JUDGMENT : (Author Hon'ble S.N. Agnihotri, J.) 1. Feeling aggrieved with the judgment and order dated 04.10.1985 passed by learned Special Judge, Dacoity Affected Area, P.S. Baberu, District Banda, accused Kallu @ Ugrasen Singh preferred this appeal, whereby learned Special Judge hold guilty to accused/appellant and punished him under section 302 I.P.C. with life imprisonment and under section 394 I.P.C., four years rigorous imprisonment. It was also ordered that both imprisonment shall run concurrently. 2. The factual matrix of the case is that on date 26.10.1984, deceased Shri Jhamman Yadav along with his cousin brother Babulal Yadav was coming back from his field and appellant Kallu @ Ugrasen Singh with other accused was also coming behind deceased Jhamman. At about 5:00p.m. when Jhamman reached near the field of Gaya Lohar accused Kallu @ Ugra Sen fired upon Shri Jhamman which hit him on back. Being seriously injured, deceased tried to escape but he failed and fell down near the field of Shri Ram Kumar Yadav. Complainant Shri Babu Lal Yadav raised alarm but accused Kallu @ Ugrasen threatened him, that's why he could do nothing. Accused Kallu @ Ugrasen snatched licenced double barrel gun and 20 cartridges from deceased Shri Jhamman Yadav and ran away from the place of occurrence. 3. After fleeing of the accused Kallu @ Ugrasen Singh, complainant Babulal brought a bullock cart of Subrathi and brought to Shri Jhamman Yadav at Village Budhauli and Scribed F.I.R. Exhibit Ka-1. Thereafter headed towards Police Station Baberu with seriously injured Jhamman, where he lodged complaint against accused Kallu @ Ugrasen with other two co-accused. 4. After registering the First Information Report, police sent injured Shri Jhamman to civil hospital, Banda for better treatment, where Shri Jhamman was admitted and his dying declaration was recorded by Tahsildar Shri Jagdishwar Mishra. Later on in the night at about 2:35p.m. seriously injured Shri Jhamman died. The information of death was sent to Police Station Kotwali Banda from where S.I. Shri Chatrapal Singh visited mortuary and performed inquest report and prepared related documents for postmortem. 5. The postmortem of dead body of Shri Jhamman was performed by Dr. D.S. Parmar. PW5 Shri Krishna Singh Sengar, Investigating Officer investigated the matter and submitted charge sheet in the court concerned. 6. Initially, the learned Special Judge framed charges against accused/appellant Kallu @ Ugrasen along with two other co accused Shri Surajdin and Shri Indrasen. 5. The postmortem of dead body of Shri Jhamman was performed by Dr. D.S. Parmar. PW5 Shri Krishna Singh Sengar, Investigating Officer investigated the matter and submitted charge sheet in the court concerned. 6. Initially, the learned Special Judge framed charges against accused/appellant Kallu @ Ugrasen along with two other co accused Shri Surajdin and Shri Indrasen. The learned Special Judge after recording the evidence and hearing the submissions of the parties, acquitted accused Surajdin and Indrasen from all charges, whereas hold guilty to accused Kallu @ Ugrasen under Sections 302 and 394 I.P.C. Thus, this appeal is preferred only by accused Kallu @ Ugrasen Singh. 7. In his statement under section 313 Cr.P.C. accused Kallu @ Ugrasen Singh denied all accusations and proposed to enter into defense. 8. To prove the guilt against the accused persons, prosecution examined as many as 8 witnesses (for brevity PW's). PW1 Shri Chunna, PW2 Shri Babu Lal both are eye witnesses, PW3 Shri Jagdishwar Mishra Tahsildar who recorded dying declaration, PW4 Dr. Pramod Kumar who attended deceased Shri Jhamman at the time of his admission in the hospital in seriously injured condition. PW5 Shri Krishna Singh Sengar, Investigating Officer (for brevity I.O.), PW6 Dr. D.S. Parmar who conducted autopsy of the dead body of Shri Jhamman. PW7 Shri Chatrapal Singh who executed inquest report of dead body and relevant documents for Post Mortem and PW8 Constable Shri Ganga Charan who brought the dead body of Shri Jhamman to mortuary for postmortem. 9. Accused examined lone witness DW1 Shri Bhagwan Das. 10. Appellant accused Kallu @ Ugrasen Singh submitted an application to declare him juvenile, conflict with law and his application was allowed on 03.01.2017 and appellant Kallu @ Ugrasen Singh was declared juvenile because on the date of crime i.e. on 26.10.1985 accused was under the age of 16 years. 11. Learned counsel for the accused appellant and learned A.G.A. agreed to advance submissions, that's why we have decided to hear the arguments and dispose off the appeal on merit. Consequently, we have heard Shri M.S. Chandel, learned counsel for the appellant, Shri Mahendra Singh Yadav, learned A.G.A. for State and Shri M.P. Yadav, learned counsel for the complainant and gone through the entire evidence tendered by the parties. We have also examined the judgment of learned Trial Court. 12. Consequently, we have heard Shri M.S. Chandel, learned counsel for the appellant, Shri Mahendra Singh Yadav, learned A.G.A. for State and Shri M.P. Yadav, learned counsel for the complainant and gone through the entire evidence tendered by the parties. We have also examined the judgment of learned Trial Court. 12. Before entering into the merit of the case, we would like to refer the gist of the evidence adduced by the parties. 13. According to prosecution PW1 Shri Chunna is an eye witness, who has stated on oath that on the date of occurrence, he was reaping fodder in the field of Gaya Lohar. Babu Lal and the deceased Jhamman were coming from the fields, when both reached at the boundary of Gaya Lohar's field, accused Indrasen and Surajdin exhorted to accused Kallu @ Ugrasen Singh to kill Shri Jhamman. Thereupon accused Kallu fired upon deceased Shri Jhamman Yadav, which hit him on the back. These three accused were coming behind deceased, being injured Jhamman tried to escape from the place of occurrence, but fell near the field of Ram Kumar. Thereupon accused Kallu @ Ugrasen Singh snatched licensed gun and 20 cartridges from Jhamman and ran away with other co-accused. Witness further narrated that he himself, Ram Kumar Verma and Babu Lal saw the occurrence. 14. In the cross-examination PW1 reiterated the facts which were narrated in his chief. 15. PW2 Shri Babu Lal is an eye witness and complainant who was coming with Shri Jhamman from the fields. Witness has stated on oath that he was coming with deceased Jhamman from the fields. Accused Kallu @ Ugrasen Singh, Indrasen and Surajdin were also coming behind them, when both complainant and deceased reached near the field of Shri Gaya Lohar, accused Indersen and Suraj Deen exhorted to accused Kallu @ Ugrasen Singh to kill Jhamman, whereupon accused fired upon deceased Jhamman, which hit in the back of Jhamman. Jhamman tried to escape from the place of occurrence but he failed and fell down near the field of Shri Ram Kumar. 16. PW2 Shri Babu Lal further narrated that he tried to raise alarm, but accused Kallu threatened him to kill that's why he could do nothing. Later on, accused Kallu @ Ugrasen Singh snatched licensed gun and 20 cartridges from Shri Jhamman and ran away from the place of occurrence. 17. 16. PW2 Shri Babu Lal further narrated that he tried to raise alarm, but accused Kallu threatened him to kill that's why he could do nothing. Later on, accused Kallu @ Ugrasen Singh snatched licensed gun and 20 cartridges from Shri Jhamman and ran away from the place of occurrence. 17. PW2 Shri Babu Lal further narrated that he himself with other persons brought Shri Jhamman from place of occurrence, to his house situated in Village Budhauli through the bullock cart of Shri Subrathi and scribed Exhibit Ka-1 and headed towards P.S. Baberu with injured Shri Jhamman, where he submitted Exhibit Ka-1, pursuance of which check First Information Report Exhibit Ka-2 was recorded against accused at about 07:50p.m. 18. In cross examination, PW2 Shri Babu Lal stated that injured Shri Jhamman was brought to P.S. Baberu through bullock cart and after registration of the F.I.R. injured and he himself with police constable proceeded for civil hospital Banda, with a bus/truck where he reached about 08:00p.m. It is also stated by this witness that when deceased was admitted in hospital, he himself and other villagers were present in the hospital and were talking with Shri Jhamman Yadav and also told him that who had fired upon him and how. Witness further stated in his cross examination that he has written Exhibit Ka-1 with the assistance of Police Inspector. Later on in reply to the question of the court, witness clarify that he has written only this fact that accused persons ran away with gun and cartridge on the advice of Sub-inspector. Witness explained that due to depression he failed to scribe the above noted facts. Witness further stated that accused Kallu @ Ugrasen Singh fired upon the deceased from the distance of 4 or 5 paces. 19. PW3 Shri Jagdhiswar Mishra, Tehsildar stated on oath that upon receiving information Exhibit Ka-3 from Dr. Pramod Kumar, he had visited hospital and recorded the dying declaration of Shri Jhamman Yadav. It is further stated that Dr. Pramod Kumar gave a certificate before and after recording of the dying declaration which is Exhibit Ka-6 and 4 on record. 20. PW3 further stated that when he had recorded dying declaration of Shri Jhamman, he was in a full sense and was replying just like a prudent man. There was no one except Doctor besides the injured Shri Jhamman, when he has recorded the dying declaration. 20. PW3 further stated that when he had recorded dying declaration of Shri Jhamman, he was in a full sense and was replying just like a prudent man. There was no one except Doctor besides the injured Shri Jhamman, when he has recorded the dying declaration. Dying declaration is in his hand writing which is Exhibit Ka-3. 21. PW4 Dr. Pramod Kumar firstly attended the injured Jhamman on 26.10.1984 at about 09:00 p.m. and prepared medical report Exhibit Ka-5, according to which following two injuries were found on the person of Shri Jamman Yadav;- "1. Gunshot wound of entry - 1.5cm x 1.5cm x cavity deep on right side of back 16cm below inferior angle of scapula. Blackening, charing and tattooing was present, injury kept under observation advised x-ray of abdomen and chest. 2. Lacerated wound 1cm x 0.2cm x scalp deep on right side of front of head (wrongly written as chest, but clear in the statement) 2cm above the right eye brow. 22. Witness opined that the injury no. 2 was caused by hard and blunt object, whereas injury no. 1 kept under observation referred to surgeon, which was caused by fire arm advised X-ray of abdomen and chest. Both injuries were fresh. 23. Doctor also stated on oath that he had written a letter to Tehsildar for recording dying declaration, when the dying declaration of deceased Shri Jhamman was being recorded he was present there all around from beginning to end. In the cross-examination Doctor opined that there were charing, tattooing and blackening present on the gunshot injury. If there is charing, blackening and tattooing present on any gun shot wound, then it may be caused from the distance of about 1 and 2 feets. These injuries could not be caused from a distance of 10 or 5 paces. Injury no 2 could be caused by stick. After occurring congestion in the lungs there can be obstruction in respiration and unconsciousness may also prevailed. Unconsciousness depend upon the congestions degree and condition. Doctor admitted that he has not written in the certificate that the injured was mentally fit but recorded that he was in full sense, which connotes that the injured was mentally fit to give his statement. 24. Unconsciousness depend upon the congestions degree and condition. Doctor admitted that he has not written in the certificate that the injured was mentally fit but recorded that he was in full sense, which connotes that the injured was mentally fit to give his statement. 24. PW5 Shri Krishna Singh Sengar is the Investigating Officer who stated on oath that after registration of the crime, he had started investigation and recorded the statement of injured Shri Jhamman. Witness has submitted the true copy of the statement of Shri Jhamman recorded under Section 161 Cr.P.C. as Exhibit Ka-6. Witness further stated that on the same day he had recorded the statement of Shri Babu Lal and thereafter he proceeded for the place of occurrence and reached there in the night, where he recorded the statement of witnesses Shri Chunna, Kallu and others. Witness further stated that he prepared site plan which is Exhibit Ka-7. He took simple and blood soaked soil and sealed it in two boxes separately and prepared the memo which is Exhibit Ka-8. He also taken in possession one stick which was found at the place of occurrence and the memo of recovery was prepared which is Exhibit Ka-9. Injured was transported from the place of occurrence on a cart on which the blood was found thats why he had taken a strip of wood of cart and prepared a memo which is Exhibit Ka-10. The gun licence of deceased Shri Jhamman Lal Yadav was also taken into police custody and prepared a memo which is Exhibit Ka-11. The licence of gun of Shri Jhamman, which was taken in police custody is Exhibit-1. After completion of the investigation, he has submitted charge sheet in the Court of competent jurisdiction which is Exhibit Ka-12. 25. In cross-examination witness admitted that he has not recorded the statement of Constable Clerk Ganga Charan, Doctor who has first attended to injured Shri Jhamman and conducted postmortem of the dead body of deceased Shri Jhamman. It is also admitted that he has not disclosed the time when he has recorded the statement of injured Shri Jhamman. There were no date under the signature of Circle Officer on the case diary. The place of occurrence was inspected with the assistance of complainant Shri Babu Lal. It is also admitted that he has not disclosed the time when he has recorded the statement of injured Shri Jhamman. There were no date under the signature of Circle Officer on the case diary. The place of occurrence was inspected with the assistance of complainant Shri Babu Lal. It is also stated by this witness in his cross-examination that he has not found any empty cartridge, wades and pillets from the place of occurrence. The chemical examiner report has not been received thats why the simple and blood soaked soil and stick of wood is not available in the Court. The police remand of accused-appellant Kallu @ Ugrasen was taken but nothing was recovered at his pointing. 26. PW6 Dr. D.S. Parmar conducted postmortem upon the body of Shri Jhamman on 27.10.1984 at 04:00 p.m. and prepared postmortem report Exhibit Ka-13, and found two antimortem injuries on the dead body which are as follows. 1. Gunshot wound of entry 1.5cm x 1.5cm x cavity deep on right side of back 16cm below scapula. 2. Lacerated wound 1cmx 0.2cm skin deep on right side of head 1½ cm above right eye brow. 27. In the internal examination it was found that lungs were congested, heart was empty, peritoneum was ruptured. There was one litre simple and clotted blood. 100gm semi-digested meal was found in the stomach, faecal matter and gas was found in the small intestine. Mesentery was ruptured, from where one metallic bullet was recovered. Right kidney was ruptured in two pieces where blood was found all around the kidney. Urinary bladder was empty. Doctor further stated that the deceased was died due to gunshot injury which caused shock and haemorrhage. The material and clothes which were found on the dead body were sealed in a bundle and was handed over to the constable who brought the dead body for postmortem. Metallic bullet is Exhibit-2. 28. In cross-examination PW6 Dr. Parmar stated that the bullet which was recovered from the body of deceased Jhamman was of rifle. The injury which was caused to deceased Jhamman might caused unconsciousness after one or half hour. It may be that the deceased remained unconscious till his death. Injury no. 2 may be caused by a lathi (stick) or by fall on the hard surface. Both injuries were one and half days old. 29. The injury which was caused to deceased Jhamman might caused unconsciousness after one or half hour. It may be that the deceased remained unconscious till his death. Injury no. 2 may be caused by a lathi (stick) or by fall on the hard surface. Both injuries were one and half days old. 29. PW7 Chatrapal Singh, S.I. of Police Station Kotwali Banda has stated on oath that on 27.10.1984, memo in the form of the letter was received in Kotwali from the Civil Hospital for execution of inquest report of deceased Jhamman at about 02:15a.m. Thereafter, he visited to civil hospital with two constables, the memo which sent from the civil hospital is on record and is Exhibit Ka-14. 30. Witness further stated that he has started execution of inquest report at about 12:30 p.m. which is in his hand writing and is Exhibit Ka-15. Witness further stated that he has prepared photo of dead body Exhibit Ka-17, sample of seal Exhibit Ka-18, Chalan of dead body Exhibit Ka-19, letter to C.M.O. Exhibit Ka-20 and hand over the dead body to Constables namely Chhangu Singh and Babu Lal. 31. In cross-examination witness stated that he had not received F.I.R. of this case from police station Baberu, he had not seen the injury report. It is wrong to say that he has prepared panchayatnama after inquiry of sections from Police Station Baberu. 32. According to prosecution PW8 Shri Ganga Charan has recorded check F.I.R. Exhibit Ka-21 in pursuance of the F.I.R. submitted by PW2 Shri Babu Lal Exhibit Ka-1. Witness further stated that the registration of the crime was recorded in the General Diary No. 29 time 07:30p.m. under Sections 307, 394 I.P.C., copy of G.D. is Exhibit Ka-22. It is further stated by this witness that on 28.10.1984 after receiving the postmortem report the case was altered under Sections 302, 394 I.P.C. and this fact was recorded in G.D. No. 11 time 11:30 p.m. dated 28.10.1984 Exhibit Ka-23 on the record. 33. In cross-examination PW8 stated on oath that it is wrong to say that the first copy of F.I.R. prepared by PW2 Shri Babu Lal was torned and another F.I.R. was recorded in the connivance of Sarv Shri Vijay Pal Singh, Chhatrapal Singh and Uday Veer Singh. 34. 33. In cross-examination PW8 stated on oath that it is wrong to say that the first copy of F.I.R. prepared by PW2 Shri Babu Lal was torned and another F.I.R. was recorded in the connivance of Sarv Shri Vijay Pal Singh, Chhatrapal Singh and Uday Veer Singh. 34. DW1 Shri Bhagwan Das stated on oath that he has been posted as Additional Judicial Assistant in the office of District Magistrate, Banda and he has brought special report of Case Crime No. 285 of 1984, under Sections 307, 394 I.P.C., P.S. Baberu, District Banda. He further stated that Judicial Assistant Shri Jugal Kishore Tripathi has signed upon this special report with date 29.10.1984, there is no date under the signature of Shri Girdhari Lal, Incharge District Magistrate. 35. In cross-examination DW1 stated that he does not know whether there is any register maintained in the office or residence of District Magistrate for registering the special report. This special report was endorse to Judicial Assistant by the District Magistrate but the signature was of incharge District Magistrate Shri Girdhari Lal and there is no date under the signature of incharge District Magistrate. Special report also sent to S.D.M., S.P. and C.O. In the absence of District Magistrate, Additional District Magistrate exercised the powers of District Magistrate. 36. Learned counsel for the accused-appellant submitted that PW1 Shri Chunna and PW2 Shri Babu Lal are partisan witnesses and they have not seen occurrence and are planted witnesses. There are so many material contradictions in the evidence of these two witnesses. It is also submitted that there was no motive to kill Shri Jhamman because there was no enmity with the deceased. There were enmity between the accused Kallu and witness Babulal, in the light of these facts and circumstances there was no need to eliminate deceased Shri Jhamman Yadav. It is also submitted that the prosecution fails to ascertain the place of occurrence and nothing was recovered from accused-appellant Kallu @ Ugrasen, whereas he was taken into police custody in pursuance of the order of the Court for recovery of looted gun, cartridges and fire arm used in the offence. It is further submitted that the F.I.R. was recorded with the consultation of Police Officials thats why the F.I.R. is not reliable. 37. It is further submitted that the F.I.R. was recorded with the consultation of Police Officials thats why the F.I.R. is not reliable. 37. We afraid to concede with the submission of learned counsel because PW2 in reply of the question of learned counsel in cross stated that he torn and threw away the first F.I.R. which was recorded by his own will, but later on the Sub-inspector of Police asked him to record other application in which he recorded that the accused snatched gun and cartridge from injured Jhamman and ran away on the advice of S.I. But the appellant did not clarify this from Investigator PW5 whether he assisted to complainant in preparation of application in the form of F.I.R. Moreover, appellant did not disclose how it has adversely affected him. Thus if any assistance was given by police to complainant, it hardly adversely affect the appellants 38. Per contra, learned Additional Government Advocate submitted that both eye witnesses PW1 and PW2 supported the statement of each other and on material points. These witnesses are natural and are reliable because they have seen the entire episode of murder of Shri Jhamman. Moreover, deceased Jhamman was the cousin of PW2 and there were enmity between both parties thats why accused have a strong motive to eliminate Shri Jhamman because he was elder and having a licensed gun in his name. 39. As far as the question of motive relates, it is fully proved by the evidence of PW1 and PW2 that there was litigation among the both parties regarding the property and deceased Jhamman was elder than witness PW2 Babu Lal, who was with deceased Jhamman at the time of occurrence. 40. In the light of rival submissions, we have examined the statement of PW1 Shri Chunna and PW2 Shri Babu Lal. PW1 Shri Chunna claimed that he was reaping fodder for the cattles in the field of Shri Gaya Lohar, where accused Kallu @ Ugrasen Singh fired upon deceased Jhamman Lal and he has seen the entire episode of murder of Jhamman. It is further narrated by this witness that deceased Jhamman Yadav was coming with his cousin PW2 Babu Lal Yadav and the accused Kallu @ Ugrasen Singh along with other accused who have been acquitted, was following deceased Jhamman Yadav. It is further narrated by this witness that deceased Jhamman Yadav was coming with his cousin PW2 Babu Lal Yadav and the accused Kallu @ Ugrasen Singh along with other accused who have been acquitted, was following deceased Jhamman Yadav. When deceased reached at the field of Shri Gaya Lohar, accused Kallu @ Ugrasen Singh on exhortation of other co-accused fired upon Jhamman Yadav. When Jhamman Yadav tried to escape to save himself from the place of occurrence he received gunshot injury in his back and fell down in the field of Shri Ram Kumar Mali. PW2 Shri Babu Lal deposed that he was with deceased Jhamman Yadav, deceased was behind him and the accused Kallu @ Ugrasen Singh along with other co-accused was following to Jhamman Yadav. When both reached at the field of Gaya Lohar, accused Kallu @ Ugrasen Singh on the exhortation of other co-accused fired upon Jhamman Yadav, which hit him on the back and Jhamman fell down in the field of Ram Kumar near the chack road. From the evidence of PW1 and PW2, it is evident that when deceased Jhamman was heading towards his residence and when he reached at the field of Gaya Lohar, accused Kallu @ Ugrasen Singh fired upon him from behind. Since PW2 was ahead of Jhamman Yadav he might not perceive that when accused Kallu @ Ugrasen Singh fired upon deceased, what was the distance between Shri Jhamman and accused Kallu @ Ugrasen Singh. Undoubtedly, these two witnesses of fact are the relatives of deceased Jhamman Yadav may be the partisan witnesses, but despite of all this, it can not be said that they depose against the accused due to enmity or being a relative of the deceased, because both are the natural witness. More over it is not possible that the relative witness shall spare the real culprit and rope some one other due to enmity or partisan. PW2 stated on oath that he had gone with Jhamman Yadav to see his fields whereas PW1 Shri Chunna Yadav stated on oath that he was reaping and collecting fodder for his cattle's. Thus the presence of these two witnesses at the time and place of occurrence is quite natural and it cannot be said that they are chance witnesses or they have not seen the occurrence as alleged by the prosecution. 41. 41. It is submitted by the learned counsel for the appellant that police had taken into custody accused-appellant but despite this fact, nothing incriminating material was recovered at the pointing out of the accused-appellant. It is true that the accused-appellant was taken into custody under the order of the learned Trial Court. In the facts and circumstances of the case, if nothing incriminating was recovered from the accused-appellant then it could not adversely effect the version of the prosecution because the prosecution adduced direct evidence against accused-appellant. 42. Learned counsel for the accused-appellant submitted that from the evidence of PW1 and PW2, prosecution could not ascertain the place of occurrence. We do not agree with the submission of learned counsel for the accused-appellant, because both the eye witnesses unequivocally proved that the accused-appellant fired shot upon the deceased Jhamman near the field of Shri Gaya Lohar. This fact has been ascertained by PW5 Shri Krishna Singh Sengar who prepared site plan. We have perused the site plan which reveals that the accused-appellant fired shot upon Jhamman in the way at the earth bank of the field of Shri Gaya Lohar and fell down in the field of Shri Ram Kumar near the xing of both paths after receiving gunshot injury. Thus the distance between the place where deceased was assaulted and hit by bullet and where he fell down is negligible. Moreover, Investigating Officer collected the sample of simple and blood stained earth from the place where the deceased fell down. Thus the place of occurrence is identifiable and fixed and there is nothing on record to suggest that the place of occurrence which is alleged by the prosecution is not ascertainable and the occurrence took place some where else. 43. Learned counsel for the accused-appellant drawn our attention towards contradiction occurred in the statement of PW1 Chunna and PW2 Babu Lal. No doubt there are few contradiction but these contradictions are immaterial in nature, the contradictions which are not material and which do not affect the root of the case, would not demolish the case of the prosecution. Both witnesses supported prosecution case on material points, date, time, place of occurrence, manner of assault, arm used by appellant/accused and the name of the perpetrator of crime. 44. Both witnesses supported prosecution case on material points, date, time, place of occurrence, manner of assault, arm used by appellant/accused and the name of the perpetrator of crime. 44. Both these witnesses proved that when deceased Shri Jhamman was proceeding towards his house after visiting the agricultural fields along with PW2 Babu Lal, accused-appellant Kallu @ Ugrasen fired shot upon Jhamman from behind through fire arm, which hit on the back of Shri Jhamman and when Shri Jhamman tried to escape from the place of occurrence he fell down in the field of Shri Ram Kumar near the xing where two paths heading from east to west and north to south, meet. 45. It is also submitted that PW1 and PW2 stated in their deposition that upon exhortation of Indrasen Singh and Surajdeen, accused Kallu @ Ugrasen fired upon deceased Shri Jhamman, whereas these facts were not narrated in the F.I.R. Exhibit Ka-1. Thus both witnesses improved their statement to rope other accused-persons. This fact shows that these witnesses are not reliable and relying the evidence of these witnesses accused should not be hold guilty. We do not find substance in the submission of learned counsel for the accused-appellant, because co-accused Indersen Singh and Surajdeen has already been acquitted by trial Court because trial Court found that their names were implicated after a considerable delay. Moreover, the role assigned to these two acquitted accused was that, they have exhorted to accused-appellant Kallu @ Ugrasen to kill deceased Shri Jhamman Yadav, in addition to no other overt act was assigned to them. Thus the improvement made by these two fact witnesses in their statement is immaterial in the present circumstances and scenario of our country. Moreover the principle of "falsus in uno, falsus in omnibus" is not applicable in over country. 46. In the case of Gangadhar Behera Vs. State of Orrisa (2002) 8 SCC 381 , Hon'ble The Apex Court opened that the principle of falsus in uno, falsus in omnibus is not applicable in India. Thus if the witness PW1 and PW2 improved their statement and roped acquitted accused persons Indrasen and Surajdin, who were acquitted by the learned trial Court, cannot be termed as liar because no witness come across whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries and embellishment in the evidence. Thus if the witness PW1 and PW2 improved their statement and roped acquitted accused persons Indrasen and Surajdin, who were acquitted by the learned trial Court, cannot be termed as liar because no witness come across whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries and embellishment in the evidence. If few accused have been acquitted due to such improvement, then the witness cannot be termed as a liar and his statement could be relied against the other accused, if that is reliable on a particular point. 47. In the light of the above noted observation of Hon'ble The Apex Court, it is true that two accused have been acquitted by the learned trial Court because their names were not mentioned in the F.I.R. which was recorded promptly and later on their names were mentioned in the statement of these two witnesses under Section 161 Cr.P.C. The name of accused appellant Kallu @ Ugrasen Singh was mentioned in the F.I.R. and in the statement under Section 161 Cr.P.C. and was proved in the court on oath that's why the accused/appellant is not entitled to get the benefit of acquittal of co-accused. 48. In the last, learned counsel for the accused-appellant submitted that the dying declaration which is relied upon by learned Additional Session Judge is not free from doubt. This dying declaration could not be relied on, and on the basis of tainted dying declaration accused-appellant could not be held guilty and is entitled to be acquitted. 49. We do not find weight in the submission of learned counsel, because dying declaration Exhibit Ka-3 was recorded by Tehsildar Shri Jagdishwar Mishra who is a public servant and free from all type of bias against the appellant/accused. Shri Jagdishwar Mishra proved that he has received information from the attending Dr. Pramod Kumar for recording dying declaration which is Exhibit Ka-2. In pursuance of Exhibit Ka-2, he had visited civil hospital and recorded the dying declaration of injured Shri Jhamman in the presence of Dr. Pramod Kumar who gave his certificate, before and after recording dying declaration Exhibit Ka-3 of this nature, that the injured was in full sense. Doctor explained this word "full sense" that it means that the injured was fully mentally fit to give his statement. Pramod Kumar who gave his certificate, before and after recording dying declaration Exhibit Ka-3 of this nature, that the injured was in full sense. Doctor explained this word "full sense" that it means that the injured was fully mentally fit to give his statement. Thus from the evidence of PW3 Jagdishwar Mishra Tehsildar scriber of the dying declaration of Exhibit Ka-3 and PW4 Dr. Pramod Kumar who gave certificate purporting that injured was in full sense to give his statement proved that at the time of recording of dying declaration injured Shri Jhamman was in full sense and was mentally fit to answer the questions put forth by Tehsildar Shri Jagdishwar Mishra. Exhibit Ka-3 dying delcaration proved by Shri Jagdishwar Mishra is fully reliable and conviction could be based on it. Appellant/accused failed to cite any fact or circumstances which shows that the dying declaration of deceased Shri Jhamman was procured under any mysterious circumstances or effect. 50. Learned counsel for the appellant submitted that offence under Section 394 I.P.C. is not proved. We are not in agreement with the submission of learned counsel for the accused-appellant because PW1 and PW2 unequivocally stated on oath and proved that when deceased Jhamman fell down in the field of Shri Ram Kumar, accused-appellant Kallu @ Ugrasen snatched double barrel gun and 20 cartridges from Shri Jhamman and ran away. Nothing could be abstracted from these witnesses in favour of the appellant. Though gun and cartridges were not recovered, inspite of this it cannot be said that gun and cartridges were not looted by accused-appellant. 51. The evidence of DW1 does not help any way to appellant because the special report was submitted to the higher authorities well within time, though no date was mentioned under the signature of the Incharge District Magistrate. 52. No other argument advanced by learned counsel for the accused-appellant. 53. In the facts and circumstances and discussion noted above, we are of the considered view that the accused-appellant Kallu @ Ugrasen caused grievous injury to Shri Jhamman on 26.10.1984 at 05:00 p.m. by firing shot which was sufficient to kill Jhamman and consequently Shri Jhamman died on 27.10.1984 at about 02:30 a.m., 9:30 hours in the civil hospital, Banda. He also snatched gun and 20 cartridges from the deceased when he fell down in the field of Shri Ram Kumar in the injured condition. He also snatched gun and 20 cartridges from the deceased when he fell down in the field of Shri Ram Kumar in the injured condition. Thus the offence against accused-appellant proved beyond reasonable doubt and is liable to be held guilty. 54. Thus in the light of above noted discussion in the foregoing paragraphs the conviction recorded by the learned special Judge Dacoity Affected Area is well considered and free from any infirmity and does not warrant any interference. Since the appellant has been declared juvenile, hence the sentence awarded by the learned trial Judge is hereby set aside. 55. Since, we have declared accused Kallu @ Ugrasen Singh as juvenile on 03.01.2017. Hence, in view of Section 21 of the Juvenile Justice (Care and Protection of Children) Act, 2015, this matter is being sent to the Children's Court, Banda to deal with the matter according to law for awarding sentence. 56. Accordingly the appeal is partly allowed.