JUDGMENT (Delivered by Hon'ble Rakesh Tiwari, J.) 1. It appears from the record that as per prosecution story the accused-appellants Harjindra Singh and Vichitter Singh in criminal appeal no. 646 of 1986 and in duplicate criminal appeal no. 941 of 1986, were main shooters of deceased. It has come on record that both the accused persons after selling their property have allegedly gone to Punjab. However, from perusal of progress report which has been filed today in Court by learned A.G.A. it has been brought to the notice of the Court that accused-appellants are not traceable and their whereabouts are not known. 2. Sri J.S. Sengar who was appearing as counsel for accused-appellants Harjindra Singh and Vichitter Singh in the aforesaid criminal appeal is no more. In the circumstances, Sri Apul Mishra, appearing in the appeal on behalf of appellant no. 3, is appointed as Amicus Curiae to argue the case on behalf of accused appellants no. 1 and 2 also as he is well conversant with the case. 3. Both the criminal appeals have been filed challenging the judgment and order dated 31.1.1986 passed by Sessions Judge, Pilibhit in Sessions Trial No. 76 of 1985 (State Vs. Harjendra Singh & others) whereby accused-appellants have been sentenced to Rigorous Imprisonment for life under Section 302/34 IPC, for one year under Section 323/34 IPC, and under Section 394 IPC for ten years. Since both the criminal appeals are heard altogether, the same are being decided by a common judgment. 4. The impugned judgment is assailed on the grounds that conviction of appellants is bad in eye of law; that conviction is against the weight of evidence on record, and the sentence awarded is too severe in the facts and circumstances of the present case. 5. The facts culled out from the record, briefly are that in the night between 18/19.12.1984 at about 11.00 P.M. when Dr. Ram Kishore, Smt. Nirmala Devi his wife and their daughter, Km. Indu Bala were sleeping in their house in village-Dharmapur, P.S. Puranpur, Harjindra Singh son of Bhan Singh, Vichitter Singh son of Karam Singh and Baldev Singh alias Fauji son of Pritam Singh, all residents of village-Bahadpurpur, P.S. Puranpur, came there. Harjindra Singh who was patient of Dr. Ram Kishore (since deceased) called him to give some medicine. When Dr. Ram Kishore opened the door the accused persons entered in the room. Harjindra Singh who was patient of Dr. Ram Kishore (since deceased) called him to give some medicine. When Dr. Ram Kishore opened the door the accused persons entered in the room. Harjindra Singh and Vichitter Singh fired at the deceased whereas Baldev Singh is said to have picked-up the licensed gun of the deceased along with the bandolier of cartridges. When Smt. Nirmala Devi wife of deceased tried to take back the gun, Vichitter Singh gave a blow with butt of the gun on her head causing her to fall down in unconscious state. On hearing the sound of the gun shot, as well as hue and cry, Piarey Lal, Ram Pal and Jagdish came there along with torches in their hand and challenged the accused persons who escaped in the cover of darkness. 6. On the basis of written report, FIR was lodged on 19.12.1984 at 3.15 A.M., registering Case Crime No. 333 of 1984, under Section 302/394 IPC at P.S. Puranpur, District-Pilibhit against the accused persons. After investigation, police submitted charge sheet against all three accused persons who denied the charges and claimed to be tried. 7. The post mortem report dated 20.12.1984 of deceased Ram Kishore was proved by P.W. 5 Dr. K.P. Dubey who had conducted the post mortem. On external examination of the cadaver the doctor noted that the deceased was about 45 years of age who had died about one and half day earlier, he was of average built, rigor mortis was present in both the upper and lower limbs. The following ante-mortem injuries were found on the dead body of deceased:- 1.Fire-arm wound of entry 2 cm. x 2 cm. x cavity deep on the left side front of chest 1 cm. above the left nipple at 1 O'clock position. Blackening and tattooing present around the wound. Margina are inverted. 2.Fire-arm wound of entry 3.5 cm. x 3.5 cm. x cavity deep on the right side abdomen, lateral position 5 cm. above the right iliac crest. Blackening and tattooing absent. Margins are inverted. On internal examination, the doctor found semi-digested food material in the stomach. The cause of death was reported to be shock and haemorrhage produced by anti-mortem injuries. 8. In order to prove its case, the prosecution examined Ram Pal- P.W. 1, as an eye witness, Smt. Nirmala Rani-P.W. 2 widow of the deceased, Dr. Margins are inverted. On internal examination, the doctor found semi-digested food material in the stomach. The cause of death was reported to be shock and haemorrhage produced by anti-mortem injuries. 8. In order to prove its case, the prosecution examined Ram Pal- P.W. 1, as an eye witness, Smt. Nirmala Rani-P.W. 2 widow of the deceased, Dr. Ashok Sharma-P.W. 3 who proved the injury report of Smt. Nirmala Rani, S.I. Gajraj Singh-P.W.4 who proved written FIR, check report, panchayatnama etc. and Dr. K.P. Dubey-P.W. 5 who proved the post mortem report of deceased. 9. From the evidence adduced in the case, the trial court came to the conclusion that statement of P.W. 2 Nirmala Rani to be fully believable and she was a reliable witness; that even if P.W. 1 Ram Pal was not present, or his presence is found to be doubtful, or he could not have seen or recognized the accused persons even then in these circumstances, there is no reason to disbelieve the statement of Nirmala Rani; that all the facts and circumstances discussed in the judgment clearly show that the accused had come with a pre-meditated plan to kill the deceased. They had intentionally caused his death and had also looted his gun along with belt of cartridges just in order to satisfy their vengeance. Accordingly, the court below convicted and sentenced the accused-appellants as stated above. Aggrieved appellants have preferred these appeals against the judgment impugned. 10. Sri Apul Mishra, learned counsel for the appellants submits that so far as accused-appellants no. 1 and 2 are concerned, it cannot be said that they had fired upon the deceased. According to him the killing of Ram Kishore was in the circumstance developed as the aftermath of the killing of the then Prime Minister late Smt. Indira Gandhi by her Sikh body guards. He further submits that from the record it is clearly evident that Ram Kishore had not helped the Sikh community when their Gurudwara was being burnt by rioters. However, the deceased had healthy relations with Sikh community and he could have been killed by some persons who had grudge against him for not helping their community. He has contended that it is not known as to who had fired the fatal shot upon Ram Kishore as his wife Smt. Nirmala Rani had fainted and was unable to see the incident. He has contended that it is not known as to who had fired the fatal shot upon Ram Kishore as his wife Smt. Nirmala Rani had fainted and was unable to see the incident. So far as the case of accused-appellant Baldev Singh in criminal appeal no. 385 of 1986 is concerned, it has been submitted by learned counsel that his role is only that of exhortation and he has not used any firearm in the incident, therefore, his case stands on different footing than that of appellants Harjindra Singh and Vichitter Singh for having not participating in alleged act of firing. 11. In support of his contention, Sri Mishra has relied upon the case of Zahoor vs. State of U.P., AIR (SC) 2011 page 2501 as well as Hem Raj & others Vs. Raja Ram & others, (2004) 9 SCC 18 on the point of exhortation. 12. Learned A.G.A. has supported the judgment of the court below by submitting that motive and manner in which offence has been committed is clear from the evidence of P.W. 1 and P.W. 2 who are the eye witnesses of the incident. They have fully proved the case of the prosecution and as such finding in the judgment impugned may not be interfered in appeal. 13. Having gone through the facts and circumstances of the case and the evidence on record, we are of the considered opinion that there is no matter of doubt that all three accused persons had come to the house of Dr. Ram Kishore (since deceased) armed with firearms. There was some anger in their mind against the deceased who though had gun in his house had not helped the Sardars in their area when their Gurudwara was burnt by mob on assassination of Smt. Indira Gandhi the then Prime Minister of India. 14. The accused persons armed with firearms came to the house of Dr. Ram Kishore (since deceased) in the night between 18/19.12.1984 at about 11.00 P.M. and asked him to open the door on the pretext of providing them medicine. Since accused persons were his patients and familiar to Dr. Ram Kishore, he opened the door and proceeded for providing medicine in the light of lamp. Upon entering the house, Baldev Singh who was also armed with katta called his companion to kill Dr. Since accused persons were his patients and familiar to Dr. Ram Kishore, he opened the door and proceeded for providing medicine in the light of lamp. Upon entering the house, Baldev Singh who was also armed with katta called his companion to kill Dr. Ram Kishore who was busy in preparing medicine by stating that they cannot get such an opportunity. It was then the accused appellants fired upon him which was witnessed by his wife Smt. Nirmala Rani, P.W. 1. She recognized all three accused persons as they were well known to her. When smt. Nirmala Rani made an attempt to take back the gun from Baldev Singh, she was given blow by butt of gun of accused Vichitter Singh who after sustaining injury fell down in an unconscious condition. The FIR version regarding manner in which incident is said to have taken place clearly establishes that wife of deceased had fainted on receiving injury by butt after witnessing the entering of the accused armed with guns and murder of her husband, therefore, argument of learned counsel for the accused-appellants Harjindra Singh and Vichitter Singh that she could not have seen anything being unconscious does not stand to reason. 15. So far as the culpability of accused-appellant Baldev Singh is concerned, we find that all three accused persons had come armed with firearms with common object and intention of committing the murder of Dr. Ram Kishore. For applicability of Section 34 IPC, it does not matter as to who actually shot fire. It also does not matter that accused-appellant Baldev Singh had not fired the shot. He had come armed with firearm along with other accused with same intention and object of murder of Dr. Ram Kishore and made him to open the door of the house at about 11.00 P.M. on the pretext of immediate requirement of medicine. Since the accused persons were diabetic patients and were under the treatment of Dr. Ram Kishore they were priorly known to him, hence he took them in the house and started preparing medicine in the light of the lamp. He was killed by the accused persons in the manner as stated above, whereupon Baldev Singh started to take away the licensed gun along with belt of cartridges of the deceased. Ram Kishore they were priorly known to him, hence he took them in the house and started preparing medicine in the light of the lamp. He was killed by the accused persons in the manner as stated above, whereupon Baldev Singh started to take away the licensed gun along with belt of cartridges of the deceased. She then fainted upon being hit by Harjindra Singh in the process of resisting Baldev Singh from taking away the gun and the cartridges. Thereafter, all three accused persons immediately after committing the murder of Dr. Ram Kishore, were seen coming out from the house by Ram Pal- P.W. 1. 16. The case in hand is not a case of circumstantial evidence. There are ocular witnesses to the actual commission of the crime and also to the fleeing of accused from the place of occurrence. There was source of light and the accused being neighbours and patients of the deceased, there is no chance of miss-identity of accused persons as they were also well acquainted to the wife of deceased. 17. Thus, in view of what have been stated above, we are of the considered opinion that guilt of the accused persons is proved beyond doubt on the basis of evidence adduced in the case. The appellants have failed to make out any case which may cause any reasonable doubt in our mind to the effect that the appellants had not committed the murder or that they have been falsely implicated or even that incident has not taken place in the manner stated by the prosecution. The aforesaid two case laws cited by learned counsel for the appellants are not applicable in the facts and circumstances of the present case. 18. In the circumstances, we affirm the view taken by the court below as there is no illegality or infirmity in the impugned judgment and order dated 31.01.1986 passed by it. Accordingly, the order of conviction and sentence of the court below is confirmed and the appeals stand dismissed. 19. Sri Apul Mishra, Advocate, appointed as Amicus Curiae, would get Rs.2,100/- as his remuneration fee within two months. 20. Let a copy of this order be certified to the concerned Chief Judicial Magistrate for immediate compliance. ——————