JUDGMENT Arun Tandon and Akhtar Husain Khan, JJ. 1. Heard Sri N.I. Jafari, Advocate on behalf of the appellants and learned Additional Government Advocate for the State-respondent. This criminal appeal is directed against the judgment and order passed by the IIIrd Additional Sessions Judge, Rampur dated 29th March, 1989 in Sessions Trial No. 45 of 1986 being Crime No. 563 of 1985, Police Station Civil Lines, District Rampur. 2. Under the said judgment and order of the Sessions Judge, all the four appellants, namely, Jagdish, Hori, Nathu and Pooran have been convicted of an offence' under section 302 read with section 34 of the Indian Penal Code for having committed murder of deceased Babu Ram in furtherance of their common intention to cause death by inflicting injuries with country-made pistols, 'Tabal' and 'lathi'. They have also been convicted of an offence under section 307 read with section 34 of the Indian Penal Code for having attempted murder of Khem Charan in furtherance of common intention by causing injuries with country-made pistol, 'tabal' and 'lathi'. For the said offence, they have been sentenced to imprisonment for life punishable under section302 read with section 34 of the Indian Penal Code and for the offence under section 307 read with section 34 of the Indian Penal Code, to undergo rigorous imprisonment for a period of 4 years. 3. The case of the prosecution, as reflected from the records of the present appeal, is as follows: 4. The first informant, Kunwar Sain, son of deceased Babu Ram lodged a first information report with the Police Station Civil Lines, District Rampur on 28th December, 1985 at 11: 30 p.m. In the first information report, it was stated that the informant along with his father, Babu Ram was proceeding towards his residence after discharging their duties at 10: 30 p.m. at Raza Textiles, on 28th December, 1985, Khem Charan and Kishan Lal of their village Nabi Ganj were also accompanying them. Khem Charan and Kishan Lal were similarly employed in Raza Textiles. At about 11: 00 p.m., when they had reached near the field of one Surat Singh, village Nabi Ganj, the accused Jagdish, Hori, Nathu and Pooran emerged from behind the bush on the side of the road near the tree of 'Beri'. Khem Charan and Kishan Lal were similarly employed in Raza Textiles. At about 11: 00 p.m., when they had reached near the field of one Surat Singh, village Nabi Ganj, the accused Jagdish, Hori, Nathu and Pooran emerged from behind the bush on the side of the road near the tree of 'Beri'. The accused Jagdish and Nathu were armed with country-made pistols, while the accused Hori was carrying a 'Lathi' and the accused Pooran was carrying a 'Tabal'. All the four accused attacked Babu Ram and Khem Charan. Nathu fired upon Babu Ram from his country-made pistol, while Jagdish fired upon Khem Charan from his country-made pistol. The accused Hori and Pooran assaulted them with 'Lathi' and 'Tabal' respectively. In the first information report, it was stated that it was a moon-light night. The informant Kunwar Sain and Kishan Lal were also carrying torches. They could see all the accused and the assault was also witnessed by the injured Khem Charan in the moon light as well as in the torch light. The deceased Babu Ram and the injured Khem Charan were about 5-6 paces ahead of Kunwar Sain and Kishan Lal. The first informant Kunwar Sain and Kishan Lal raised alarm. On hearing the alarm, Brijwasi and Badri, who were also moving to the village and were about 20-25 paces behind Babu Ram and Khem Charan, reached the spot. By that time, the accused ran-away towards east from the spot after firing shots with their country-made pistol. It was also stated that Babu Ram after being injured ran towards south and Khem Charan ran towards east. After few paces Babu Ram fell down and expired on the field of Surat Singh, while Khem Charan fell unconscious and lay in the field of one Nauni Singh. The first information report was lodged within half an hour of the incident by the informant Kunwar Sain orally, which was recorded by the Dharam Veer Singh, Inspector-in-charge marked as Exhibit Ka-1. Distance between the police station and the place of incident was 1.25 kilometers. The first information report was registered under sections 3/2/307 of the Indian Penal Code at Police Station Civil Lines, District Rampur being Crime No. 563 of 1985. 5. Distance between the police station and the place of incident was 1.25 kilometers. The first information report was registered under sections 3/2/307 of the Indian Penal Code at Police Station Civil Lines, District Rampur being Crime No. 563 of 1985. 5. After recording the first information report, Dharam Veer Singh, Inspector-in-charge came to the place of occurrence along with informant Kunwar Sain in a Police Jeep within a period of 7-8 minutes. After reaching the place of occurrence, the Investigating Officer recorded statements of the witnesses, namely, Kishan Lal, Lal Singh, Badri Singh and made spot inspection of the place of occurrence. He prepared a site-plan marked as Exhibit Ka-2. Two empty shells, which were lying on the spot, were taken in possession; a recovery memo was prepared marked as Exhibit Ka-3. The plain and blood stained earth from the place of occurrence was also collected and recovery memo was prepared marked as Exhibit Ka-4. He took the torches in his possession and thereafter gave those torches in the Supurdagi of Kishan Lal and Kunwar Sain marked as Exhibit Ka-5. The inquest report was however, prepared in the morning on 29th December, 1985 at 7: 00 a.m. The Panchayatnama was got prepared by Sub-Inspector K.P. Sharma marked as Exhibit Ka-6. After preparing the relevant papers, the dead body of the deceased Babu Ram was sent for post-mortem. Post-mortem of the dead body of Babu Ram was performed on 30th December, 1985 at 11: 00 a.m. After completing the investigation, a charge-sheet against all the accused, namely, Jagdish, Hori, Nathu and Pooran, was filed under section 302/307 of the Indian Penal Code read with section 34 of the Indian Penal Code. 6. The post mortem report was accepted and was not challenged, therefore, the Doctor performing the post mortem of the dead body of the deceased Babu Ram was not examined. 7. The injured Khem Charan was examined by Dr. R.L. Saxena while X-ray was conducted by Dr. G.K. Jain. 8. The case of the accused was committed to the Court of Sessions. 9. The motive qua the acts of the accused was also specifically narrated both in the first information report as well as in the oral testimony of the witnesses, as follows: 10. R.L. Saxena while X-ray was conducted by Dr. G.K. Jain. 8. The case of the accused was committed to the Court of Sessions. 9. The motive qua the acts of the accused was also specifically narrated both in the first information report as well as in the oral testimony of the witnesses, as follows: 10. Babu Ram the deceased, Kanhai, Nauni Singh and Amar Singh were named as accused in the first information report lodged by Pooran Singh and his son Mahi Lal in respect of the assault on the children of Pooran Singh under section 307 of the Indian Penal Code. Babu Ram the deceased was confined to prison for nearly 21 days and charge under section 307 of the Indian Penal Code was framed against him. Babu Ram had been released on bail few days ago before the date of present incident. Because of the said alleged incident, the accused had an ill-will against the deceased Babu Ram and this was the motive for causing death. 11. The prosecution in support of its case examined 8 witnesses. 12. P.W. -1, first informant Kaunwar Sain son of deceased Babu Ram gave an eye-witnessed account of the incident and proved the contents of the first information report marked as Exhibit-Ka 1. 13. P.W.-2 Khem Charan, the injured, also gave the eye-witnessed account of the incident. 14. P.W. -3 Kishan Lal, who after making a statement in respect of the incident, subsequently stated that he could not identify any of the assailants. This witness was declared hostile by the prosecution. 15. P.W.-4 Badri, one of the eyewitness of the incident and who was at a distance of 20 to 25 paces behind Babu Ram and Khem Charan at the time of incident also supported the prosecution story. 16. P.W.-5 Brij Pal Singh, who was also with Badri at the time of incident, gave an account of the incident, as was seen by him, which supported the prosecution story. 17. Investigating Officer Dharm Veer Singh Yadav was examined as P.W. 6. 16. P.W.-5 Brij Pal Singh, who was also with Badri at the time of incident, gave an account of the incident, as was seen by him, which supported the prosecution story. 17. Investigating Officer Dharm Veer Singh Yadav was examined as P.W. 6. He disclosed the steps taken for investigation and proved the site plan, recovery memo of the empty cartridges, recovery memo of the blood stained and plain earth, supurdagi-nama of the torches, the panchayat-nama, the chalan of the dead body marked as Exhibit Ka-7, the figure of he dead body marked as Exhibit Ka-8, letter written to the Chief Medical Officer marked as Exhibit Ka-9, letter written to the RI marked as Exhibit Ka-10, the sample of the seal marked as Exhibit Ka-11, charge-sheet marked as Exhibit Ka-12 etc. He also proved General Diary Entries marked as Exhibit Ka-13. The Investigating Officer also proved the materials collected on the spot, namely, blood stained earth, empty cartridges, blood stained clothes marked as Exhibits 1 to 7. 18. P.W.-8 Dr. R.N. Saxena, who had examined the injured Khem Charan, proved his medical examination report and explained the injuries sustained by Khem Charan. The injury report and the supplementary injury report given by P.W. 9 were marked as Exhibits Ka-14 and Ka-15. 19. The injuries found on the body of Khem Charan on medical examination conducted on 29th December, 1985 at 12: 35 a.m. were reported to be as follows: "1. Incised wound 6 cm. x 1 cm. x bone deep on the left side of the scull 8 cm above the ear. 2. Lacerated wound 3 cm. x 2 cm. x not probed without presence of blackening, tattooing or charring on the left hand side of the buttocks 8 cm. below the iliac crest. 3. Multiple gun shot wounds in an area of 22 cm. x 5 cm. on the front side of the right arm and on the back side of the palm, each of the wound being 0.25 cm. x 0.25 cm. 4. Lacerated wound 0.5 cm. x 0.5 cm. x skin deep on the left hand side of the chest 15 cm below the nipple." 20. For those injuries being kept under observations, the Dr. has advised for X-ray of hip, the right fore-arm and palm and chest. 21. x 0.25 cm. 4. Lacerated wound 0.5 cm. x 0.5 cm. x skin deep on the left hand side of the chest 15 cm below the nipple." 20. For those injuries being kept under observations, the Dr. has advised for X-ray of hip, the right fore-arm and palm and chest. 21. On examination of same injured Khem Charan conducted at 02: 00 p.m., following additional injuries were found on his person: "1. Incised wound 5 cm. x 0.5 cm. x muscle deep on the left hand side of the waist 6 cm. below the shoulder. 2. Multiple contusions in an area of 10 cm. x 8 cm. on the left hand side of the waist and chest, 6 cm. below the anterior angle of scapula." 22. P.W.-8 Dr. G.K. Jain who had conducted the X-ray of the body of injured Khem Charan proved the X-ray Plates material marked as Exhibits- 8, 9, 10 and 11 and the X-ray report marked as Exhibit Ka-17. 23. All the witnesses were cross-examined by the accused. The genuineness of the post mortem report of the body of the deceased Babu Ram was admitted by the accused before the Trial Court and it was also submitted in writing, recorded on the order-sheet of the Trial Court that there was no necessity for cross-examination of the Doctor who performed the post-mortem of the body of the deceased Babu Ram and who submitted post-mortem report marked as Exhibit Ka-16. 24. On the post-mortem examination of the dead body of the deceased Babu Ram following ante mortem injuries were found on his person: "1. Incised wound 2 cm. x 0.5 cm. x bone deep on the left side forehead 3 cm above left eye brow. 2. Incised Wound 2 cm. x 2 cm. x cavity deepen the left ear. 3. Incised wound 1 cm. x 0.5 cm. x muscle deep on the left cheek. 4. Incised wound 3 cm. x 1 cm. x bone deep on the left chin. Underneath the injury left is fractured. 5. Incised wound 4 cm. x 0.5 cm. x bone deep near left ear. 6. Multiple gun shots wounds of entry in an area of 6 cm. x 6 cm. on the front of left knee. Each measuring 0.25 cm. x 0.25 cm. x bone deep. No blackening, carrying and tattooing. Margins are inverted and lacerated. 5. Incised wound 4 cm. x 0.5 cm. x bone deep near left ear. 6. Multiple gun shots wounds of entry in an area of 6 cm. x 6 cm. on the front of left knee. Each measuring 0.25 cm. x 0.25 cm. x bone deep. No blackening, carrying and tattooing. Margins are inverted and lacerated. Nine small pellets are recovered and sealed." 25. All the accused were examined under section 313 of the Code of Criminal Procedure. The accused denied the charges and asked for trial. They stated that they have been falsely implicated. Accused Pooran also set up a cross-case and stated that he had been badly beaten by the complainant party earlier and his arm was broken. He was not in a position to deal with the 'Tabal' or 'lathi'. In support of his injuries he produced Dr. G.K. Jain, who had conducted the medical examination of Pooran and had submitted the injury report dated 7th January, 1985. He proved the same. The accused also filed a certified copy of the judgment dated 24th October, 1986 passed by the 2nd Additional Sessions Judge, Rampur in the case of State v. Kanhai and others. 26. The Trial Court after considering the averments made in the first information report and the eye-witness account of the first informant Kunwar Sain (P.W.-1), injured witness Khem Charan (P.W.-2) as well as the eyewitness account of Badri and Brij Pal Singh, found that the prosecution story was well corroborated by the said witnesses. The Trial Court found that Badri was an independent witness and the evidence of the witnesses did inspire confidence in the mind of the Court. The Trial Court found that not only first information report was lodged within half an hour of the incident on 28th December, 1985, the prosecution story was fully established by the eye-witnesses account of the first informant, Kunwar Sain, injured witness Khem Charan and other two witnesses Badri and Brij Pal Singh (P.W. 1 to P.W. 4). Their ocular evidence was well supported by the medical evidence. It has therefore, been held that the prosecution has been able to bring home the charge with certainty against the accused. 27. The cross-case pleaded by the accused Pooran in defence could not be established by any material evidence. Their ocular evidence was well supported by the medical evidence. It has therefore, been held that the prosecution has been able to bring home the charge with certainty against the accused. 27. The cross-case pleaded by the accused Pooran in defence could not be established by any material evidence. Accordingly, the Trial Court has proceeded to convict the accused of an offence under section 302 read with section 34 of the Indian Penal Code and sentenced them to life imprisonment. They have also been convicted of an offence under section 307 read with section 34 of the Indian Penal Code and sentenced them to four years as noticed above. 28. Learned Counsel for the appellants challenging the findings recorded by the Trial Court submitted before us that the incident is alleged to have taken place in the night during winter season at 11: 00 p.m. The prosecution witnesses P.W. 4 and P.W. 5 were admittedly at some distance and therefore, they could not with certainty deposed as to who actually had inflicted the injury. It has been further stated that the P.W. 1 and P.W. 2 are interested witnesses and therefore, their testimony would not be beyond reasonable doubt and such evidence of interested witnesses could not be the basis for recording a finding that the charge has been brought home against the accused with certainty. In support of such submission, it has also been stated that there was no motive for the accused to have assaulted Babu Ram and therefore, also the entire prosecution case must fall. 29. Learned Counsel for the appellant also contended that from the postmortem report it is apparent that the deceased had not received any 'Lathi' injuries and therefore, conviction of Hori, who is alleged to be carrying a' Lathi was unsustainable. 30. Learned Counsel for the appellant placed reliance upon the judgment of the Apex Court in the case of Kartar Singh and others v. State of Punjab 1996 (33) ACC 267 (SC). 31. Learned Additional Government Advocate on behalf of the State disputes the correctness of the contentions raised on behalf of the appellant. He submits that in the facts of the case the first information report was lodged promptly. The prosecution story, as narrated in the first information report, was well supported by eye-witnesses account as well as by the medical evidence. Learned Additional Government Advocate on behalf of the State disputes the correctness of the contentions raised on behalf of the appellant. He submits that in the facts of the case the first information report was lodged promptly. The prosecution story, as narrated in the first information report, was well supported by eye-witnesses account as well as by the medical evidence. The case of the prosecution was well established by reliable ocular evidence of eye-witnesses/injured witnesses, as well as by the medical evidence. The Trial Court has rightly held that prosecution has been able to establish the charge with certainty. In support of his plea, he has placed reliance upon the judgment of the Apex Court in the case of Lokesh Shivakumar v. State of Karnataka 2012 (111) AIC 120 (SC) : 2012 (76) ACC 815 (SC). 32. We have considered the submissions made by the learned Counsel for the parties and have examined the records of the present appeal. 33. In our opinion none of the grounds raised on behalf of the appellants have any substance. The prosecution witnesses had specifically stated in their testimony that they had seen the accused in the moon light as also with the light of the torches. The Trial Court has recorded that night of 28th December, 1985 was a full moon night. Even otherwise, source of light through torch was well established from the statements of the prosecution witnesses and the recovery of torches by the Investigating Officer on spot. 34. It may also be recorded that the parties were well known to each other and therefore, identification of the accused in the facts of the case with the source of the lights as disclosed cannot be faulted with. 35. The Trial Court had specifically held that evidence of four witnesses examined by the prosecution even after leaving out the evidence of P.W.-3, who had turned hostile is a quite natural and amongst them, one was injured witness. Testimony of injured witness is entitled to an higher value. The Trial Court has also recorded a categorical finding that after consideration of evidence brought on record that there was no material contradiction in the oral evidence of the witnesses and the medical evidence. Testimony of injured witness is entitled to an higher value. The Trial Court has also recorded a categorical finding that after consideration of evidence brought on record that there was no material contradiction in the oral evidence of the witnesses and the medical evidence. The Trial Court has further recorded that from the medical reports of Khem Charan and according to the postmortem report of the deceased Babu Ram, it is clear that Khem Charan received two incised wounds, two lacerated wounds and a contusion in an area of 10 cm. x 8 cm. on the left hand side of the waist and chest 6 cm below the anterior angle of scopula and the deceased Babu Ram received 5 incised wounds and a multiple gun shot wound of entry in an area of 6 cm. x 6 cm. on the front of left knee. On the person of Khem Charan, there were two gun shot injuries, one was on the buttocks and the other was on the front side of the right arm and on the back side of the palm. However, a pellet injury was there on the left hand side of the chest also. Apart from these, there was one incised wound and one injury of multiple contusion in an area of 10 cm. x 8 cm. on the left hand side of the waist and chest. According to the prosecution story two shots were fired at Khem Charan and one hit him on his hand when he extended his hands to stop the gun being fired and other injury was received when the shot was fired from behind when he was running away. The gun shot injuries stated in the medical reports fully tally with the gun shot injuries received by Khem Charan according to the oral evidence led by the prosecution. Similarly since the 'Tabal' was used there was every probability of receiving one incised wound. The incised wound explains the injury having been caused through 'Tabal'. The multiple contusions explain the 'lathi' blows given to Khem Charan on his back. 36. Such finding clearly demolishes the case of the appellant that no injury has been inflicted by 'lathi'. 37. Similarly since the 'Tabal' was used there was every probability of receiving one incised wound. The incised wound explains the injury having been caused through 'Tabal'. The multiple contusions explain the 'lathi' blows given to Khem Charan on his back. 36. Such finding clearly demolishes the case of the appellant that no injury has been inflicted by 'lathi'. 37. So far as the issue of motive is concerned, the Trial Court has rightly recorded that as per the compliant of the accused of earlier incident, the deceased was arrested and had been released on bail a few days ago. The Trial Court has held that previous enmity between the accused and the present complaint was admitted. Old enmity is double edged, it can give a cause to the complainant party to falsely implicate the accused, it can also motivate the accused to commit the offence on the person of the complainant party. 38. In our opinion, issue of prosecution looses all significance once the prosecution case is fully established by reliable ocular evidence coupled with medical evidence, as has been laid down by the Apex Court in the case of Lokesh Shivakumar (Supra). 39. The second ground pressed by the learned Counsel for the appellant must also fail. 40. The counter plea raised on behalf of the accused Pooran that he was not in a position to carry any arm on the date of incident because injuries suffered by him, has not been accepted by the Trial Court after considering the cross-examination of Dr. G.K. Jain, who admitted that the accused could carry a 'Tabal' or 'lathi' on the date of incident. The Trial Court has recorded that the incident in question had taken place after one and half month from the date on which Pooran suffered injuries in his left and right hand. 41. In our opinion, the Trial Court has rightly held that the prosecution has been able to bring home the charge against the accused with certainty and has therefore, rightly convicted the accused under sections 302 read with section 34 of the Indian Penal Code as also under section 307 read with section 34 of the Indian Penal Code and has rightly sentenced the convict. 42. 42. We may also consider the last submission made on behalf of the appellant that the injuries which were inflicted upon the deceased Babu Ram or injured Khem Charan was not intended to cause death and therefore, the accused could, at best, be convicted of an offence under sections 300, 326and section 149 of the Indian Penal Code. For the proposition, learned Counsel for the appellant has placed reliance upon the judgment in the case of Kartar Singh (supra). 43. We may record that the said judgment is clearly distinguishable in the facts of the case, inasmuch as the Apex Court in that case had examined the injuries, which had been suffered by the deceased of that case and thereafter it had drawn its conclusion. The judgment in the case of Kartar Singh (supra) has no application in the facts of the case. 44. In view of the aforesaid, we find no good ground to interfere with the judgment and order of the Trial Court. 45. The conviction of the appellants, namely, Jagdish, Hori, Nathu and Pooran for an offence under section 302 read with section 34 of the Indian Penal Code for having committed murder of deceased Babu Ram as well as their conviction of an offence under section 307 read with section 34 of the Indian Penal Code for having attempted murder of Khem Charan as also the sentence, which has been inflicted for the offence so committed, is affirmed. 46. The appeal lacks merit and is accordingly dismissed. 47. The appellants, namely, Jagdish, Hori, Nathu and Pooran are on bail, their bail bonds are cancelled. Sureties are discharged. They shall be taken into custody forthwith to serve out the sentence, so awarded to him by the Trial Court. The Chief Judicial Magistrate, Rampur may ensure compliance of the judgment delivered by this Court today.