JUDGMENT : Om Prakash-VII, J. 1. This Criminal Appeal has been preferred by appellants Virendra Singh alias Vijendra and Mahipal alias Mahipala against judgment and order dated 28.05.1983 passed by Ist District and Sessions Judge, Bareilly in Sessions Trial No.484 of 1981 and 607-A of 1982 (State Versus Virendra Singh), (State Versus Mahipal), convicting and sentencing appellant Virendra Singh alias Vijendra for offence under section 302 IPC to undergo imprisonment for life and appellant Mahipal alias Mahipala for offence under section 302/34 IPC to undergo imprisonment for life. 2. Prosecution story, in nutshell, as unfolded in written report (Ex.Ka.-1), are as follows: On 27.08.1981, informant Satya Pal Singh (P.W.1) son of Nihal Singh moved a written report (Ex.Ka.-1), scribed by Balbir Singh (D.W.1), mentioning therein that in the intervening night of 26/27.08.1981, Informant's brother Dharampal (deceased) was sleeping in the courtyard in front of chaupal. Informant was sleeping in the chaupal. His younger brother Rampal and his father Nihal Singh were sleeping outside in a thatched hut. In early morning, Dharampal (deceased) called Rampal to feed cattle on which Informant also woke up. Then at about 4:00 A.M., a fire was made and informant's brother Dharampal (deceased) cried that ^^gk¸k fofotsnzk ous oekj oMkyk^^ Hearing the sound of fire and cry made by Dharampal (deceased), Informant, his brother Rampal and neighbour Jaimal Singh, who was sleeping on his roof, came there. On seeing them, accused ran away towards eastern side of field. Informant, Rampal and Jaimal all were having torches. A lantern was also emitting near deceased. There was also moonlight in which accused were seen and recognized by witnesses as Vijendra alias Vijendra Singh and Mahipal alias Mahipala. One unknown accused could not be identified by these witnesses, but he could be recognized one to one. Vijendra was armed with country made pistol whereas Mahipala and one unknown accused were armed with lathi. Witnesses could not apprehend accused-persons due to fear of country made pistol. There was old enmity between informant's side and accused. Enmity was also between parties due to purchase of a land and due to that reason, accused Vijendra has shot his brother Dharampal (deceased). Receiving firearm injuries, deceased died on cot itself. 3. Witnesses could not apprehend accused-persons due to fear of country made pistol. There was old enmity between informant's side and accused. Enmity was also between parties due to purchase of a land and due to that reason, accused Vijendra has shot his brother Dharampal (deceased). Receiving firearm injuries, deceased died on cot itself. 3. On the basis of written report (Ex.Ka.-1), on 27.08.1981 at 6:30 A.M., Chik First Information Report No.97 of 1981 at Crime No.121 of 1981 under Section 302 IPC was registered against accused-persons as Ex.Ka.-3. Entry was also made in G.D. mentioning details as disclosed in written report on same day as Ex.Ka.-4. Carbon copy of G.D. proved by P.W.3 is also on record as Ex.Ka.-5. Information was also given by police concerned to higher Authorities. 4. Investigation commenced and Investigating Officer recorded statement of concerned head moharrir and Informant, Satya Pal Singh (P.W.1), as also of witness Jaimal Singh (P.W.2) under section 161 Cr.P.C. at police station concerned. Thereafter, he proceeded to the place of occurrence through G.D. entry. Investigating Officer inspected dead body of deceased reaching the place of occurrence and appointing panchan, inquest report (Ex.Ka.-5) was prepared on his direction by S.I. Prem Pal Singh. Chalan nash and photo nash prepared in the matter are Ex.Ka.-6 and Ex.Ka.-7. Other documents relating to inquest were also prepared. Dead body was kept in a sealed cover preparing sample seal and was handed over to constable Ramchandra Lal and Prem Kumar to carry the same to mortuary for postmortem. 5. Postmortem of deceased Dharampal was conducted on 28.08.1981 at 1:00 P.M. by Dr. S.K. Jain (P.W.4), Medical Officer at District Hospital, Bareilly. Deceased was aged about 50 years. Probable time since death was 1½ day. Deceased was an average built body. Rigor mortis was absent in both upper and lower extremities. Decomposition was started. On examination of body of deceased, following antemortem injuries were found : (i) Gunshot wound of entry 2.5 cm. x 2 cm. x chest cavity deep on front of chest just left to the mid line of chest 7 cm. away and inwards from left nipple at 8 O Clock position. Margins inverted. Blackening and charring present around the wound. Direction of injury towards left side in continuation with injury no. (ii). (ii) Contusion 10 cm. x 8 cm. on the lateral side of left side chest 6 cm. below left armpit. away and inwards from left nipple at 8 O Clock position. Margins inverted. Blackening and charring present around the wound. Direction of injury towards left side in continuation with injury no. (ii). (ii) Contusion 10 cm. x 8 cm. on the lateral side of left side chest 6 cm. below left armpit. Six gunshots palpable in the contusion area. On internal examination, left lung was found lacerated. Wadding piece was also recovered. Pericardium was also lacerated. Heart was also found lacerated under injury no.1. Weight of heart was 150 grams. In stomach, digestive food material of about 50 grams was found present. In small and large intestines, faecal matter and gases were found. Cause of death of deceased was shown as shock and haemorrhage due to antemortem injury. Postmortem report is Ex.Ka.-14. 6. Investigating Officer visited the place of occurrence and prepared site plan (Ex.Ka.-7) mentioning all details of the place of occurrence. He also took blood stained baad of cot (material Ex.Ka.-1), blood stained tehmad (material Ex.Ka.-2) and also blood stained mattress (material Ex.Ka.-3) into possession and prepared Memo Ex.Ka.-9. Blood stained and plain earth were also taken from the place of occurrence by investigating officer and keeping the same in a sealed box, Memo Ex.Ka.-10 was prepared. Soils taken from the place of occurrence were produced before Trial Court and were exhibited as material Ex.Ka.-4 & 5. Lantern and torches of witnesses Rampal, Satyapal (P.W.1) and Jaimal (P.W.2) were also taken into custody and preparing recovery memo Ex.Ka.-2 same were handed over to witnesses. Investigating Officer also interrogated witnesses and searched accused-persons. Thereafter, he returned to police station and deposited materials taken into custody in maalkhana through G.D. No.32, which is Ex.Ka.-11. Special Report was sent through G.D. No.15, which is Ex.Ka.-12. Investigating Officer, after fulfilling entire formalities, submitted charge-sheet (Ex.Ka.-13) against accused-appellants. 7. Cognizance was taken in the matter. Case, being exclusively triable by Sessions Court, was committed to the Court of Sessions. 8. Accused appeared. Prosecution opened its case describing evidence collected by Investigating Officer during investigation and also proposed to be adduced by prosecution against accused-appellants. Trial Court, after hearing accused side also, framed simplicitor charge for offence under section 302 IPC against accused-appellant Virendra Singh alias Vijendra and charge for offence under section 302/34 IPC was framed against accused-appellant Mahipal alias Mahipala. 9. Prosecution opened its case describing evidence collected by Investigating Officer during investigation and also proposed to be adduced by prosecution against accused-appellants. Trial Court, after hearing accused side also, framed simplicitor charge for offence under section 302 IPC against accused-appellant Virendra Singh alias Vijendra and charge for offence under section 302/34 IPC was framed against accused-appellant Mahipal alias Mahipala. 9. Prosecution, in order to prove its case, examined five witnesses in all. Out of them, P.W.1 is Satya Pal Singh, Informant, who claimed himself to be an eyewitness, P.W.2 Jaimal Singh, neighbour of deceased, who also claimed himself to be an eyewitness, P.W.3 Virendra Singh is Investigating Officer of this case, P.W.4 is Dr. S.K. Jain, who prepared postmortem report after conducting autopsy on the body of deceased and P.W.5, Constable Ramchandra Lal, who carried dead body of deceased to mortuary. 10. On closure of prosecution evidence, statements of accused were recorded under section 313 Cr.P.C. in which they denied prosecution case and showed ignorance regarding preparation of police papers. All incriminating evidence adduced by prosecution have been placed before accused in statements recorded under section 313 Cr.P.C., but they denied with them. Accused-appellant Mahipal alias Mahipala has stated that there was enmity between accused-appellant and grand maternal father of witness Jaimal Singh and due to that reason this witness has made false statement before the Court. Similar statement has also been made by accused-appellant Virendra Singh alias Vijendra. It also appears that in their defence accused-appellants examined D.W.1 Balbir Singh, scribe of written report (Ex.Ka.-1), who stated that he reached on spot at 8:00-9:00 A.M. in the morning. Thereafter, on dictation of police concerned, Chik F.I.R was prepared. He denied preparation of Chik F.I.R. in morning at the dictation of informant. 11. Trial Court, after hearing parties and appreciating entire evidence available on record, was of the view that prosecution was able to bring home guilt of accused-appellants for offence under Sections 302 IPC and 302/34 IPC and convicted and sentenced accused-appellants as above. Aggrieved by aforesaid conviction and sentence, accused-appellants have preferred this Appeal. 12. We have heard Sri Ajay Kumar Pandey, learned counsel for appellants and Sri Syed Ali Murtaza, learned A.G.A. for State. 13. Aggrieved by aforesaid conviction and sentence, accused-appellants have preferred this Appeal. 12. We have heard Sri Ajay Kumar Pandey, learned counsel for appellants and Sri Syed Ali Murtaza, learned A.G.A. for State. 13. Learned counsel for appellants castigating prosecution evidence and finding recorded by Trial Court in impugned judgment and order has addressed the Court that prosecution was not able to prove its case beyond reasonable doubt. F.I.R. lodged in this case is an ante-timed document. It was not in existence on date and time mentioned therein. At this stage, learned counsel for appellants has referred to statement of D.W.1 and also police papers including inquest report prepared in this matter and argued that F.I.R. lodged in this case is a suspicious document. Therefore, foundation of the case stands collapsed. It was further argued that motive assigned in this case has also not been proved beyond reasonable doubt and it has been changed stage to stage. Source of light disclosed by prosecution is also false. Incident took place in night hours. No one has recognized accused-appellants and they were falsely implicated in this case due to enmity. It was further contended that nothing has been mentioned in Chik F.I.R. about illicit relations of deceased with mother of accused-appellants. Thus, it is an improvement which is fatal to prosecution case. Deceased himself was a criminal. Several criminal cases were pending against him. He was done to death by some unknown person in other manner. It was next contended that witnesses examined in this case are interested witnesses and are close relative of deceased. There are major contradictions in their statement on material point i.e. recognizing of accused-appellants in torch light at the place of occurrence, time of making of F.I.R., flashing of torch light, reaching of witnesses at the place of occurrence etc. Next contention raised by learned counsel for appellants was that medical evidence does not support oral version. At this stage, learned counsel has referred to contents found in stomach and intestines of deceased and argued that prosecution, for the first time, during trial, cooked up a false story that deceased had gone to feast and returned at 12:00 in night. Thus, referring to entire evidence, it was further argued that date, time and place of occurrence have also not been proved beyond reasonable doubt. Thus, referring to entire evidence, it was further argued that date, time and place of occurrence have also not been proved beyond reasonable doubt. Scribe of chik F.I.R. himself has made contradictory statement to oral version of prosecution witnesses. Manner of incident has also not been proved beyond reasonable doubt. Referring to site plan prepared in this case, it was further contended that if prosecution evidence is taken into consideration to be true, then also P.W.1 could not recognize accused-persons, as he was sleeping behind wall inside the room. P.W.1 and P.W.2 both are not reliable witnesses. Conduct of witnesses was also unnatural. It is a case of hit and run. Referring to role assigned to accused-appellants, it was next contended that no active role has been assigned to appellant-2 Mahipal alias Mahipala in this case. Thus, finding recorded by Trial Court in impugned judgment and order are illegal and perverse. 14. On other hand, learned A.G.A. for State argued that when fire was made on deceased, he cried ^^gk¸k fofotsnzk ous oekj oMkyk^^ This fact clearly comes under the purview of dying declaration, as deceased died instantaneously on spot. Finding recorded by Trial Court on the basis of dying declaration is based on correct appreciation of evidence and law. Presence of P.W.1 and P.W.2 on spot at the time of occurrence is natural and probable. Since deceased called his younger brother Rampal to feed cattle, P.W.1 also woke up. Therefore, hearing the sound of fire, reaction made by P.W.1 is natural and probable. Accused-appellants were recognized not only in lantern light, but they were also recognized in moon light as well as torch light. They were known to witnesses, therefore, no problem would have been faced by them in recognizing accused-appellants. It was further argued that medical evidence fully supports oral version. Contradictions, improvements etc. shown in submission of learned counsel for accused-appellants or omission elucidated in prosecution evidence are not fatal to material point and do not go to root of the case. Finding recorded by Trial Court in impugned judgment and order are based on correct appreciation of facts and evidence and no interference is required in impugned judgment and order by this Court. 15. We have considered rival submissions made by learned counsel for parties and have carefully gone through entire evidence and record. 16. Finding recorded by Trial Court in impugned judgment and order are based on correct appreciation of facts and evidence and no interference is required in impugned judgment and order by this Court. 15. We have considered rival submissions made by learned counsel for parties and have carefully gone through entire evidence and record. 16. Coming to first question on point of lodging of F.I.R., we have minutely analyzed entire evidence in the light of submissions advanced by parties. In the case at hand, incident is said to have taken place in dark hours at about 4:00 A.M. on platform in courtyard of the house of informant and deceased. As per chik F.I.R. (Ex.Ka.-3), it was registered on same day at 27.08.1981 at 6:30 A.M. Stand of prosecution about lodging of F.I.R. is that P.W.1 Satyapal immediately after incident got prepared written report (Ex.Ka.-1) by Balbir Singh (D.W.1) and rushed to police station concerned for lodging F.I.R. Inquest report was prepared in the matter by concerned police in morning at 11:00 A.M. Other police papers relating to inquest report have also been prepared at the same time. D.W.1 Balbir Singh, who was scribe of written report, has stated that he reached on spot at about 8:00 – 9:00 A.M. and prepared written report on dictation of police concerned. Finding of Trial Court is that statement of D.W.1 on this point is false. Trial Court while concluding this finding has placed reliance on the time mentioned in inquest report, chik F.I.R., G.D. entry and statement of P.W.1 and P.W.3. If entire evidence adduced from both sides are minutely analyzed and also keeping in view the distance between the place of occurrence and police station, finding of Trial Court returned on this point cannot be termed to be illegal. Submission of learned counsel for appellant that F.I.R. is ante timed is not acceptable. Statement of D.W.1 is also not believable. There was nothing on record to show any enmity between accused and police concerned or biasedness of police in favour of informant. Thus no substance is found in submission raised by learned counsel for appellant on this issue. 17. As far as motive is concerned, in F.I.R. only this much is mentioned that there was an old enmity between parties and also accused bore enmity with deceased due to purchase of a land. Thus no substance is found in submission raised by learned counsel for appellant on this issue. 17. As far as motive is concerned, in F.I.R. only this much is mentioned that there was an old enmity between parties and also accused bore enmity with deceased due to purchase of a land. When P.W.1 was examined before Court on oath, an additional fact was stated by him on point of motive that there were illicit relations between mother of accused and deceased and due to that reason accused has committed this offence. Submission of learned counsel for accused-appellants is that this fact was stated for the first time during trial. Neither it was stated to investigating officer nor finds place in F.I.R. Thus prosecution was not able to prove motive. If submission raised by learned counsel for the parties are minutely analyzed in the light of entire evidence, it is evident that motive regarding illicit relations was stated for the first time before the Court. If this fact is not taken into consideration on the point of motive, then also prosecution has come up with specific motive of enmity. If suggestion made by defence to prosecution witnesses as well as statement recorded under section 313 Cr.P.C. are taken into consideration cumulatively, it is evident that defence themselves have admitted that they were falsely implicated in this matter due to enmity which would be clear from questions no.10 and 11 put to accused-appellant Mahipal alias Mahipala. It may be mentioned here that enmity is a double edged weapon. At a time, it may be a reason to commit offence and at the same time it may also be a reason for false implication. Meaning thereby, same motive may play role of either side. Since, in the present matter, there is dying declaration said to have been made by deceased when fire is said to have been made upon him and there is also testimony of witnesses, merely on this basis that fact of illicit relations of deceased with mother of accused was stated for the first time during trial, entire prosecution case cannot be disowned or thrown out. 18. Thus in the instant matter, presence of witnesses on spot, medical evidence and dying declaration said to have been made by deceased, have to be considered carefully and cautiously. 19. 18. Thus in the instant matter, presence of witnesses on spot, medical evidence and dying declaration said to have been made by deceased, have to be considered carefully and cautiously. 19. It may also be mentioned at this stage that P.W.1 is the son of deceased. P.W.2 is also related to deceased's family, as they were co-sharer in immovable property and also parties in criminal litigation against accused side. Thus Court finds need to scrutinize entire prosecution evidence very carefully and cautiously. 20. Next question, which is to be considered in the matter, is presence of eyewitness account at the time of occurrence. In the case at hand, as is evident from chik F.I.R., incident is said to have taken place on 27.08.1981 at 4:00 A.M. Place of incident, as is evident from site plan (Ex.Ka.-8), is the platform in courtyard situated in front of chaupal of deceased. It is also the case of prosecution that deceased was sleeping on the same platform and in wee hours at about 4:00 A.M., when deceased called Rampal to feed cattle, P.W.1 also woke up and heard sound of fire. Immediately sitting on cot, he flashed torch light towards cot of deceased and saw accused persons and also heard cry made by deceased ^^gk¸k fofotsnzk ous oekj oMkyk^^ . P.W.2 was sleeping in his house situate towards north west side of place of occurrence. He also immediately proceeded towards place of occurrence flashing torch light. One Rampal, who was sleeping in thatch towards northern eastern corner, is also said to have reached there, but he was not examined by prosecution. Submission of learned counsel for appellant is that P.W.1 and P.W.2 both have not seen the incident nor they could see from places where they were present at the time of incident. At this stage, learned counsel for appellant also referred to site plan (Ex.Ka.-7) and emphasized that cot on which deceased was sleeping was towards northern eastern side of chaupal where P.W.1 was sleeping. If both places shown in site plan are minutely tallied with statement of prosecution witness, it emerges that P.W.1 could not see accused persons, as the door would have been closed. If both places shown in site plan are minutely tallied with statement of prosecution witness, it emerges that P.W.1 could not see accused persons, as the door would have been closed. If submission raised by learned counsel for appellants are analyzed in the light of entire evidence, this fact that P.W.1 was sleeping in his chaupal and P.W.2 was sleeping in his house, which is situated near courtyard where deceased was sleeping, is not doubtful. It was night hours. Sleeping of P.W.1 and P.W.2 at places shown in site plan is probable and natural one. Calling Rampal by deceased to feed cattle at about 4:00 A.M. in the morning in the month of August is also not unnatural, as villagers used to feed their cattle in morning hours. Conduct of P.W.1 and P.W.2 at the time of occurrence and calling Rampal by deceased for feeding cattle is not unnatural. Keeping in view the distance between the place where P.W.1 Satya Pal and deceased both were sleeping, fact that P.W.1 woke up on hearing call made by deceased to Rampal is also not unnatural. If submission raised on behalf of appellants that P.W.1 and P.W.2 have not seen accused firing upon deceased be taken as true, then also they heard declaration made by deceased, just after firing, disclosing cause of death, as it could easily be heard by P.W.1. Both witnesses i.e. P.W.1 and P.W.2 have also seen accused running away from the spot. Accused could also be seen by P.W.1 from the cot where he was sleeping. Since incident is of night hours, inmates would be the best available witnesses and in present matter also P.W.1 and P.W.2 are best available natural and probable witnesses. They have seen accused at the place of occurrence just after firing in torch and lantern light. 21. Coming to medical evidence, it is found that one fire is said to have made upon deceased. First injury is on chest. Second injury is in the form of laceration near armpit. Doctor examined in the matter to prove postmortem report has clearly opined that both injuries found on body of deceased were firearm injuries. If distance between both injuries as well as nature of injuries are analyzed with oral version of prosecution case, it emerges that injuries found on the body of deceased could come only by a single shot. Doctor examined in the matter to prove postmortem report has clearly opined that both injuries found on body of deceased were firearm injuries. If distance between both injuries as well as nature of injuries are analyzed with oral version of prosecution case, it emerges that injuries found on the body of deceased could come only by a single shot. Trial Court, while analyzing medical evidence, was of the view that “statement made by P.W.4 Dr. S.K. Jain to some extent was to give benefit to accused persons and there was no conflict with oral and medical evidence.” If finding recorded by Trial Court in the light of entire statement of P.W.4 Dr. S.K. Jain is minutely scrutinized, no illegality or infirmity is found. Incident is of 27.08.1981 at 4:00 A.M. Postmortem was done on 28.08.1981 at 1:00 P.M. Meaning thereby, postmortem was conducted after about 33 hours. Symptoms shown in postmortem report also support this fact as decomposition was also found started. If this was the situation and incident was of August, naturally rigor mortis could pass off. Since time of passing off rigor mortis and postmortem staining depends upon climate, season, age of deceased, physical fitness and condition of body (whether ailing or healthy), no hard and fast criteria can be fixed in medical jurisprudence about existence of rigor mortis. It all depends upon facts mentioned here-in-above. Therefore, on close analysis of facts mentioned in postmortem report and as stated by P.W.4 Dr. S.K. Jain, we are of the considered view that medical evidence in present case is not contrary to oral evidence. Time of death of deceased was about 4:00 A.M., as has been mentioned in F.I.R. and as stated by prosecution witnesses. 22. It may also be mentioned here that in instant case, faecal matter and gases were found in small and large intestines and digestive food was also found present in stomach. Referring to this fact, it was urged by learned counsel for appellants that deceased was done to death in midnight and entire prosecution story becomes false on this sole ground. It may also be mentioned here that in instant case, faecal matter and gases were found in small and large intestines and digestive food was also found present in stomach. Referring to this fact, it was urged by learned counsel for appellants that deceased was done to death in midnight and entire prosecution story becomes false on this sole ground. If submission raised by learned counsel for appellants on this point is minutely analyzed, prosecution case, although during trial, was that deceased had gone to feast in night and returned at about 12:00 P.M.; this fact has come during cross-examination made from P.W.1; nothing was mentioned in written report about this fact but on this sole ground, time of death cannot be doubted. 23. Regarding existence of faecal matter and gases in intestines and digestive food in stomach, it is settled that presence of semi digested food in the stomach of deceased is not conclusive in itself for determining time of death. The State of the contents of the stomach found at the time of medical examination is not a safe guide for determining the time of occurrence because that would be a matter of speculation, in the absence of reliable evidence on the question as to when the deceased had his last meal and what that meal consisted of. Further, presence of faecal matter in the intestines is also not conclusive, as the deceased might be suffering from constipation. Where there is positive direct evidence about time of occurrence, it is not open to court to speculate about the time of occurrence by the presence of faecal matter in the intestines. In villages, rural people usually go to answer the call of nature before sunrise, no such generalization is possible. It depends upon habit of the individual, the state of his health, particularly of his digestive system, weather and several other factors. Time required for digestion may depend upon the nature of food. Process of digestion is largely delayed in the case of vegetable food consumed by Indians. Time varies according to digestive capacity. The process of digestion is not uniform. It varies from individual to individual. Digestion varies with the state of gastric mucosa. It also depends on the health of person at particular time. Process of digestion is largely delayed in the case of vegetable food consumed by Indians. Time varies according to digestive capacity. The process of digestion is not uniform. It varies from individual to individual. Digestion varies with the state of gastric mucosa. It also depends on the health of person at particular time. [vide : 1971 Criminal L.J. 1511 (V 77 C 445), Sheo Darshan v. State of Uttar Pradesh, AIR 1971 SC 1794 , State of Uttar Pradesh v. Shanker, AIR 1981 SC 897 , Lachman Singh versus State, AIR 1952 SC 167 , Nihal Singh versus State, AIR 1965 SC 26 and Shivaji versus State, AIR 1973 SC 2622 ]. 24. On the basis of digestive food and faecal matter as well as gases found in stomach and intestines, it cannot be held in present case that deceased was done to death in midnight by unknown person. If settled proposition of law, as discussed here-in-above, is taken into consideration, forming of opinion on the basis of aforesaid facts would be only speculation. Thus time of death of deceased could not be doubted in this case. Finding recorded by Trial Court is based on correct appreciation of evidence. We have also re-appreciated prosecution evidence and found no error in Trial Court finding on this issue. 25. In so far as source of light is concerned in this matter, case of prosecution is that lantern was burning in Liloti near the platform where deceased was sleeping. Prosecution case is also that accused were identified in lantern light, moonlight and also in the light of torches used by witnesses. Investigating Officer had also taken lantern and torches into custody and handed over the same to witnesses preparing memo Ex.Ka.-2. Existence of lantern and using of torch light have been mentioned by P.W.1 in F.I.R. and to Investigating Officer under section 161 Cr.P.C. and same facts were stated before the Court during trial on oath. Thus on point of source of light, finding recorded by Trial Court in impugned judgment and order is also found correct. There is no inconsistency or contradiction on this point in statement of P.W.1 and P.W.2 as well as in statement of P.W.3 - Investigating Officer. Statement of D.W.1 does not negate statement made by P.W.1 and P.W.2 on this point. 26. There is no inconsistency or contradiction on this point in statement of P.W.1 and P.W.2 as well as in statement of P.W.3 - Investigating Officer. Statement of D.W.1 does not negate statement made by P.W.1 and P.W.2 on this point. 26. Next question to be scrutinized is whether cry made by deceased upon receiving firearm injury in form of ^^gk¸k fofotsnzk ous oekj oMkyk^^ could be used as dying declaration. Settled principle of law on the point of admissibility of declaration made by deceased about cause of death is that statement, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. 27. It is also settled proposition of law that a person about to die would not give false statement about his cause of death. Truth sits on the lips of a person who is about to die. The maxim “Nemo moriturus praesumitur mentire” is the basis for ''dying declaration'', which means '' a man will not meet his maker with a lie in his mouth''. A dying declaration is called as ''Leterm Mortem'' which means '' Words said before death''. Principle underlying under the provision of Section 32 of Indian Evidence Act about admissibility of such statement, who is now no more is based on aforesaid principle. A close scrutiny of section 32 (1) of Indian Evidence Act, it is vividly known when the statement is made by a person with regard to the cause of his death, or any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question, such statements are relevant irrespective of the person who made such declaration was expecting death or not. 28. 28. A Constitution Bench in Laxman v. State of Maharashtra, (2002) 6 SCC 710 , held that juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of existence of many circumstances which may affect their truth. The situation in which a man is on deathbed is so solemn and serene, is the reason in law to accept veracity of his statement. 29. In instant case, if above settled proposition of law is applied and compared with facts and evidence available on record, it emerges that words ^^gk¸k fofotsnzk ous oekj oMkyk^^ were disclosed by deceased just after receiving injuries. When witnesses reached at spot immediately after incident, deceased was found dead. Meaning thereby, aforesaid declaration was made by deceased when he was about to die. It is also clarified that oral declaration made by a person could be used as dying declaration. Therefore, finding of Trial Court on point of dying declaration said to have been made by deceased in this case is based on correct appreciation of facts and evidence. Words uttered by deceased just after receiving firearm injuries before his death have been proved by P.W.1 and these facts not only find place in written report lodged on the day of incident within 2½ hours of F.I.R., but were also stated to Investigating Officer as well as before the Court in his statement made on oath. Lengthy cross-examination has been made. Nothing has come out to disbelieve the dying declaration said to have been made by deceased and to negate finding of Trial Court. 30. As regards exaggerations, omissions, contradictions and laches on the part of Investigating Officer are concerned, we have minutely analyzed submission raised by learned counsel for appellants during course of arguments with facts and evidence and we do not find any substance in it. 30. As regards exaggerations, omissions, contradictions and laches on the part of Investigating Officer are concerned, we have minutely analyzed submission raised by learned counsel for appellants during course of arguments with facts and evidence and we do not find any substance in it. Prosecution evidence on material points about date, time and place of occurrence, presence of P.W.1 and P.W.2 on spot, manner of incident and also dying declaration said to have been made by deceased are cogent, clear and consistent. Aforesaid shortcomings elucidated on behalf of appellants' side are not fatal to prosecution case on material point and do not go to root of the case. It may be mentioned here that no criminal case is free from shortcomings. If such shortcomings are allowed to become fatal to prosecution case, it will be difficult for prosecution to prove its case. It may also be mentioned here that shortcomings shown in prosecution case during course of arguments by learned counsel for appellants also do not cause any prejudice to accused. Lengthy cross-examination has been made in this case. Incriminating materials have been put to accused under section 313 Cr.P.C. Thus finding recorded by Trial Court about shortcomings occurred in prosecution case need no interference. 31. So far as involvement of accused-appellants in this case is concerned, role of firing has been assigned to accused-appellant Virendra Singh alias Vijendra. Medical evidence if compared with role assigned to accused-appellant Virendra Singh alias Vijendra, it is clear that injuries found on body of deceased can be caused with one fire. Prosecution case is also that only one fire was made upon deceased. Deceased has also made oral dying declaration and has stated that ^^gk¸k fofotsnzk ous oekj oMkyk^^ . If aforesaid facts are taken into consideration in its totality, then it clearly emerges that involvement of accused-appellant Virendra Singh alias Vijendra in present case has been proved by prosecution from its evidence beyond reasonable doubt. Dying declaration also finds support with statement of P.W.1 and P.W.2 to the extent that when they flashed their torch lights, they found accused-appellant Virendra Singh alias Vijendra armed with country made pistol. Dying declaration said to have been made in this case finds support not only with oral version of prosecution evidence, but also finds support with medical evidence. Dying declaration also finds support with statement of P.W.1 and P.W.2 to the extent that when they flashed their torch lights, they found accused-appellant Virendra Singh alias Vijendra armed with country made pistol. Dying declaration said to have been made in this case finds support not only with oral version of prosecution evidence, but also finds support with medical evidence. Thus involvement of accused-appellant Virendra Singh alias Vijendra for committing murder of deceased Dharampal has been proved by prosecution and finding of Trial Court regarding guilt of accused-appellant Virendra Singh alias Vijendra for offence under Section 302 IPC simplicitor need no interference. 32. In so far as involvement of accused-appellant Mahipal alias Mahipala in this case is concerned, as has been discussed here-in-above, only one fire is said to have been made by accused-appellant Virendra Singh alias Vijendra. Nothing has been disclosed in prosecution evidence about active role played by accused-appellant Mahipal alias Mahipala. Neither this appellant has made any exhortation nor actively participated in commission of present offence. Accused-appellant Mahipal alias Mahipala was not armed with any firearm weapon. Only allegation against him is that when prosecution witnesses flashed light after hearing gunshot fire, they saw both accused present there and immediately thereafter they ran away towards field. When accused-appellant Mahipal alias Mahipala was examined under section 313 Cr.P.C., he stated that there was enmity with maternal uncle of Jaimal Singh from this witness and due to that reason he was falsely implicated in this case. Meaning thereby, stand of this appellant is that he was implicated in this case on the basis of enmity. Nothing is on record to disclose that there was any prior concert or meeting of mind of both the accused-appellants so that provision of Section 34 IPC could be invoked. It is true that common intention can be gathered from attending circumstances emerged on spot, but on close scrutiny of entire prosecution evidence as well as evidence adduced by defence, we are of the view that involvement of accused-appellant Mahipal alias Mahipala for reason discussed here-in-above appears to have not been proved by prosecution beyond reasonable doubt, particularly when enmity between this appellant and informant's side is established. Thus applying rule of caution, we are of the view that finding recorded by Trial Court regarding guilt of appellant Mahipal alias Mahipala is not based on correct appreciation of fact, evidence and law. Thus applying rule of caution, we are of the view that finding recorded by Trial Court regarding guilt of appellant Mahipal alias Mahipala is not based on correct appreciation of fact, evidence and law. Accused-appellant Mahipal alias Mahipala, in the opinion of this Court, is entitled to be acquitted from all charges levelled against him. 33. So far as imposition of sentence is concerned, since all ingredients to constitute offence under Section 302 IPC have been proved by prosecution against accused-appellant Virendra Singh alias Vijendra beyond reasonable doubt, minimum sentence provided for offence under Section 302 IPC is imprisonment for life. Thus sentence imposed upon accused-appellant Virendra Singh alias Vijendra, being the minimum sentence for offence under Section 302 IPC, need no interference. In our considered opinion, sentence imposed upon accused-appellant Virendra Singh alias Vijendra will meet the ends of justice and will also be to the conscience of Court and Society. 34. Thus Appeal filed in respect of accused-appellant Mahipal alias Mahipala is liable to be allowed, but Appeal filed in respect of accused-appellant Virendra Singh alias Vijendra, for the reason discussed here-in-above, finding no merit, is liable to be dismissed and impugned judgment and order convicting and sentencing accused-appellant Virendra Singh alias Vijendra is liable to be confirmed. 35. Resultantly, Appeal is partly allowed. Impugned judgment and order dated 28.05.1983 passed by Ist District and Sessions Judge, Bareilly in Sessions Trial No.484 of 1981 and 607-A of 1982, so far as convicting and sentencing appellant Mahipal alias Mahipala under section 302/34 IPC is concerned, is set aside. Appellant Mahipal alias Mahipala is acquitted of the charge under section 302/34 IPC. If he is on bail, he need not surrender. His bail bonds stand canceled and sureties discharged. In case he is in jail in this matter, he be released forthwith if not required in any other case. 36. However, conviction and sentence imposed upon accused appellants Virendra Singh alias Vijendra vide judgment and order dated 28.05.1983 for offence under section 302 IPC is upheld. If appellant Virendra Singh alias Vijendra is on bail, his bail bonds are cancelled. He is directed to surrender before Court concerned immediately, who shall take him into custody and send him to jail for serving out sentence imposed upon him by Trial Court. If appellant Virendra Singh alias Vijendra is on bail, his bail bonds are cancelled. He is directed to surrender before Court concerned immediately, who shall take him into custody and send him to jail for serving out sentence imposed upon him by Trial Court. In case he fails to surrender, as directed above, the Chief Judicial Magistrate concerned is directed to take coercive action against him in this regard. 37. Keeping in view provisions of Section 437-A CrPC, appellant Mahipal alias Mahipala is directed forthwith to furnish a personal bond of the sum of Rs. fifty thousand and two reliable Sureties each in the like amount before Trial Court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the appellant on receipt of notice thereof shall appear before Hon'ble Supreme Court. 38. Copy of this judgment alongwith lower court record be sent forthwith to the Court concerned for compliance and compliance report be sent to this Court.