JUDGMENT (Per Pratyush Kumar, J.) The instant appeal has been filed by the four accused-appellants under Section 374 Cr.P.C. against the judgment and order dated 30th September, 1983 passed by Sri Krishna Kumar, II Addl. Sessions Judge, Unnao in S.T. No. 631 of 1982, State Vs. Suresh Singh & others, under Section 302 /34 IPC, P.S. Ajgain, District- Unnao, whereby the appellants were convicted and sentenced as under : - (i) Appellant- Suresh Singh under Section 302 IPC to undergo imprisonment for life, and appellants Pappu @ Brijesh Kumar, Sajiwan Lal and Mahendra Singh under Sections 302/34 IPC to under go imprisonment for life; (ii) Appellant Pappu @ Brijesh Kumar under Section 323 IPC to undergo three months' R.I. And appellant Sajiwan Lal under Sections 323/34 IPC to undergo three months' R.I. Sentences were directed to run concurrently. 2. The first informant also filed Criminal Revision No. 90 of 1984, whereby prayer has been made that sentences of imprisonment for life passed against all the accused persons be enhanced to sentences of death. 3. Since the instant appeal and revision arise out of the same judgment and order, therefore, they are being disposed of by a common order. 4. In the present matter, facts of the prosecution version may be summarized as under : - That on 22nd June, 1982 at about 10 a.m.. the present revisionist- Kishori Lal gave a written report at P.S. Ajgain stating therein that, that day at about 8.30 a.m. when he came out of his house, he found his chabutra was damaged by any bullockcart. He was asking loudly who did that. At that his neighbour Pappu @ Brijesh Kumar and his cousin Sajiwan Lal came there, abused him. Sajiwan Lal caught him and Pappu @ Brijesh Kumar slapped him. At the alarm raised by him, his brother Nihal Chandra, Brijesh Kumar, mother Jamuna Devi and co-villager Harish Chandra and Ramesh Chandra came there and intervened. They suggested that their elder Desh Raj Singh be approached for settlement of dispute. They proceeded towards the house of Desh Raj Singh, his brother Nihal Chandra was ahead by them followed by Jamuna Devi. In the meantime, Pappu @ Brijesh Kumar and Sajiwan Lal went back to their house. They suggested that their elder Desh Raj Singh be approached for settlement of dispute. They proceeded towards the house of Desh Raj Singh, his brother Nihal Chandra was ahead by them followed by Jamuna Devi. In the meantime, Pappu @ Brijesh Kumar and Sajiwan Lal went back to their house. When they were about to reach near the house of Desh Raj Singh, Suresh Singh armed with licenced double barrel gun of his uncle Pyare Lal, Pappu @ Brijesh Kumar and Sajiwan Lal armed with kanta, Mahendra Singh armed with lathi came from the back side exhorting them. They turned back and said that when there was going to be talks for settlement why they were abusing. Meanwhile, Pappu @ Brijesh Kumar, Sajiwan Lal and Mahendra Singh exhorted Suresh Singh to let them murder "Sale Ko" , the opportunity was good, he should not go back safely that would settle the dispute of chabutra. His brother Nihal Chandra, said, with folded hands that the matter was going to be settled peacefully. They should keep their mouth closed and not abuse them. His mother from the back side caught Nihal by her hands and asked him not to go further otherwise enemies would kill him. Suresh Singh reached near Nihal Chandra and fired his gun on his chest, who sustaining gun shot wound fell down, his mother while crying and clasping him also fell down, all others due to fear went inside the house of Shiv Kumar. The assailants went away to the northern side of the village. Thereafter they came out and saw that Nihal Chandra had died, his mother had one gun shot wound in her chest. When she was separated from the dead body of Nihal Chandra, she also died after sometime. Dead bodies were looked after by the villagers. Request was made that proper action be taken. 5. At this written report, chick FIR was scribed, Case Crime No. 101, under Section 302 IPC and Case Crime No. 102 under Section 30 Arms Act were registered, though in the chick FIR, names of five accused were written however, Pyare Lal was made an accused in later case crime number. Requisite entry was made in the report of the General Diary and investigation was taken over by S.I. Sanmaan Singh, the then S.O. Ajgain. Requisite entry was made in the report of the General Diary and investigation was taken over by S.I. Sanmaan Singh, the then S.O. Ajgain. He reached the spot, conducted inquest proceedings sent the dead bodies to the mortuary for autopsy, examined the witnesses, inspected the spot, took samples of blood stained and simple earth and raided the house of Pyare Lal to recover the gun but could not find it. After completion of investigation, charge sheet was submitted against all the accused persons except Pyare Lal. 6. The Magistrate took cognizance of the offence and committed the case to the Court of Session. In the Court of Session, the appellants were separately charged. Against the appellant no. 1, charge under Section 302 IPC for causing death of Nihal Chandra and Jamuna Devi was framed to which he pleaded not guilty and claimed to be tried. Sajiwan Lal and Brijesh Kumar were separately charged, Sajiwan Lal under Section 323 /34 IPC and Bijesh Kumar under section 323 IPC for voluntarily causing hurt to Kishori Lal and further Brijesh Kumar @ Pappu, Sajiwan Lal and Mahendra Singh were charged under Section 302 /34 IPC for the murders of Nihal Chandra and Jamuna Devi committed by Suresh Singh in furtherance of common intention shared by all of them. These appellants also pleaded not guilty and claimed to be tried. 7. In the documentary evidence besides other papers, the prosecution has filed written report Ext. Ka-1, chick FIR Ext. Ka-2A, post-mortem reports Ext. Ka-2 and 3, site plan Ext. Ka-14, recovery memo Ext. Ka-15, injury report Ext. Ka-17. In the oral evidence on behalf of the prosecution, six witnesses were examined, out of these Kishori Lal the present revisionist (P.W.-1) is the first informant and brother of Nihal Chandra- deceased and son of deceased Jamuna Devi, Ramesh (P.W.-3) is the independent witness. Both have supported the prosecution version. Dr. M.P. Rastogi (P.W.-2) is the doctor who conducted the post mortem examinations on the dead bodies of the deceased Nihal Chandra and Jamuna Devi. Iqbal Haider (P.W.-4) is the clerk constable. S.I. Sanmaan Singh (P.W.-5) is the Investigating Officer who gave details of the steps taken by him during the investigation. H.S. Gupta (P.W.-6) is the doctor who medically examined Kishori Lal and proved his injury report Ext. Ka-17. Iqbal Haider (P.W.-4) is the clerk constable. S.I. Sanmaan Singh (P.W.-5) is the Investigating Officer who gave details of the steps taken by him during the investigation. H.S. Gupta (P.W.-6) is the doctor who medically examined Kishori Lal and proved his injury report Ext. Ka-17. One witness Virendra Baboo (C.W.-1) was examined by the Court who was compounder in District Jail, Hardoi. He deposed before the Court that when Suresh Singh was admitted in jail during medical examination, no injury was found on his person. 8. After close of prosecution evidence, statements of appellants were recorded under Section 313 Cr.P.C. They denied the facts stated by the eye witnesses. However, regarding damage to chabutra they pleaded ignorance. According to them, they were falsely implicated due to enmity. Witnesses were deposing against them due to parti-bandi. Appellant no. 1 has further stated in his statement that on the fateful day, he was sitting at about 8: 30 a.m. in front of the door of his uncle Desh Raj Singh. The first informant and others armed with lathies and the deceased Nihal Chandra armed with kanta came there, abused them, when asked not to do so started to beat him, when Pyare Lal warned them, they did not stop, to save him Payre Lal fired shot from his gun which hit both the deceased. He sustained injuries in the scuffle and was medically examined at Sadar Hospital, Unnao on the next day. Then he also made a complaint to the S.P. Unnao. About of the evidence of Virendra Baboo (C.W.-1), appellant no. 1 has stated that he was not presented for medical examination in jail. Statements of rest of the accused, except the facts stated by the appellant no. 1 at the end of the statement, are to the same effect. 9. In the defence injury report of Suresh Singh Ext. Kha-1, copy of application addressed to S.P. Unnao of Suresh Singh Ext.Kha-2, application of Pyare Lal Ext.Kha-3 were filed. By the defence Dr. J.N. Bajpai (D.W.-1) and Pyare Lal (D.W.-2) were examined. Dr. J.N. Bajpai (D.W.-1) proved the injury report of Suresh Singh Ext. Kha-2. Pyare Lal (D.W.-2) reiterated the facts stated by the appellant at the end of his statement under Section 313 Cr.P.C.. 10. The learned trial Judge after hearing arguments of both the parties, convicted the appellants and sentenced them as above. Dr. J.N. Bajpai (D.W.-1) proved the injury report of Suresh Singh Ext. Kha-2. Pyare Lal (D.W.-2) reiterated the facts stated by the appellant at the end of his statement under Section 313 Cr.P.C.. 10. The learned trial Judge after hearing arguments of both the parties, convicted the appellants and sentenced them as above. He has found the oral evidence worthy of reliance duly corroborated by promptly lodged FIR. He found the defence witnesses unreliable. 11. Feeling aggrieved, the present appeal has been filed. On the question of sentence, the first informant has filed the revision to challenge the sentence awarded by the learned trial Judge, on the ground that it was a case of single fire and in such matter imprisonment for life would serve the ends of justice. The grievance of the revisionist is that the reason recorded by the learned trial Judge for not awarding death penalty is no reason at all. The crime was pre-planned and death penalty was the only sentence commensurate with the crime committed by the respondents in the revision. 12. First, we would deal with the appeal filed by the accused-appellants, thereafter we would take into consideration the ground raised in the revision. 13. Heard Sri Mohd. Mustafa Khan, learned counsel for the appellant, Sri Mohd. Yusuf Ansari, learned AGA and perused the record. 14. On behalf of the appellant, it has been submitted by learned counsel for the appellant that the learned Sessions Judge has erred in appreciating the evidence adduced by the parties. It has been further submitted that non explanation of the injuries sustained by Suresh Singh is fatal for the prosecution but learned trial Judge has wrongly rejected the defence argument in this regard. It has been further argued that FIR was anti-timed. It has been wrongly treated to be promptly lodged. The prosecution has miserably failed to prove its case and on the basis of incorrect findings the appellants have been illegally convicted. 15. On behalf of the State, these arguments have been repelled in detail and it has been argued that all the findings recorded by the learned trial Judge are well substantiated from the record. 16. On behalf of the revisionist even in revised call, none was present. With the help of learned AGA arguments on the revision have already been heard. On behalf of the State, these arguments have been repelled in detail and it has been argued that all the findings recorded by the learned trial Judge are well substantiated from the record. 16. On behalf of the revisionist even in revised call, none was present. With the help of learned AGA arguments on the revision have already been heard. Reason for awarding the sentence of imprisonment for life has been challenged, to which learned counsel appearing for the respondents in the revision and the appellants in the appeal have submitted that the reason recorded had found favour by the Hon'ble Apex Court also in numerous cases. 17. Before we propose to deal with the arguments submitted by the respective parties, we would like to recollect the manner in which appeal against conviction is required to be considered by this Court and scope of jurisdiction conferred on the Court by Sections 374 and 386 Cr.P.C. Further we would like to refresh the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni Vs. State of Gujarat [1995 SCC (Crl) 222]. Para-4 of the judgment reads as under: "4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained." 18. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained." 18. In the case of Lal Mandi, Appellant v. State of West Bengal, Respondent [1995 CRI.L.J.2659 (Supreme Court), 2659 : 1997 (Suppl.) ACC 100 (SC)], the Apex Court in para-5 of the report has given the caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, extracted below: "5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh's case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence." 19. Now we would like to consider the medical evidence adduced by the prosecution. Dr. M.P. Rastogi (P.W.-2) is the doctor who on 23rd June, 1982 at 1: 45 p.m. and 2: 30 p.m. performed the autopsies on the dead bodies of Nihal Chandra and Smt. Januma Devi, respectively. He has stated that Nihal was aged about 24 years and rigor mortis from the dead body had passed off from the upper extremity and on the lower extremity it was present. During internal examination, he recovered wadding and one big shot from the body. He also found the stomach and small intestine empty, large intestine full of faecal matter and gases. He proved the post mortem report Ext. Ka-2 wherein he recorded following injuries. : - (i) Entrance wound one in number size 1" x 1" x cavity deep oval in shape and right on the upper part and mid line of chest on the upper part of manubrium sternum 1" below the supra sternal notch and 3" above redge present between junction of sternum and manubrium. Inverted and lacerated margins. Blackening and tattooing present. Direction of probing obliquely downward, backward towards left. (ii) Exit wound 5 in number present in an area 3" x 2. 1/2" on the upper part of left side back each having size 0.3" x 0.3" circular in shape, margins everted and lacerated, no blackening or tattooing present 1" left to the veebral column 5" above the level of infemor angle of left scapula, outer scapular region. 20. He has further deposed that during autopsy of Jamuna Devi he has found one ante mortem injury on her person. During internal examination he found stomach and small intestine empty, large intestine full of faecal matter. He proved the post mortem resport Ext. Ka-3 wherein he recorded following ante mortem injuries : - (i) Fire arm entrance wound one in number, round in shape 0.3" x 0.3" cavity deep present on the upper part of chest on manubrium 2 1/2" below the supra sternal notch 1/2" right to the midline no blackening or tattoing present, lacerated margins. 21. Ka-3 wherein he recorded following ante mortem injuries : - (i) Fire arm entrance wound one in number, round in shape 0.3" x 0.3" cavity deep present on the upper part of chest on manubrium 2 1/2" below the supra sternal notch 1/2" right to the midline no blackening or tattoing present, lacerated margins. 21. According to him death of both the deceased would have occurred on the time and date stated by the prosecution. According to him deaths had occurred due to shock and hemorrhage as a result of the ante-mortem injuries. The witness was cross examined on two points, first whether from one gun shot, injuries sustained by both the deceased could have been caused to which he replied positively. He accepted the suggestion of the defence that there might be variation of six hours on either side about time since death. There is no challenge to the rests of the facts stated by this witness during his statement on oath and recorded in post mortem reports. The cross examination was directed only towards his opinion. We can safely concluded that from this medical evidence homicidal deaths of both the deceased by gun shot injuries stand proved. 22. The other medical evidence consists of injury report of Kishori Lal Exhibit Ka-17 and deposition of Dr. H.S. Gupta (P.W.-6), who has stated that on 22nd June, 1982 in the capacity of medical officer PHC, Nawabganj at 11 a.m. he medically examined Kishori Lal and found one contusion 3 ½ c.m. X 2" on the left temporal and upper part of left cheek. Regarding second injury he has stated that the injured complained of pain on the right cheek but no mark of external injury could be seen. Duration of injury was fresh and its nature simple. It was caused by blunt object. It could have been caused on that date at 8 a.m.. He has opined that if very a powerful person slaps a person with great force injury no. 2 might be caused. During cross examination he has stated that ordinarily contusion may be caused by blunt object. However, if by a fist one part of body is hit several times injury like contusion may be caused. Ext. Ka.17 proved by this witness contains similar facts except the opinion mentioned above. From the statement of doctor and injury report Ext. During cross examination he has stated that ordinarily contusion may be caused by blunt object. However, if by a fist one part of body is hit several times injury like contusion may be caused. Ext. Ka.17 proved by this witness contains similar facts except the opinion mentioned above. From the statement of doctor and injury report Ext. Ka 17 it is established that Kishori Lal was medically examined on 22nd June, 1982 at 11 a.m. and one contusion of the aforementioned measurement was found on his left side of the face. 23. Now we have to re-examine and re-evaluate the eye witness account adduced by the prosecution. Before doing that we would have a glance at the evidence of H.C. 24 Iqbal Haider (P.W-4) and Sanmaan Singh (P.W.-5). Iqbal Haider (P.W.-4) has merely proved chick FIR Ext. Ka-2A and report of the G.D. copy whereof is a report of Ext. Ka-3A. He also proved dispatch of special report on the same day at 10: 30 a.m. The witness was suggested that FIR was anti timed which he denied. Investigating Officer Sanmaan Singh (P.W.-5) has given details of steps taken during investigation. He proved inquest reports and other accompanying papers Ext. ka-6 and Ka-7, Ka-8, Ka-11 to Ext.Ka-13. He proved the site plan Ext. Ka-14, recovery memo Ext. Ka-15, Charge-sheet Ext. Ka-16. He denied that he had received any report made by Suresh Singh appellant no. 1.He also denied that FIR was anti-timed. 24. The main witness examined by the prosecution is Kishori Lal (P.W.-1). He is injured witness in reference to the charge framed under Section 323 /34 IPC. He has stated that he was caught by Sajiwan Lal and slapped by Pappu @ Brijesh Kumar. The witness uses the word 'Thappar not Ghunsa'. Further he says that he was slapped on both the sides of the face. On this point we receive some support from the medical evidence. During cross examination Dr. H.S. Gupta (P.W.-6) has stated that if the person forcefully slaps, injury no. 2 could be caused. Since Dr. H.S. Gupta (P.W.-6) is is an official witness. He has no enmity with the appellants and no affinity with the injured. We treat him to be impartial witness. During cross examination Dr. H.S. Gupta (P.W.-6) has stated that if the person forcefully slaps, injury no. 2 could be caused. Since Dr. H.S. Gupta (P.W.-6) is is an official witness. He has no enmity with the appellants and no affinity with the injured. We treat him to be impartial witness. On this strength of his statement that on the left side of the face, one contusion was found and that on the right side of face no mark of external injury could be found, we think that statement of Kishori Lal on this point appears to be reliable. For the reason he is the injured, his presence cannot be doubted, he had opportunity to see who had slapped him, during cross examination, his testimony on this point remains unshaken and further his statement on this point stands corroborated from the evidence of Ramesh (P.W.-3). Thus he is believed to be truthful witness of the first incident. 25. In reference to the other incident, he has given description and sequence of the events, these were a narration by a witness of village back ground, it makes him a natural and probable witness. It was a day hour, he had opportunity to see the incident of firing, during cross examination, nothing could be extracted to show that this witness is not speaking the truth, merely his clothes were not stained with the blood, we cannot discard his testimony. According to him after a gap of 30-40 minutes he proceeded to lodge the FIR. At this juncture, we would also like to take into consideration the fact whether FIR was promptly lodged or it was anti-timed. The incident had occurred at about 8: 30 a.m. and FIR was lodged at 10 a.m. The distance between the two places is 3 miles. From the statement of Iqbal Haider (P.W.-4). dispatch of special report after 30 minutes from lodging of the FIR stands proved, next day autopsies were performed and further anti-timing of FIR was denied by both the police personnel. There is nothing on record to show that the FIR was not scribed at the time alleged by the prosecution, and the burden placed on the prosecution to show that it was promptly lodged, has been discharged by the prosecution by showing prompt dispatch of the special report i.e. after 30 minutes from the time chik FIR was scribed. There is nothing on record to show that the FIR was not scribed at the time alleged by the prosecution, and the burden placed on the prosecution to show that it was promptly lodged, has been discharged by the prosecution by showing prompt dispatch of the special report i.e. after 30 minutes from the time chik FIR was scribed. In view of above, we do not think FIR is anti timed and learned trial Judge erred in holding it to be promptly lodged. 26. This strengthens the credibility of the statement made by this witness before the trial court. The abnormal conduct i.e. not saving deceased person and hiding himself in the house of Shiv Kumar, has been made a ground to state that this witness was not present at the time of occurrence. The conduct of the witness is admissible under Section 8 of the Evidence Act. However, it has no bearing on the veracity of the statement of a witness. 27. The Hon'ble Apex Court in the case of Rana Pratap v. State of Haryana AIR 1983 Supreme Court 680 has made observations to clarify different reactions of different persons. The Hon'ble Apex Court has observed in this reference that every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of witnesses on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way. Therefore, on this ground his testimony cannot be disbelieved. 28. Over all we find testimony of this witness contains the truthful account of the occurrence wherein Nihal Chandra and Jamuna Devi were done to death. 29. Ramesh (P.W.-3) is the other eye witness who has been examined as an independent witness. During cross examination he has suggested enmity with Suresh- appellant no. 1, but this witness has denied the suggestion. He also denied this fact that he belonged to the party of the first informant Kishori Lal. 29. Ramesh (P.W.-3) is the other eye witness who has been examined as an independent witness. During cross examination he has suggested enmity with Suresh- appellant no. 1, but this witness has denied the suggestion. He also denied this fact that he belonged to the party of the first informant Kishori Lal. To assess the intrinsic value of the evidence of an eye witness enmity or affinity is a very minor point. To asses the probative force of a statement of an eye witness main yardsticks are whether presence of the witness at the time of occurrence was natural and probable, whether that witness had opportunity to see occurrence, whether he faced the test on cross examination successfully. Only thereafter other factors may be taken into consideration to asses the veracity of the statement made by the witness. The witness claims to have reached the place where the first informant Kishori Lal was raising alarm when he was slapped. According to prosecution some family members of Kishori Lal along with other persons intervened and suggested that dispute regarding damage to chabutra might be settled by Desh Raj Singh elder of the family of appellant nos. 1 to 3. The witness claims that he accompanied Kishori Lal, Nihal Chandra, Brijesh Kumar, Jamuna Devi and Harish Chandra and when they were near the house of Desh Raj Singh from the back side the appellants having armed themselves came there and abused them. When these facts are taken into consideration we think his presence at the time of second occurrence is natural and probable. He was one of the party of the deceased persons, thus he had opportunity to see the occurrence. During cross examination nothing adverse could be extracted. Enmity or no enmity we find him to be a truthful witness. 30. From the medical evidence, homicidal deaths of the deceased persons by gun shot stood proved. The eye witness account has been found by us trustworthy, even after perusing these statements several times, we come to the opinion that these statements inspire our confidence. We are consciously aware of the fact that there were four assailants and only one gun shot was fired, however, we could not find any lacuna in their statements. They have given truthful account of the incident. 31. We are consciously aware of the fact that there were four assailants and only one gun shot was fired, however, we could not find any lacuna in their statements. They have given truthful account of the incident. 31. Now we would like to discuss the defence evidence because on behalf of the appellants, it has been argued that prosecution has failed to explain the injuries sustained by Suresh Singh- appellant no.1, therefore, genesis of the occurrence is shrouded with doubt and the prosecution is guilty of hiding something. The learned trial Judge found the defence evidence not worthy for reliance. 32. After perusing the defence evidence we come to the same opinion. The application said to be given by Suresh Singh to S.P. Unnao has not been proved. The evidence of Dr. J.N. Bajpai (D.W.-1) who proved the injury report of Suresh Singh is not worthy to be believed because on that day according to his own admission he was not on emergency duty. He could not tell in whose absence he made the medical examination. He entered the injuries of Suresh Singh in the register meant for accidental injuries. He also admitted that three registers were maintained for medical examinations, one for police cases, other for private medico legal cases and 3rd for accidental injuries. Even according to him, injuries of Suresh Singh should have been entered into second Register meant for private medico legal cases. Entry of the injuries in the wrong Register by a doctor who was not on emergency duty, makes the evidence of Dr. J.N. Bajpai (D.W.-1) full of suspicion. The alleged medical examination took place on 23rd June 1982. The doctor who made the alleged medical examination did not report this fact to the police. Non reporting of it to the police satisfies us that the medical examination might have been fictitious and injury report is a procured one and Suresh Singh did not receive any injury. This fact stands substantiated from the evidence of Virendra Baboo (C.W.-1), who testifies that no medical examination of Suresh Singh was conducted in District Jail, Hardoi from 26th June, 1982 to 28th June, 1982. Each under trial prisoner after his admission to jail, on the next day, is medically examined and any injury found on his body is entered in the Register maintained by the Jail Doctor. Each under trial prisoner after his admission to jail, on the next day, is medically examined and any injury found on his body is entered in the Register maintained by the Jail Doctor. Had Suresh Singh received any injury like incised wound 1/2" x 1/2" x muscle deep on the back of right fore arm that would have been found by the medical officer and entered into the register. The challenge against the finding recorded by the learned trial court on this score is not substantiated from the record and we come to the conclusion that Suresh Singh did not sustain any injury on 22nd June, 1982 at the relevant time, therefore, non explanation of alleged injuries cannot be made a ground to discard the trust worthy accounts of occurrence narrated by Kishori Lal (P.W.-1) and Ramesh (P.W.-3). 33. On behalf of the appellants, it has been argued that on the strength of statement of Pyare Lal it was a case of right of private defence. The argument is that two murders were justified killing. In support of this argument three cases have been cited. They are as under : - (i) Deo Narain Vs. State of U.P., 1973 SCC (Cri.) 330 : 1974 (11) ACC 83 (SC). Reliance has been placed on the observation made in para 5 of the report. In this case the Hon'ble Apex Court has observed that right to use force commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence. In the later part of para 5, the right of private defence has been categorized as preventive not punitive. (ii) Buta Singh Vs. State of Punjab, 1991 SCC (Cri.) 494 : 1992 (29) ACC 98 (SC). This authority has been cited in reference to the right of private defence in terms of Section 99 IPC. In this case, the Hon'ble Apex Court has clarified the extent to which this right can be exercised. (iii) Smt. Vidya Saran Sharma Vs. Sudarshan Lal, 1993 Cr. L.J. 3135. In this case the Hon'ble Apex Court approved the finding recorded at by the High Court about exercise of right of private defence. 34. In this case, the Hon'ble Apex Court has clarified the extent to which this right can be exercised. (iii) Smt. Vidya Saran Sharma Vs. Sudarshan Lal, 1993 Cr. L.J. 3135. In this case the Hon'ble Apex Court approved the finding recorded at by the High Court about exercise of right of private defence. 34. Before we proceed further, it is out duty to refer to the statement of Pyare Lal (D.W.-2) who in his statement has claimed that he had exercised right of private defence of body commenced when he entertained reasonable apprehension about the safety of Suresh Singh, his nephew. Relationship between them is not disputed. However, even after he shot down two persons, this witness had not lodged the FIR. During cross examination he says that after firing took place, he and Suresh Singh left the village and went to some relatives at the distance of 10-12 miles. On his way, P.S. again was situated but he did not lodge the FIR because police was against him. This omission i.e. not reporting the incident to the authorities makes his testimony an after thought not worthy of reliance. 35. When statement of Pyare Lal, DW-2 does not inspire confidence of the Court, plea of right to private defence does not remain available to the appellants. For this reason the law referred on their behalf is on no help to them. 36. Now we deal with next argument advanced on behalf of the appellants, it has been submitted before us that prosecution has failed to prove sharing of common intention to commit murders of Nihal Chandra and Jamuna Devi by all the appellants. 37. To elucidate this argument, it has been submitted that first incident i.e. maar-peet took place if the statement Kishori Lal to this effect may be taken to be true and thereafter the appellants had armed themselves to commit murder, then their intended victim must be Kishori Lal not Nihal Chandra. The act of Suresh Singh to murder Nihal Chandra and Jamuna Devi is an unpremeditated act. There was no prior meeting of minds to either murder him or Smt. Jamuna Devi in the case of Chandrakanta Vs. State of M.P. AIR 1999 SC 1557 (134), the Hon'ble Apex Court has held that two things must be established before a person can be held vicariously liable for the crime committed by another. There was no prior meeting of minds to either murder him or Smt. Jamuna Devi in the case of Chandrakanta Vs. State of M.P. AIR 1999 SC 1557 (134), the Hon'ble Apex Court has held that two things must be established before a person can be held vicariously liable for the crime committed by another. These are as under : - (i) there was common intention in the sense of pre-planned between the two, and (ii) the person sought to be so held liable had participated in some manner in the act constituting the offence. 38. Unless common intention and participation are both present, this section cannot be applied. 39. It is trite mention that the common intention may be formed at the spur of the moment. It is not necessary that prior meeting of mind should be anterior in time. However, we are clear in our mind that there must be common intention shared by all the accused persons when the crime was committed. In the present case Kishori Lal along with his family members was going towards the house of Desh Raj Singh to get the matter settled. Nihal Chandra was ahead by them followed by Jamuna Devi, rests were behind them. The appellants claimed to have come from their back side, exhorting to kill "Sale Ko". The moot question is whom they intended to kill, the identity of that person is not a mystery. They had quarrel with Kishori Lal and not with Nihal Chandra. It has come during the evidence that Nihal Chandra requested to them with folded hands not to abuse and wait for the settlement. The fact is that exhortation was made by appellant nos. 2, 3 and 4 when Kishori Lal asked them to wait for the settlement and keep silent till then, the deceased Nihal Chandra after their exhortation had requested with folded hands and Smt. Jamuna Devi had asked his son not to proceed further however, appellant no.1 came near to Nihal Chandra and fired on his chest. The gun was fired by appellant no. 1 not on the exhortation of the appellant nos. 2, 3 and 4 to kill Kishori Lal but for some reason he had chosen Nihal Chandra to be his victim. It is nobody's case that anyone wanted to murder Jamuna Devi but from the evidence these are established facts that appellant nos. The gun was fired by appellant no. 1 not on the exhortation of the appellant nos. 2, 3 and 4 to kill Kishori Lal but for some reason he had chosen Nihal Chandra to be his victim. It is nobody's case that anyone wanted to murder Jamuna Devi but from the evidence these are established facts that appellant nos. 2, 3 and 4 exhorted to murder Kishori Lal and appellant no. 1 chosen to murder Nihal Chandra. Since Jamuna Devi was very near to Nihal Chandra she was also killed. Now can appellant nos.2, 3 and 4 be said to have common intention to murder these persons. 40. Such controversy has come before Hon'ble Apex Court earlier. The Hon'ble Apex Court with the help of section 301 IPC has held that if common intention was shared to kill A and fire was discharged to kill A but accidentally Z sustained gun shot injury and died the person sharing common intention to kill A would be guilty under Section 302 IPC however, the Hon'ble Apex Court in the case of Raghbir Singh & others Vs. State of Punjab 1996 (A) SCC 233 has said that where in a fight between the first informant and the accused persons and an intervener was killed, in such case common intention was shared by all the accused persons cannot be held. The application of Section 34 in such case was ruled out. When we examine proven facts of this case we find that Nihal Chandra was only intervening, intended victim was Kishori Lal. Therefore, appellant no. 2,3 and 4 cannot be held sharing to common intention with appellant no. 1 to murder Nihal Chandra and Jamuna Devi. This point has escaped the attention of the learned trial Judge while he held appellant nos. 2, 3 and 4 guilty of committing murders of Nihal Chandra and Jamuna Devi with the help of section 34 IPC, this finding is erroneous and against law. 41. We are of the opinion that it was alone appellant no. 1 Suresh Singh who had the intention to murder Nihal Chandra, otherwise he would not have been gone so close to Nihal Chandra and shot him from close range. He must be aware that his fire might hit Smt. Jamuna Devi, therefore, he is guilty of committing willful murders of Nihal Chandra and Jamuna Devi alone. Against appellant no. 1 Suresh Singh who had the intention to murder Nihal Chandra, otherwise he would not have been gone so close to Nihal Chandra and shot him from close range. He must be aware that his fire might hit Smt. Jamuna Devi, therefore, he is guilty of committing willful murders of Nihal Chandra and Jamuna Devi alone. Against appellant no. 2 only charge under Section 323 IPC stands proved and against appellant no. 3 charge framed under Section 323 /34 IPC stands proved, therefore, they are not guilty of sharing common intention necessary to make them vicariously liable for committing murders of Nihal Chandra and Jamuna Devi. Therefore, charge under Section 302 /34 IPC stands not proved against them. They deserve to be acquitted from that charge. The conviction of Suresh Singh under Section 302 IPC is affirmed by us. 42. Thus, the appeal against the conviction of, Suresh Singh under Section 302 IPC and appellant no. 2- Pappu @ Brijesh Kumar under Section 323 IPC and of appellant no. 3- Sajiwan Lal under section 323/34 IPC deserves to be dismissed and further to the extent that appellant nos. 2 to 4 have been wrongly convicted under Section 302 /34 IPC. deserves to be allowed. 43. So far as revision is concerned, in case of single shot without any premeditation death sentence is not the penalty. Imprisonment for life has rightly been awarded. Revision is without substance and deserves to be dismissed. Therefore, we also approve the sentence awarded to the appellant no. 1-Suresh Singh under Section 302 IPC. 44. Criminal Appeal No. 719 of 1983 is partly dismissed and partly allowed to the extent indicated above. The appellant nos. 2 to 4 are acquitted from the charges levelled against them under Section 302 /34 IPC. 45. Criminal Revision No. 90 of 1984 is dismissed. 46. All the appellants are on bail. They are directed to surrender their bail before the Sessions Judge, Unnao, who shall take them into custody and send them to jail to serve their sentences awarded by the trial court and affirmed herein above. In case, appellants do not surrender within the stipulated time, the Sessions Judge, Unnao, shall take appropriate steps to procure their attendance so that they will serve the sentences awarded to them. 47. In case, appellants do not surrender within the stipulated time, the Sessions Judge, Unnao, shall take appropriate steps to procure their attendance so that they will serve the sentences awarded to them. 47. Office is directed to communicate this order to the court concerned to ensure compliance and further sent back the lower court record.