SAMARENDRA PRATAP SINGH, J.:–The sole appellant has been convicted by judgment dated 01.2.2010 and sentenced to life imprisonment along with a fine of Rs. 10,000/- and in default to undergo further simple imprisonment for one year vide sentence, dated 01.2.2010 passed by learned Additional District and Sessions Judge-III, West Champaran, Bettiah. 2. The prosecution case as unfolding in the fardbeyan of Sheikh Abdul Hai of village-Sukhlahi, P.S. Mainatand, District-West Champaran recorded by O/c of Mainatand Police Station on 05.2.1995 at 4:30 P.M. at village-Sukhlahi, in short, is that the informant has stated that his brother Sheikh Nathuni (deceased) had gone to the mosque for offering Namaj of Johar (mid-day) and after offering Namaj he had slept in open sehan of the mosque. The mason and labourer were working in the mosque. At about 2:30 P.M., accused nos. (1) Sheikh Hayat; (2) Sheikh Mister; (3) Sheikh Wakil; (4) Sheikh Hasan; (5) Sheikh Gasul; all the three sons of Sheikh Farman, (6) Sheikh Hakim; Sheikh Mustaque; and (8) Sheikh Afsar, all residents of village Sukhlahi, P.S. Mainatand were carefully eyeing the surrounding areas and watching the people on the road situated below the sehan of the mosque. When they did not see people around, Sheikh Hayat and Sheikh Mister entered into the sehan of the mosque. The accused standing near the sehan of the mosque, exhorted Sheikh Hayat to kill informant’s brother Sheikh Nathuni, who fired at his chest. On hearing the sounds of firing, as the informant rushed to the mosque, he saw the accused persons firing in the air and fleeing towards east. When he arrived at the mosque, the mason Abdul Hafiz (not examined), Sheikh Mustafa (not examined) and labourers Sheikh Dua Hakim (P.W.-1) and Tejamul Dewan (P.W.-3) stated that from amongst the accused, Sheikh Hayat and Sheikh Mister surreptitiously came near the sehan of the mosque, while others remained on the road. On being exhorted by his associates, Sheikh Hayat shot dead Sheikh Nathuni. The accused persons thereafter fled towards the east firing in the air. 3. The reason behind the occurrence is that informant’s brother used to read verses and religious poems of holy quran in the morning on loudspeaker to wake up the persons during ‘Roja’ to take sehari (pre dawn meals dining fast), which was protested by the accused persons, as it disturbed their sleep. 3. The reason behind the occurrence is that informant’s brother used to read verses and religious poems of holy quran in the morning on loudspeaker to wake up the persons during ‘Roja’ to take sehari (pre dawn meals dining fast), which was protested by the accused persons, as it disturbed their sleep. As the informant?s brother did not heed to the protest, the accused persons with a common intent killed his brother. 4. On the basis of fardbeyan, Mainatand P.S. Case No. 0004 dated 05.2.1995 was registered at about 9:30 P.M. on the same day under Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act. 5. The police in course of investigation seized the cartridges and blood soaked clay from the sehan of the mosque. The police also took re-statement of the informant and other witnesses. The dead body was sent for postmortem examination and after obtaining the postmortem report, the police submitted charge sheet under section 302/34 against 8 accused persons, namely, (1) Sheikh Hayat (appellant); (2) Sheikh Gasul; (3) Sheikh Wakil; (4) Sheikh Hasan; (5) Sheikh Mustaque; (6) Sheikh Hakim; (7) Sheikh Mister; and (8) Sheikh Afsar. The learned Magistrate took cognizance of offence and committed the case to the Court of Sessions for trial. The charges were framed against the accused under section 302/34 of the Indian Penal Code to which they pleaded not guilty and claimed to be tried. 6. The prosecution in support of its case examined eight witnesses who are as follows: P.W. 1 Sheikh Dua Kalam (mason), P.W. 2 Sheikh Nurul Hoda, P.W. 3 Tejamul Dewan, P.W. 4 Sheikh Abdul Hai (informant), P.W. 5 Sheikh Dua Hakim (labourer), P.W. 6 Dr. Ashok Kumar Singh, P.W. 7 Mustafa Sheikh, P.W.8 Abdul Hafeej. Out of these eight witnesses, P.W. 4 Sheikh Abdul Hai has claimed to have arrived soon after the occurrence and had seen the appellant standing with a rifle near the dead body of his brother. P.Ws. 1, 2, 3, 5, 7 and 8 were labourers and masons, engaged in mosaic work in the mosque at the relevant time and have claimed to have seen the occurrence. P.Ws. 1 and 2 are witness to the seizure lists. P.W. 6 Dr. Ashok Kumar Singh is said to have conducted postmortem on the dead body of the deceased. He opined that the deceased died due to fire arm injury. P.Ws. 1 and 2 are witness to the seizure lists. P.W. 6 Dr. Ashok Kumar Singh is said to have conducted postmortem on the dead body of the deceased. He opined that the deceased died due to fire arm injury. He found charring marks around the wound. He also found semi digested food and rigor mortis present. According to him, the death occurred within 36 hours from the time of examination. 7. The trial court on consideration of materials on record came to the finding that there is no sufficient materials to come to a conclusion that other accused persons shared common intention with the appellant Sheikh Hayat to commit murder of the deceased. As such the trial court acquitted the other seven other accused persons facing trial, while convicting the present appellant under section 302 IPC. The learned trial court convicted the appellant relying upon the evidence of P.Ws.1, 2, 3, 4, 5 as well as postmortem report and evidence of Dr. Ashok Kumar Singh, P.W. 6. 8. Mr. Kanhaiya Prasad Singh, learned senior counsel appearing for the appellant submits that the trial court failed to take composite view of the matter and instead relied upon the evidence of the witnesses in a mechanical manner. According to learned counsel, the Court ought to have considered the broad probabilities of the case which would create a doubt whether the witnesses had actually seen the occurrence. Elaborating his submission, learned counsel submits that the postmortem report which is an important limb of the prosecution case does not support the prosecution story. According to the prosecution case, the deceased was shot dead at 2:30 P.M. and the postmortem was conducted on the following day i.e. 06.2.1995 at 2:00 P.M. in about 24 hours. It was a Ramjan month and one of the witnesses, namely, P.W. 2 had stated that the deceased was ‘fasting’ and had taken sehri (light food before fasting) early in the morning between 4:30 A.M. to 5:00 A.M. However, the doctor P.W. 6 found semi digested food particle in the stomach of the deceased, which shows that the deceased had taken food within two to three hours of being murdered. This falsifies the prosecution case that the occurrence took place at 2:30 P.M. on 05.2.1995 as the deceased had kept Roza and would be assumed to have not taken any food after 5:00 A.M. till time of his death. This falsifies the prosecution case that the occurrence took place at 2:30 P.M. on 05.2.1995 as the deceased had kept Roza and would be assumed to have not taken any food after 5:00 A.M. till time of his death. He submits that as per Modi Jurisprudence, the food items taken by an individual would stand discharged within 4 to 6 hours. Furthermore, if a person is fired upon by a rifle from a point blank range on his chest, some thread of cloth and wires of the cartridges would also be found in the wound. However, the doctor did not find any remnants of cloth or wire inside the wound of the deceased, which also creates doubt in regard to the manner of occurrence as alleged by the prosecution. He next submits that the mat on which the deceased was sleeping which contained a hole alleged to have been caused by bullet was produced on 18.4.1995 after two months of the occurrence which makes the whole episode suspicious as to why the same was not seized immediately after the occurrence. It was further submission of learned counsel for the appellant that as per P.W. 3, the house of the informant was 5 to 6 kathas south to the mosque, where the deceased is alleged to have been murdered. He submits that P.W. 4 Tejamul Dewan admitted in paragraph-17 of his evidence that between house of the deceased and mosque, there are houses of 7-8 persons, however, none of them are witness in this case. He also submits that P.W. 2 in his evidence stated that he had put his signature on both the seizure lists on the same day, however, Exhibit-1 and 1/1 and Exhibit-2 would show that P.W. 2 signed on two different dates i.e. 05.2.1995 and 18.4.1995. 9. Per contra, counsel for the State submits that there were sufficient materials to convict the appellant under section 302 IPC and as such there is no infirmity in the judgment of the trial court convicting the appellant under section 302 IPC. He submits that P.Ws. 1, 2, 3 and 5 were doing mosaic work at the relevant time and their presence has not been disputed. P.Ws. 1, 2, 3 as well as P.W. 4 have consistently supported the prosecution case. He submits that P.Ws. 1, 2, 3 and 5 were doing mosaic work at the relevant time and their presence has not been disputed. P.Ws. 1, 2, 3 as well as P.W. 4 have consistently supported the prosecution case. Since these witnesses are of the same village and were doing mosaic work, in the mosque, there presence was but natural. He submits that the house of P.W. 4 (informant) was very close to the place of occurrence, who came running to the spot on hearing sound of firing. He saw the appellant armed with rifle and his brother dead which unfailingly points towards the heinous crime committed by the accused. Learned counsel submits that some of the discrepancies pointed out by the appellant in no way affect the substantive prosecution case of murder against the appellant. Furthermore, there is no positive evidence to come to the conclusion that the deceased had not taken any food after 5:00 A.M. in the morning and as such finding of semi digested food in the stomach of the deceased would not cut at the root of the prosecution case as there is no evidence to establish that the deceased did not take any food after 5:00 A.M. 10. We have heard learned counsel for the parties and perused the materials on record. The issue for consideration is whether the prosecution has been able to bring home the charge of murder against the appellant beyond all reasonable doubt. The informant Sheikh Abdul Hai, who is the own brother of the deceased, has fully supported the prosecution case, as stated in the FIR. In his evidence he stated that on 05.2.1995 at 2:30 P.M. he was going towards the mosque. At about that time he heard gun shot of the accused persons standing near the road. He went running to the mosque and saw Sheikh Hyat holding a country made rifle in his hand. One of the accused jumped from the sehan and fled with other accused who were standing on the road. When the informant reached the sehan of the mosque, he saw his brother lying, having received bullet injury on the left side of the chest. He stated that mosaic work was going on at the mosque which was supervised by Sheikh Dua Kalam, P.W. 1 and Sheikh Nurul Hoda, P.W. 2. When the informant reached the sehan of the mosque, he saw his brother lying, having received bullet injury on the left side of the chest. He stated that mosaic work was going on at the mosque which was supervised by Sheikh Dua Kalam, P.W. 1 and Sheikh Nurul Hoda, P.W. 2. The other labourers, namely, Sheikh Dewa Hakim, P.W.5, P.W. 3 P.W.7 and P.W.8 were working as labourers and masons. The aforesaid persons disclosed that Sheikh Hyat had fired at the chest of his brother with country made rifle on the order of Sheikh Vakil. P.W. 1 Sheikh Dua Kalam (mason), P.W. 2 Sheikh Nurul Hoda, P.W. 3 Tejamul Dewan, P.W. 4 Sheikh Abdul Hai (informant) and P.W. 5 Sheikh Dua Hakim consistently stated that they were engaged in mosaic work at the relevant time in the mosque. All of a sudden the accused persons came near the road and on the order of Sheikh Vakil, the appellant Sheikh Hyat shot from his rifle on the chest of the deceased from point blank range causing his instant death. Besides this P.W. 1 and P.W. 2 also stated that the police came and seized the bullet as well as blood soaked clay from near the place of occurrence and prepared seizure list on which they have put their signature which was marked at Exhibit-1 and Exhibit-1/1. P.W. 2, who stated that the police prepared seizure list of the bullet ridden mat on which the deceased was sleeping, as late as on 18.4.1995 and on which he signed as seizure list witness. As per the postmortem report the deceased had sustained one injury on his chest and there was charring mark around the wound. The doctor in his evidence also stated that the deceased died on account of gun shot injury on his chest. 11. The case of the defence before the trial court was that the deceased was killed at 7:30 A.M. by unknown criminals and not exactly on 5:30 A.M. as alleged by the prosecution case. The main case of the defence is that the deceased did not die at 2:30 P.M. as alleged by the prosecution but he was shot dead much earlier by some unknown miscreants in the mosque premises early in the morning. The main case of the defence is that the deceased did not die at 2:30 P.M. as alleged by the prosecution but he was shot dead much earlier by some unknown miscreants in the mosque premises early in the morning. The defence had argued that it was a Ramzan month and P.W. 2 had stated that the deceased had taken sehri at 5:00 A.M. and as semi digested food were found by the doctor in the stomach of the deceased, it would lead to the inevitable conclusion that the deceased was shot dead within 2 to 3 hours of his taking food as the food taken by an individual is generally digested within four hours. In order to appreciate the issue, it would be necessary to notice the medical evidence. P.W. 6 Dr. Ashok Kumar Singh, who conducted the postmortem on the person of the deceased, found the following external and internal injuries, which are quoted hereinbelow.— “(2) External examination:—Mouth opened and both eyes closed. Beard on face. Rigormortis present in all limbs. (i) Wound of entry-Lacerated wound ½” x ½”x chest cavity deep on left side of the chest above nipple. The margin of wound was invested. There was charring of skin around the wound. (ii) Wound of exit-Lacerated wound of 1 ½” x 1” and communicating with the wound of entry on back, left side of chest. Margin of the wound invested. (3) Internal examination:—On dissection the chest was opened and found that there was collection of blood and clot about 1500 cc. in the left chest cavity. Left lung extensively lacerated. Right lung pale and intact. Heart extensively lacerated of left atrium and left vertical. Liver-Pale and intact. Stomach contains semi-digested food about 200 gms. Urinary bladder contains 100 cc of urine. (4) The injury was ante mortem in nature caused by fire arm. (5) In my opinion the cause of death was due to shock and hemorrhage as a result of above mentioned injury. (6) Time elapsed since death till post mortem held within 36 hours. (7) This post mortem report is in my pen and it bears my signature. Post mortem is marked Exhibit.” 11. It is true that as per Medical Jurisprudence by Modi, if a person takes non-vegetarian food the same would be generally digested within four to six hours. A little lesser time would take for digestion of vegetarian food. (7) This post mortem report is in my pen and it bears my signature. Post mortem is marked Exhibit.” 11. It is true that as per Medical Jurisprudence by Modi, if a person takes non-vegetarian food the same would be generally digested within four to six hours. A little lesser time would take for digestion of vegetarian food. In case, if a person is injured, it may take a little longer time for digestion. The defence had argued that the post mortem report would not support the prosecution case that the deceased was done to death at 2:30 P.M. on 05.2.1995 as the deceased had kept Roza and would have taken his food at about 4:30 to 5:00 A.M. In our view the case of the appellant is to be noticed to be rejected, on two counts; firstly there is no suggestion to any of the witnesses by the defence that the deceased did not take any food after 5:00 A.M. in the morning. As such the presence of semi digested food material would not be a relevant factor to demolish the prosecution case that the death took place at 2:30 P.M. Furthermore, it is well settled that unless and until the medical evidence makes the prosecution case improbable, the oral evidence would have primacy over the medical evidence, if the oral evidence is of unimpeachable nature and the presence of the witness cannot be doubted in any manner. In the instant case, as many as four witnesses, apart from the informant, namely, P.Ws. 1, 2, 3 and 4 have consistently stated that on 05.2.1995, they were present at the mosque and doing mosaic work. They all stated that at 2:30 P.M., accused Sheikh Hayat entered the sehan of the mosque and shot at the deceased on his chest by country made rifle from a point blank range. The doctor has found charring wound which fits in with the prosecution case that injury was made from very close range. The presence of rigor mortis also supports the prosecution case. 13. The defence has not been able to elicit any material to buttress the credibility of evidence. Thus we have no reason to doubt the testimony of these witnesses that Sheikh Hayat shot at the appellant and killed him. 14. The presence of rigor mortis also supports the prosecution case. 13. The defence has not been able to elicit any material to buttress the credibility of evidence. Thus we have no reason to doubt the testimony of these witnesses that Sheikh Hayat shot at the appellant and killed him. 14. The appellant next pointed out that P.W. 2 stated that he signed both the seizure list on the same day, whereas one of the seizure lists i.e. the mat on which deceased was sleeping, was signed on 18.4.1995. We find that the first seizure list, which comprised of the bullet and blood soaked clay was prepared and signed by P.W. 1 and 2 on the same day of the occurrence i.e. 05.2.1995. It is true that the second seizure list consisting seizure of mat was signed by P.W. 2 on 18.4.1995. However, the error in the statement of P.W. 2 that he signed on the same day would not be of much consequence as there are overwhelming evidence against the appellant that he shot dead the deceased. Furthermore the doctor has found rigor mortis present on the person of the deceased, which shows that the occurrence took place within 24 hours which tallies with the time given by the prosecution. 15. In the backdrop of discussions made above, we find that the prosecution has been able to establish the guilt of the appellant under section 302 IPC, beyond all reasonable doubt and as such we find no reason to interfere with the judgment of conviction. So far as the sentence is concerned, we alter the fine amount from Rs. 10,000/- (ten thousand) to Rs. 5,000 (five thousand) and in default thereof the appellant would undergo simple imprisonment for additional four months. 75 per cent of the fine amount would be paid to family of the deceased. 16. With the aforesaid modification in fine, the appeal is dismissed. The appellant who is in jail would remain so to serve the remaining part of the sentence.