, 1996 SCC (Cri) 1375, the Hon’ble Apex Court even assuming that one of the appellants had not caused the injury to the deceased, upheld his conviction under Sections 302/34 of the Penal Code holding : “Question is whether it is obligatory on the part of the prosecution to establish commission of overt act to press into service Section 34 of the Penal Code. It is no doubt true that the Court likes to know about an overt act to decide whether the person concerned had shared the common intention in question. Question is whether an overt act is always to be established? I am of the view that establishment of an overt act is not a requirement of law to allow Section 34 to operate inasmuch as this Section gets attracted when ‘a criminal act is done by several persons in furtherance of the common intention of all’ What has to be, therefore, established by the prosecution is that all the persons concerned had shared the common intention. Court’s mind regarding the sharing of common intention gets satisfied when an overt act is established qua each of the accused. But then, there may be a case where the proved facts would themselves speak of sharing of common intention : res ipsa loquitur.” 45. In Surendra Chauhan v. State of M. P., 2006 SCC (Cri) 772, the Hon’ble Apex Court has held that apart from the fact that there should be two or more accused, two factors must be established—(i) common intention, and (ii) participation of the accused in the commission of the offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34, I.P.C. will be attracted as essentially it involves vicarious liability. Referring to its earlier judgment, the Apex Court has held : “11. Under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other faciIitate the execution of the common design is itself tantamount to actual participation in the criminal act. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them.” 46. Reference in this regard may be made to the case of Anil Sharma and others v. State of Jharkhand, AIR 2004 SC 2294 ; Israr v. State of U.P., 2005 (51) ACC 481 (SC) and; Imtiaz and another v. State of U.P., 2007 (58) ACC 39 also. 47. Reference in this regard may be made to the case of Anil Sharma and others v. State of Jharkhand, AIR 2004 SC 2294 ; Israr v. State of U.P., 2005 (51) ACC 481 (SC) and; Imtiaz and another v. State of U.P., 2007 (58) ACC 39 also. 47. Keeping in view the law laid down in the cases referred to herein-above, the learned Court below did not commit any illegality in convicting the accused Ram Adhar under Section 302 read with Section 34 IPC, because after making pre-plan to commit the murder of Ram Kishore, he came with his father Mathura duly armed with a gun accompanied by two other persons who were having lathis and in furtherance of their common intention, the co-accused Mathura fired shot on the deceased thereby causing his instantaneous death and when they were challenged by the witnesses, the appellant Ram Adhar also fired a shot towards them from his gun. The injury caused to the deceased by Mathura was sufficient in the ordinary course of nature to cause death as opined by Dr. J.S. Rai (P.W. 3). Therefore, Clause ‘thirdly’ of Section 300, IPC would squarely be attracted in this case and since any of the Exceptions enumerated in Section 300, IPC is not applicable, hence the offence punishable under Section 302, IPC is clearly made out. Therefore, the conviction of the appellant Ram Adhar under Section 302 with the aid of Section 34, IPC and on other Courts is fully justified and legal. 48. For the reasons mentioned herein-above, there is no scope to make any interference by this Court in the impugned judgment. 49. Consequently, the appeal is dismissed. The conviction and sentence recorded by the trial Court vide impugned judgment against the accused-appellant Ram Adhar is affirmed. 50. If the appellant has filed bail bonds in pursuance of the order dated 16.9. 2008, then he would be sent to jail again by the trial Court concerned. After sending the appellant to jail, his sureties and bail bonds shall stand discharged. In case, the appellant is still in jail, then he shall be kept there to serve out the remaining sentence. 51. The office is directed to return lower Court record expeditiously along with a copy of this judgment for necessary action. Compliance report be submitted within two months by the concerned trial Court. ————