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Allahabad High Court · body

2015 DIGILAW 1978 (ALL)

Raja Ram v. State of U. P.

2015-07-20

OM PRAKASH VII, SHASHI KANT GUPTA

body2015
JUDGMENT (Om Prakash-VII, J.) 1. This Criminal Appeal has been preferred by the appellants Raja Ram and Ram Bahor against the judgment and order dated 8.12.1982 passed by the VIIth Additional Sessions Judge, Allahabad in S.T. No. 139 of 1982 (State Vs. Raja Ram and another) under Section 302 I.P.C., Police Station Koraon, district Allahabad whereby the appellants Raja Ram and Ram Bahor have been convicted and sentenced for an offence under Section 302 IPC to undergo imprisonment for life. 2. Prosecution story in nut shell is as follows : 3. Written report dated 29.1.1982 Ex. Ka-2 was submitted by informant Vijay Shankar at Police Station Koraon mentioning therein that on 29.1.1982 at about 5 P.M. his father Badri Prasad (deceased) son of Shitla Deen and his brother Daya Shankar (P.W.-1) after removing the rain water from their 45 bighas field were returning back home. His brother Daya Shankar was behind him. As soon as Badri Prasad reached canal patri after crossing canal the accused who were hidden there came out and started firing with their guns and country made pistol from west side. On seeing that Badri Prasad fell down, Daya Shankar rushed up shouting. At the same time, witnesses Lalta Prasad and Puroshottam Tiwari, who were working in their fields, also rushed up to the scene and reached there. On the alarm of the witnesses, accused fled away towards the canal patri. A bag containing hand grenades and an empty cartridge were found lying on the spot. When witnesses and the informant's brother reached near the deceased they found him dead. Apart from the witnesses, other persons also reached there and saw the incident and identified the accused persons. Dead body was lying on the spot. There was some enmity between the deceased and the accused regarding help extended to Mst. Durghatiya and for this reason they had murdered his father. 4. On the basis of the written report (Ext. Ka-2) chik F.I.R. (Ext. Ka-17) was registered at police station concerned at crime no. 480 of 1982 under Section 302 IPC on 29.1.1982 at 8.15 P.M. G. D. Entry (Ext. Ka 18 and 19) were also made. 5. Investigation was entrusted to Sukkhan Ram Sonkar, S.O., Koraon. 4. On the basis of the written report (Ext. Ka-2) chik F.I.R. (Ext. Ka-17) was registered at police station concerned at crime no. 480 of 1982 under Section 302 IPC on 29.1.1982 at 8.15 P.M. G. D. Entry (Ext. Ka 18 and 19) were also made. 5. Investigation was entrusted to Sukkhan Ram Sonkar, S.O., Koraon. After registering the case P.W.-7 Constable Bal Bahadur Singh along with Constable Hare Krishan had reached on the spot in the night itself and remained present at the spot till arrival of the Investigating Officer. The investigating officer proceeded to the place of occurrence on the next morning. He collected blood stained earth (Material Ext.-6); plain earth (Material Ext.-7) from the spot and prepared their fard (Ext. Ka-3). He took bomb (Material Ext. -8); and a bag (Material Ext. -9) in his custody and prepared their fard (Ext.Ka-5). He took Rs. 52.50 paise, a dibia (small box) of surti (tobacco) and one pair of shoes from the side of dead body and prepared their fard (Ext. Ka-6). Investigating Officer had also taken one empty cartridge of 12 Bore, tikali and some pellets from the place of occurrence and prepared memo Ext. Ka-4. He prepared inquest report (Ext. Ka-1), photo dead body (lash) (Ext. Ka-7) sample seal (Ext. Ka-8), chalan dead body(lash) (Ext. Ka-9) and site plan (Ext. Ka-10). Dead body was dispatched for the post mortem examination. He also made search of accused and prepared fard (Ext. Ka-11 to Ka-13). He made attachment of the property of the accused in compliance of process under Section 82 -83 Cr. P.C. and prepared the fard (Ext. Ka-14 and Ka-15). After completing the investigation the Investigating Officer submitted charge sheet (Ext. Ka-16). 6. Post mortem on the dead body of the deceased was conducted on 31.1.1982 at 2.30 P.M. and post mortem report (Ext. Ka-20) was prepared. The doctor observed as under : 7. Rigor mortis passed off from both limbs. Probable time after the death was two days. 8. Following ante mortem injuries were found on the body of the deceased : (i) Gun shot wound 8" x 6" on whole of the skull. All the bones of skull fractured. Brain matter lacerated and coming out of the wound. (ii) Gun shot wound 3" x 2" x body deep on the back of chest over right scapular region. 9. Following ante mortem injuries were found on the body of the deceased : (i) Gun shot wound 8" x 6" on whole of the skull. All the bones of skull fractured. Brain matter lacerated and coming out of the wound. (ii) Gun shot wound 3" x 2" x body deep on the back of chest over right scapular region. 9. On internal examination scalp was found lacerated except temporal bones. Memberance and brain lacerated. Base of skull lacerated. Third, fourth and fifth ribs were found fractured. Right scapula, right pleura and right lung were ruptured. Thorasic cavity was found full of blood. As per doctor cause of death was due to shock and hemorrhage as a result of ante mortem injuries. 10. Concerned Magistrate took the cognizance on the charge sheet, the case was committed to the court of sessions for trial. Accused appeared and charge under Section 302 IPC was framed against them. Accused pleaded not guilty and claimed their trial. 11. In order to prove its case the prosecution examined P.W.-1 Daya Shankar, who was an eye witness, P.W.-2 Bala Ram was a witness of inquest and proved the same; P.W.-3 Purshottam Tiwari and P.W.-4 Lalta Prasad, who were also the eye witnesses of the occurrence, supported the prosecution case; P.W.-5 Vijai Shankar, who is the son of deceased and first informant; P.W.-6 S. O. Sukhan Ram Sonkar Investigating Officer of the case; P.W-7 Constable Bal Bahadur Singh who reached the spot in the night of incident itself before reaching of the Investigating Officer; P.W.-8 Krishna Kant, witness of recovery of plain earth and blood stained earth and P.W.-9 Dr. Iqbal Husain, who conducted the post mortem on the body of the deceased. 12. Prosecution also relied upon the report of Chemical Examiner (Ext. Ka-21); report of Serologist (Ext. Ka-22); copy of statement of Vishwanath (Ext. Ka-23); copy of statement of Raja Ram (Ext. Ka24) and copy of order of A.D.M., Allahabad (Ext. Ka-25). 13. After closer of the prosecution evidence statement of both the appellants were recorded under Section 313 Cr. P.C. 14. In their statement the accused pleaded not guilty and stated that they have been falsely implicated in this case due to enmity. Ka-23); copy of statement of Raja Ram (Ext. Ka24) and copy of order of A.D.M., Allahabad (Ext. Ka-25). 13. After closer of the prosecution evidence statement of both the appellants were recorded under Section 313 Cr. P.C. 14. In their statement the accused pleaded not guilty and stated that they have been falsely implicated in this case due to enmity. Accused Ram Bahor set up a case that the witnesses were inimical to him, accused Raja Ram claimed that the alleged occurrence might have taken place at some other place and none had seen the occurrence and accused appellants were falsely implicated in this case. 15. No oral evidence in defence was advanced. However, they filed the following documents : (i) Copy of order of consolidation court in case no. 138 (Ext. Kha-4). (ii) Copy of charge sheet of crime case no. 25 under Section 382 IPC (Ext. Kha-5). (iii) Copy of Chalani report of case no. 201 under Section 107/116 Cr. P.C. (Ext. Kha-7). (iv) Copy of Chalani report of case no. 202 under Section 107/116 Cr. P.C. (Ext. Kha-8). (v) Copy of order of case no. 202 (Ext. Kha-9). (vi) Copy of C.H. Form No. 45 (Ext. Kha-10). 16. We have heard S/Sri Y. S. Bohra, P. K. Pandey and Sri Manish Tiwari, learned counsel for the appellants and S/Sri Rajiv Sharma and Rahul Asthana, learned A.G.A. for the State and perused the entire record. 17. It was argued on behalf of the appellants that first information report was not in existence at the time mentioned in it. None had seen the occurrence. Said eye account witnesses were not present on the spot. They have been procured later on to falsely implicate the present appellants in the case. Enmity is admitted to both the parties. Therefore, there is chance of false implication. P.W.-1 Daya Shankar was not present on the spot. He had not received any injuries. Also he did not try to save his father. Other eye account witnesses had reached on the spot after hearing the shots therefore, their statement on the point of causing fire arm injuries by the appellants are also not believable. Medical evidence does not support the oral testimony of the eye account witnesses. Police papers were not carried by the police personnel along with dead body. Other eye account witnesses had reached on the spot after hearing the shots therefore, their statement on the point of causing fire arm injuries by the appellants are also not believable. Medical evidence does not support the oral testimony of the eye account witnesses. Police papers were not carried by the police personnel along with dead body. One cartridge said to have been recovered from the place of occurrence but as per ballistic expert report it was not used from the gun belonging to the appellants. There are major contradiction in the statement of the eye account witnesses about the manner of the alleged incident, presence of the witnesses and use of the weapons. Incident is said to have taken place in the evening. There was no source of light to recognise the assailants. Conduct of the P.W.-1 Daya Shankar also goes to show that he was not present on the spot at the time of occurrence as he had not lodged the F.I.R. himself. Special report in the matter was sent belatedly. G.D. was kept opened and on the next day of incident F.I.R. was lodged. Prosecution witnesses have changed version on material points at subsequent stages. Witnesses said to be eye account witnesses are interested and relative of the deceased. Referring to the entire prosecution evidence it was also argued that prosecution was not able to establish its case beyond reasonable doubt. 18. Learned A.G.A. argued that first information report was lodged promptly without any delay. Medical evidence fully supported the prosecution case. Witnesses said to be eye witnesses were actually present on the spot. They had seen the occurrence. Motive alleged by the prosecution was also proved. P.W.-1 is the natural and probable witness. Place of occurrence was not challenged by the defence. Laches committed by the Investigating Officer has been properly explained by the prosecution. 19. We have considered the submissions raised by the learned counsel for the parties and have also gone through the entire record. 20. Before proceeding to deal with the submissions raised by the learned counsel for the parties we would refer the finding of the trial court recorded on material points. (i) Motive attributed to the accused was found established by the prosecution beyond reasonable doubt. (ii) Date and time of the occurrence was also established from the prosecution evidence and supported by the medical evidence. (i) Motive attributed to the accused was found established by the prosecution beyond reasonable doubt. (ii) Date and time of the occurrence was also established from the prosecution evidence and supported by the medical evidence. (iii) Place of occurrence was also found proved from the prosecution evidence. (iv) P.W.-1 Daya Shankar, P.W.-3 Purshottam Tiwari and P.W.-4 Lalta Prasad were eye account witnesses. Their testimony were reliable and find support from the medical evidence. (v) Manner of the incident and use of the weapon by the accused appellants have also been established by the prosecution beyond reasonable doubt. (vi) F.I.R. was lodged on the date and time mentioned in the chik without delay and is a genuine document. DISCUSSION 21. Now first of all we take up the motive part. 22. In the written report (Ext. Ka-1), it is mentioned that the deceased extended help to one Mst. Durghatia who was the wife of the uncle of the accused appellants. Husband of Mst. Durghatia had died, therefore, there was some dispute regarding the property belonging to the husband of Mst. Durghatia between the accused appellants and her. Due to this reason appellants bore enmity, and hence committed the murder of the deceased. P.W.-1 Daya Shankar, who claimed himself to be an eye witness of the occurrence and is the son of the deceased, has further disclosed the fact during the course of examination that the deceased had moved an application before the competent authority to cancel the gun license issued in the name of the accused appellant Ram Bahor, due to which also, the accused appellants was nursing grudge. In the statement under Section 313 Cr. P.C. all these facts were placed before the accused appellants and they stated the same to be true. If the fact stated for the first time before the court regarding cancellation of the license of the gun be not taken into consideration then also the fact stated in the written report (Ext. Ka-1) regarding enmity was admitted by the accused appellants themselves, therefore, in our considered opinion the trial court has rightly held that prosecution was able to establish the motive attributed to the accused appellants. Since the dispute going on between Mst. Durghatia and the accused appellants ended in favour of Mst. Durghatia, therefore, they had grudge to commit the murder of the deceased. Since the dispute going on between Mst. Durghatia and the accused appellants ended in favour of Mst. Durghatia, therefore, they had grudge to commit the murder of the deceased. It is pertinent to mention here that though motive is the essential ingredient to constitute a crime but where there are eye account witnesses, motive loses its significance. 23. Now court proceeds to take up the existence of the first information report. In the present matter first information report was lodged by one Vijay Shankar, P.W.-5, son of the deceased. It is also clear from the evidence that he was not present on the spot at the time of occurrence. He is the real son of the deceased but had been adopted by some other person. This witness was also residing in the same village where the deceased was residing. 24. It is the submission of the learned counsel for the appellants that special report was not sent immediately after the registration of the case to the higher authorities. Police papers were also not sent along with the dead body for post mortem examination, as is clear from the statement of the Constable who had carried the dead body and the statement of the Doctor who conducted the post mortem. It is also submitted by the learned counsel for the appellants that inquest report was prepared on 30.1.1982 whereas the offence is said to have taken place on 29.1.1982 at about 5 P.M. . 25. To analyse the arguments advanced by the learned counsel for the appellants, we have closely scrutinised the prosecution evidence on this point. It is evident that special report, as required under Section 157 Cr.P.C., was not sent immediately to the higher authorities by the concerned police. Inquest report could also not be prepared in the same night in which the offence took place. Police papers said to have been prepared along with inquest report were not submitted at the mortuary concerned where the dead body was kept in the night of 30.1.1982 itself. P.W.-9 Dr. Iqbal has also stated that police papers were received by him on 31.1.1982. In some police papers crime no. etc. and the name of the accused appellants were not mentioned but in the inquest report, photo nash, sample seal crime number and the nature of the offence was clearly mentioned. P.W.-9 Dr. Iqbal has also stated that police papers were received by him on 31.1.1982. In some police papers crime no. etc. and the name of the accused appellants were not mentioned but in the inquest report, photo nash, sample seal crime number and the nature of the offence was clearly mentioned. In Form 13 date and time of the information was shown but the crime number and the nature of offence was not mentioned. Now the question is whether only on this basis it can be inferred that first information report was not in existence at the time mentioned in the chik. After analysing the evidence, we are of the view that plea raised by the learned counsel for the appellants on this point is vague, without any substance and not acceptable. Inquest report is prepared only to ascertain whether the death is suicidal, homicidal or accidental. It is not required under the law to mention the crime number, details of the offence, name of the accused persons etc. in the inquest report or the other police papers. If the police personnel preparing such papers had not mentioned these details in the police papers then also the existence of the first information report could not be doubted. Existence of the first information report could also not be doubted on the ground that information as required under Section 157 Cr. P.C. was not sent immediately after the registration of the case to the higher authorities. Certainly these checkmates are only to control the investigation. Delay in sending F.I.R. to court may provide basis for suspicion that the F.I.R. was recorded much later to set up a distorted version. But the delay in sending the F.I.R. to court would not dislodge the other evidence. Effect of short comings on the part of the officer registering the F.I.R. or the Investigating Officer are part of the task of the court to appreciate the evidence and to assess the effect of such defects. Such defects become marginal in case where the main testimony of eye witness or witnesses proving circumstantial facts inspire confidence and appears truthful. If such evidence is of a shabby nature or does not inspire confidence, such assessment of evidence is strengthened by serious defects in F.I.R. or investigation. Hon'ble Supreme Court in Paramjit Singh Vs. State of Punjab, AIR 2008 S.C. 441 and Sarvesh Narayan Shukla Vs. If such evidence is of a shabby nature or does not inspire confidence, such assessment of evidence is strengthened by serious defects in F.I.R. or investigation. Hon'ble Supreme Court in Paramjit Singh Vs. State of Punjab, AIR 2008 S.C. 441 and Sarvesh Narayan Shukla Vs. Daroga Singh, AIR 2008 S.C. 320 has approved the same view. 26. In the present matter P.W.-5 Vijay Shankar had clearly admitted that he prepared the written report (Ext. Ka-1) within two hours of the incident and proceeded to the concerned Police Station. The distance between the place of occurrence and the Police Station concerned is about four miles. 27. In the facts and circumstances of the case non sending of the special report immediately to the higher authorities when the reason has been clearly explained by the prosecution is not fatal to the prosecution case. Non submitting of the police papers to the mortuary on 30.1.1982 along with the dead body itself have also been clearly explained. Thus the prosecution case or the existence of chik report at the time mentioned in the chik itself could not be doubted in the present matter on these count. 28. It is also noteworthy here that just after receiving the information and registering the case two police constables were sent by the S.H.O. concerned to the place of occurrence who reached there at about 10 P.M. in the same night itself. They stayed there till the preparation of the inquest report. They had also carried the dead body and other police papers to the mortuary. 29. Now we proceed to take up the plea regarding source of light. Prosecution case is that present incident took place on 29.1.1982 at about 5 P.M. Place of occurrence is the open place at the road side situated along the canal. The incident took place in the last days of the month of January. Certainly sun sets around 5.30 P.M. in those days. After sun set on the day of occurrence there may have been some light which can be said twilight. Accused appellants were very well known to the witnesses, therefore, there would have been no problem in recognising the accused persons by the witnesses. The time of the occurrence is also established from the medical evidence as Dr. After sun set on the day of occurrence there may have been some light which can be said twilight. Accused appellants were very well known to the witnesses, therefore, there would have been no problem in recognising the accused persons by the witnesses. The time of the occurrence is also established from the medical evidence as Dr. Iqbal P.W.-9 clearly stated before the court that death of the deceased could have taken place on 29.1.1982 between 5.00 to 5.30 P.M. Thus we are of the view that at the time of occurrence there was sufficient light and the witnesses would have no problem to recognise the accused appellants. Minor contradiction in the statement of the prosecution witnesses on the point of darkness after the incident is immaterial because statement of the witnesses on the point that present incident took place between 5.00 to 5.30 P.M. and there was sufficient light at that time is consistent and clear. Thus finding recorded by the trial court on this point is in accordance with law and is not liable to be interfered with. 30. Coming to the medical evidence, we have analysed the statement of P.W.-9 Dr. Iqbal who had conducted the post mortem on the body of the deceased. Two gun shot injuries were found by this witness on the body of the deceased, one was on the skull and another was on the back of the chest over the right scapula region. It is also mentioned that all the bones of skull were found fractured. Brain matter was lacerated and coming out of the wound. Third, fourth and fifth ribs were also found fractured. Right scapula, right pleura, right lung were also lacerated. Cause of death was shock and haemorrhage as a result of ante mortem injuries. P.W.-9 has also opined that injury number 1 and 2 were sufficient individually to cause the death of deceased in the ordinary course of nature. Accused appellants were armed with the gun and country made pistol. Two shots were said to have been fired. It is not mentioned in the injury sheet whether blackening or charring were present or not in the injury no. 1 but in the cross examination P.W.-9 has admitted that if the deceased would have been wearing number of clothes then there would be no blackening or charring due to fire from a close range. It is not mentioned in the injury sheet whether blackening or charring were present or not in the injury no. 1 but in the cross examination P.W.-9 has admitted that if the deceased would have been wearing number of clothes then there would be no blackening or charring due to fire from a close range. P.W.-9 had also found 24 small pellets. If the pellets said to have been recovered from the dead body of the deceased are compared with the weapons assigned to the appellants it is clear that injuries could be caused from the weapons assigned to the appellants. Position of the injury no. 1 found on the skull of the deceased if compared with the statement of P.W.-9 regarding dispersal of the pellets it would be clear that fires were made from the close range. Trial court's finding on the point of medical evidence and the time of death is in accordance with the evidence available on record which cannot be said to be illegal or perverse. Medical evidence in the present matter fully supports the prosecution case. Deceased was done to death on 29.1.1982 at the time and place mentioned in the written report (Ext. Ka-1), from the shots fired by the weapons assigned to the accused appellants. There is no conflict between the medical evidence and oral testimony. The finding recorded by the trial court is not interfereable. 31. Now we take up the presence of the witnesses and their credibility. 32. It is the prosecution case that initially P.W.-1 Daya Shankar and the deceased both had gone to remove the rain water collected in their field. After some time P.W.-1 had gone to Koraon market but returned again at the said field at about 4 P.M.. After removing the rain water he asked the deceased to go back to home. Deceased proceeded to the home. P.W.-1 Daya Shankar also left the field after a short while. Deceased reached at the place of occurrence after crossing the canal. Accused appellants who were hiding near the place of occurrence came out and opened fire upon the deceased. P.W.-1 was just about 100 paces behind the deceased. When he saw the accused appellants he rushed towards the place of occurrence and saw the incident. Accused appellant Ram Bahor opened fire from his country made pistol upon the deceased who fell down. P.W.-1 was just about 100 paces behind the deceased. When he saw the accused appellants he rushed towards the place of occurrence and saw the incident. Accused appellant Ram Bahor opened fire from his country made pistol upon the deceased who fell down. Thereafter Raja Ram also fired upon the deceased. In the written report (Ext. Ka-1) it is mentioned that only two fires were made by the accused appellants. This fact also find support from the statement of P.W.-1 Daya Shankar who claimed himself to be present at the time of occurrence. 33. Learned counsel for the appellants has argued that P.W.-1 Daya Shankar, who is the son of the deceased, is alleged to leave the field to visit Koraon Market, leaving his old father all alone to remove the rain water and thereafter made no effort to save his father. Such conduct on the part of PW-1, who is the son of the deceased is highly unnatural and improbable. It is admitted fact that P.W.-1 Daya Shankar had gone home after the incident and it clearly indicates that he was not present on the spot. Had he been present on the spot he would have definitely tried to save his father. 34. To analyse the submissions raised by the learned counsel for the appellants, we have minutely gone through the evidence of the P.W.-1 Daya Shankar. He has clearly admitted that he was about 100 paces behind the deceased at the time of the occurrence. There was sufficient light (twilight) at that time. He was also going towards the direction to which the deceased was going. Thus in the fact and circumstances of the case the statement of P.W.-1 Daya Shankar that he saw the accused appellants committing the present offence is not improbable or unnatural. It is usual that in villages people go to their field in the day hour and return in the evening after completing the agricultural work therefor. It is not unnatural and improbable that P.W.-1 Daya Shankar would leave his father, deceased, at the field all alone to do agricultural work in order to visit Koraon Market. Deceased was aged about 65 years at the time of incident. If he was attending his agricultural work, it means he was hale and hearty. As the sun was about to set, P.W-1 asked the deceased to proceed for home. Deceased was aged about 65 years at the time of incident. If he was attending his agricultural work, it means he was hale and hearty. As the sun was about to set, P.W-1 asked the deceased to proceed for home. This fact cannot be termed improbable or unnatural conduct. 35. Merely because P.W.-1 Daya Shankar himself had not lodged the first information report his presence cannot be doubted on the spot at the time of occurrence. He has clearly stated before the court that after the incident he rushed towards his home only to inform the family members. He immediately returned after informing the family members and remained present at the place of occurrence whole night. The conduct of the P.W.-1 is not unnatural or improbable. Submissions raised by the learned counsel for the appellants regarding presence of this witness on the spot is not acceptable. He is the son of the deceased and merely on this basis that the enmity exists between the deceased and the accused appellants, P.W.-1 will not falsely implicate a person who had not committed the offence and leave the real culprits unpunished. Therefore, in our considered opinion relation of this witness with the deceased and the enmity with the appellants is not sufficient to hold that he was not present on the spot and had falsely implicated the appellants in the present matter. Testimony of this witness on material point is consistent and cogent. 36. As far as the presence of the P.W.-3 Purshottam Tiwari and P.W.-4 Lalta Prasad is concerned they had also reached at the place of occurrence on hearing the gun shots. As per P.W.-3 Purshottam Tiwari he was present at his field which is situated nearly 80 to 85 paces from the place of occurrence which can easily be seen from the place where he was present at the time of incident. Although the defence has tried to establish the relation of this witness with the deceased but on close scrutiny we find that this witness was present at his field at the time of occurrence. He reached at the place of occurrence and saw the accused persons there committing present offence. P.W.-4 Lalta Prasad's field is also situated nearly 100 to 125 yards from the place of occurrence. He heard the sound of fire and saw that Raja Ram was opening fire upon the deceased. He reached at the place of occurrence and saw the accused persons there committing present offence. P.W.-4 Lalta Prasad's field is also situated nearly 100 to 125 yards from the place of occurrence. He heard the sound of fire and saw that Raja Ram was opening fire upon the deceased. He is not the witness of first fire. He has only stated that accused appellant Ram Bahor was present there. Learned counsel for the appellants referred to the site plan and has argued that field of the Purshottam and Lalta Prasad were situated more than 300 yards away from the place of occurrence. It was impossible for these witnesses to recognise the assailants from the place where they were present at the time of incident. If the argument advanced by the learned counsel for the appellants is scrutinised in the light of the statement made by these witnesses before the trial court, it is evident that Investigating Officer himself has shown the fields of these two witnesses near the place of occurrence. There is contradiction in the statement of these two witnesses and the statement of Investigating Officer P.W.-6 on the point of distance between the place of occurrence and the fields belonging to them but only on this ground the presence of these two witnesses at their fields and at the place of occurrence cannot be doubted. There is some exaggeration in the statement of P.W.-3 Purshottam Tiwari but on material point about date, time and place of the occurrence and also the manner in which the accused appellants committed the present offence his statement is consistent, cogent and clear. The contradictions, exaggeration, omission said to have been occurred in the statement of these witnesses, in the chik first information report, statement under Section 161 Cr. P.C., are not of vital nature. Finding recorded by the trial court that P.W.-1 Daya Shankar; P.W.-3 Purshottam Tiwari and P.W.-4 Lalta Prasad are eye account witnesses and they had seen the occurrence are based on the evidence available on record. There is no illegality or perversity in the finding. 37. So far as the statement made by P.W.-5 Vijay Shankar is concerned he is not an eye account witness. He is a witness of first information report. Whatever facts were stated by the P.W.-1 Daya Shankar to him he reduced the same in the writing in the written report (Ext. There is no illegality or perversity in the finding. 37. So far as the statement made by P.W.-5 Vijay Shankar is concerned he is not an eye account witness. He is a witness of first information report. Whatever facts were stated by the P.W.-1 Daya Shankar to him he reduced the same in the writing in the written report (Ext. Ka-1) and the same was submitted by him to the concerned Police Station. Statement of P.W.-7 the constable who had reached on the spot in the night itself also support this fact that place of occurrence was the same as has been mentioned in the chik first information report (Ext. Ka-2). Place of occurrence was fixed from the prosecution evidence. 38. As far as the laches committed by the Investigating Officer is concerned it is pertinent to mention here that he did not mention the exact distance between the place of occurrence and the field of the witnesses P.W.-3 and P.W.-4. The distances were shown only on the basis of guess work. In our opinion this fact is not sufficient to discard the oral testimony of eye account witnesses whose presence on the spot at the time of occurrence was established from the prosecution evidence. The oral testimony of the eye account witnesses can also not be thrown out on the ground that cartridge said to have been recovered from the place of occurrence was not found to be used from the gun said to have been recovered from the possession of the accused appellant Ram Bahor. The gun which was tested by the Forensic Science Laboratory was the gun belonging to the accused appellant Ram Bahor. Witnesses who were present at some distance from the place of occurrence could not be expected to give the exact description of the weapons said to have been used in commission of the crime. The pellets were recovered from the body of the deceased which could only be used in the weapons assigned to the appellants. 39. Finding recorded by the trial court on these points are not liable to be interfered with and they are not even illegal or perverse. 40. The pellets were recovered from the body of the deceased which could only be used in the weapons assigned to the appellants. 39. Finding recorded by the trial court on these points are not liable to be interfered with and they are not even illegal or perverse. 40. So far as the participation of both the accused in the commission of present offence is concerned, statement of the P.W.-1 Daya Shankar, P.W.-3 Purshottam Tiwari and P.W.-4 Lalta Prasad are clear and consistent on the points that both the accused have actively participated in committing the present offence. Accused appellants were armed with weapons, i.e. gun and country made pistol and have caused fire arm injuries to the deceased. There are two injuries found on the body of the deceased. Pellets said to have been recovered from the body of the deceased also tallies with the weapons assigned to the accused appellants. Enmity admitted to both the parties are not of such nature to infer that accused appellants have been falsely implicated in the present matter. Thus in our view, trial court has rightly held the appellants guilty for the offence under Section 302 IPC as distinct and separate role have been assigned to both the appellants for committing the present offence. 41. Thus on the basis of foregoing discussions and close scrutiny of the evidence in the light of the submissions raised by the learned counsel for the parties and also comparing the same with the finding recorded by the trial court, we are of the view that findings of the trial court in the impugned judgment and order are well discussed and reasoned and are based on the evidence. 42. Consequently, the appeal being bereft of any merit is liable to be dismissed and is hereby dismissed. The conviction and sentence recorded by the trial Court vide impugned judgment and order against the accused-appellants Raja Ram and Ram Bahor is affirmed. Since both the accused-appellants are on bail, their bail bonds are cancelled. Accused-appellants are hereby directed to surrender before the Chief Judicial Magistrate concerned forthwith to serve out the remaining sentence imposed upon them. Chief Judicial Magistrate concerned is also directed to take coercive steps if the accused-appellants fail to surrender. 43. Since both the accused-appellants are on bail, their bail bonds are cancelled. Accused-appellants are hereby directed to surrender before the Chief Judicial Magistrate concerned forthwith to serve out the remaining sentence imposed upon them. Chief Judicial Magistrate concerned is also directed to take coercive steps if the accused-appellants fail to surrender. 43. The record of the trial Court along with the copy of the judgment be sent to the Court concerned and Chief Judicial Magistrate concerned for immediate compliance. Compliance report be also submitted to this Court.