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2019 DIGILAW 5 (ALL)

Hirday Ram v. State of U. P.

2019-01-02

DINESH KUMAR SINGH, RAMESH SINHA

body2019
JUDGMENT : Dinesh Kumar Singh, J. Heard Sri Dilip Kumar, learned Sr. Advocate assisted by Sri Akhilesh Singh, learned counsel for the appellants, Sri Arun Kumar, learned counsel for the complainant and Sri A.R. Chaursaiya, learned A.G.A. for the State. 2. This criminal. Appeal has been preferred against the judgment and order dated 31.8.1985 passed by the Sessions Judge, Sri Surya Prasad, in S.T. No. 34 of 1985 (State Vs. Hirday Ram and three others), whereby the accused-appellants Hirday Ram, Adiram, Rajvir and Udaivir have been held guilty under Section 302 read with Section 34 IPC and have been sentenced to imprisonment for life each. 3. The prosecution's case as mentioned in the F.I.R. is that on 5.7.1984, first informant Raghuvir Singh (PW-1) along with his uncle Ram Bharose (deceased) S/o Genda Lal, his father Lajja Ram S/o Genda Lal, his cousin brother Sukhvir Singh S/o Ram Bharose, were constructing wall of their house towards South by engaging a mason (mistri) namely Doji Ram S/o Gopi Jatav, R/o Village- Oodhan, P.S. Kurra, who was doing construction work and the material of work was being supplied by the first informant and the above mentioned persons and by this construction a door was being opened towards pond. Towards South-West of the said pond was located the house of Hirday Ram S/o Manjan of his village and adjoining to his own house towards South was the field of Hirday Ram. Seeing the said door being opened Hirday Ram (accused-appellant no. 1) and his sons namely Rajvir (accused appellant no. 3), Udaivir (accused appellant no. 4) and real brother of Hirday Ram namely Adiram (accused-appellant no. 2) came near the said wall and started saying that they should not try to open the door towards the pond because that would be detrimental to them. At this, the first informant's uncle Ram Bharose told that pond did not belong to them and they would certainly open the door in that direction. Thereafter, the accused-appellants named above became deeply annoyed and started abusing them and would say that they would not allow the door to be opened in that direction. Thereafter, the first informant's uncle again stated that they could not stop him and simultaneously he along with Adiram directed his sons that they should bring gun and pistol. Thereafter, the accused-appellants named above became deeply annoyed and started abusing them and would say that they would not allow the door to be opened in that direction. Thereafter, the first informant's uncle again stated that they could not stop him and simultaneously he along with Adiram directed his sons that they should bring gun and pistol. In the meantime, when the dispute was escalating between them, some villagers namely Ahibaran Singh (PW-2) S/o Sahookar, Aayaram S/o Sudhar Singh and Soran Singh Yadav R/o Dara Mauja Ginauli, P.S. Danahar reached there and tried to counsel Hirday Ram and other accused persons but Rajvir armed with his single barrel gun of 12 bore and Udaivir armed with country made pistol reached there and while the construction of the said wall was going on, both Rajvir and Udaivir, from the front of their house from across the pond took aim towards the first informant and other persons and fired upon them which resulted in his uncle Ram Bharose (deceased) receiving fire arm injury of pallets who became badly injured because of the pallet injuries and succumbed to the injuries while accused-appellants Hirday Ram, Adiram, Rajvir and Udaivir fled towards South from there. This occurrence happened at about 4:00 pm in the evening. 4. The first informant prepared the written report (Ext. Ka-1) and on the basis of said report HC-10 C.P. Surendra Singh lodged a criminal case against all the appellants named above under Section 302 IPC on 5.7.1984 at 7:30 p.m. promptly and prepared the chick F.I.R. (Ext. Ka-2) and made entry of the said case in G.D. No. 27 dated 5.7.1984 at 7:30 p.m. (Ext. Ka-3). The investigation of the case was handed over to S.O. Sukhvir Sharma (PW-4), who has stated that on 5.7.1984 at 7:30 p.m., the first informant Raghuvir Singh had lodged a report of this case at P.S. Kurra, District- Mainpuri in his presence and, thereafter, he immediately started the investigation of this case. He recorded statements the same day of constable Surendra Singh at the P.S. concerned and also recorded statements of first informant Raghuvir Singh the same day at P.S. and, thereafter, departed for the place of occurrence to village Vikauna along with force and reached at about 9:00 p.m. but because of lack of light, he could not prepare panchayatnama. He recorded statements the same day of constable Surendra Singh at the P.S. concerned and also recorded statements of first informant Raghuvir Singh the same day at P.S. and, thereafter, departed for the place of occurrence to village Vikauna along with force and reached at about 9:00 p.m. but because of lack of light, he could not prepare panchayatnama. Thereafter, he made effort to search for the accused persons who could not be found. In the said night itself he remained in village Vikuna itself and on the next day i.e. on 6.8.1984 at about 6:00 a.m. he searched house of the accused persons but no illegal weapon or licencee gun could be recovered. He recorded statements of witness Ahibaran Singh, witness- Asha Ram Singh at 6:40 a.m. and, thereafter, in his supervision the panchayatnama of the deceased Ram Bharose was filled up by S.I. V.L. Sharma which was written by him and was also signed by him, the same also bears signatures of panchas and his own signature as well, which is Ext. Ka-4. Thereafter, the dead body was sealed and the same was dispatched for post-mortem along with all the relevant papers i.e. chalan nash, photo nash, chitthi C.M.O, chitthi R.I. and sample seal which are Ext. Ka-5 to Ka-9 respectively through constable Hanuman Singh and Home-guard Nempal the same day. He also collected the blood stained soil as well as plain soil from the place of occurrence and sealed them in separate containers and prepared its memo which is Ext. Ka-10. Thereafter he made spot inspection at the instance of first informant Raghuvir Singh and prepared site plan in his hand writing which is Ext. Ka-11. 5. Thereafter, he again on the same day i.e. on 6.7.1984 took search of the houses of the accused and prepared its memo in his hand writing which is Ext. Ka-12. On 7.7.1984, he recorded statements of other witnesses and also made search for the accused but they could not be found. On 9.7.1984, he received a sealed envelope from the doctor sahab, who had conducted post-mortem and in that, were found the pallets which were taken out of the body of the deceased and the same were deposited at P.S. vide G.D. No. 27. On 9.7.1984, he received a sealed envelope from the doctor sahab, who had conducted post-mortem and in that, were found the pallets which were taken out of the body of the deceased and the same were deposited at P.S. vide G.D. No. 27. Again on 13.7.1984, he made search for the accused but they could not be found, although they surrendered before the court and, thereafter, he took their statements in jail and after concluding the investigation on 31.7.1984, he submitted charge sheet against the accused persons which is Ext. Ka-13. He had also sent the material collected during investigation for chemical examination. 6. On the basis of evidence gathered by police, charge was framed against the accused-appellants under Section 302 read with 34 IPC on 11.2.1985 to which they pleaded not guilty and claimed to be tried. 7. For proving this case, from the side of prosecution, first informant Raghuvir Singh as PW-1, Ahibaran Singh, eye-witness of the occurrence as PW-2, HC-10 C.P. Surendra Singh, who had prepared the chick F.I.R. and G.D. as PW-3 and the Investigating Officer S.O.- Sukhbir Sharma as PW-4, were examined. Thereafter the prosecution evidence was closed and the statements of accused were recorded under Section 313 Cr.P.C. 8. All the accused-appellants denied to have committed any offence and have further stated that they have been implicated falsely in the present case due to enmity and they have further denied the truthfulness of the entire evidence which has been gathered by the Investigating Officer, although no documentary evidence or oral evidence has been adduced from their side in support of their defense. 9. On the basis of above mentioned evidence, learned trial court has held the accused-appellants guilty and has awarded them aforementioned punishment, hence the present appeal. 10. Learned counsel for the appellant has vehemently argued that accused as well as complainant side are collateral, meaning thereby they are related to each other and that there was no motive for the accused to kill the deceased. Particularly he emphasized that the evidence reflects that two main assailants namely Rajvir and Udaivir are said to have fired from a distance at about 30-35 yards from across the pond and drew the attention of the court towards statement of PW-1 in which he had stated that Udaivir and Rajvir armed with gun and country made pistol had come near the wall. Pointing out towards the said statement, it was argued that after having come to the wall which was being constructed, these two accused-appellants are stated to have fired from 30 to 35 yards distance from across the pond, which would suggest that had they any intention to kill the deceased, they would not have gone back to the distance of 30-35 yards and would fire from there when they had already come near the said wall. Therefore that would reflect that at the most they had intention to scare off the deceased from raising construction of the said wall and not to kill him. Therefore, it was argued that the punishment under Section 302 IPC should be converted under Section 304 (I) IPC. Further it was argued that PW-1 has clearly admitted in cross-examination that he had written in the report wrong, this fact, that Rajvir by gun and Udaivir with country made pistol had aimed towards them with an intention to kill and had fired which hit his uncle Ram Bharose because he was in grief. Further attention was drawn towards the fact that in examination-in-chief, PW-1 has clearly stated that Rajvir had made fire from his house across the pond at his uncle by the gun which hit his uncle Ram Bharose, who fell down by the side of the wall after getting injured. Further it is argued that these statements clearly reflect that the first informant had deliberately implicated the whole family of the accused persons because in fact it was only Rajvir who had made fire upon his uncle which hit him and which finally resulted in his death, while the others namely Hirday Ram and Adiram have been falsely implicated. First two having been assigned the role of exhortation and the third one i.e. Udaivir having been assigned the role of using country made pistol in firing upon not the deceased but the other witnesses which did not him them. Further it is argued that no recovery has been made of any weapon from any of the accused-appellants and, therefore, if at all any accused could be held guilty that could be only Rajvir and none else as they have been falsely implicated and even Rajvir could at the most have been convicted under Section 304(I) IPC. 11. Further it is argued that no recovery has been made of any weapon from any of the accused-appellants and, therefore, if at all any accused could be held guilty that could be only Rajvir and none else as they have been falsely implicated and even Rajvir could at the most have been convicted under Section 304(I) IPC. 11. On the other hand, learned counsel for the complainant as well as learned A.G.A. for the State have vehemently argued in favour of upholding judgment of conviction passed by the learned trial court stating that there is no infirmity in the conclusion drawn by the learned trial court on the basis of evidence on record in holding all the four accused guilty because they were all involved and there was clear cut case of exhortation made on behalf of the Hirday Ram and Adiram, while other two i.e. Rajvir and Udaivir were assigned the role of making fire upon the deceased by respective weapons i.e. S.B.B.L gun and country made pistol. 12. To appreciate the respective arguments made on behalf of both the sides, we have to evaluate the entire evidence which has come on record. 13. Pw-1, informant, has stated on oath in examination in chief that his father's name is Lajja Ram, who had two brothers. His father is Lajja Ram and Ram Bharose (deceased) was his uncle. Sukhvir Singh is son of his uncle Ram Bharose. The accused person in court namely Hirday Ram and Adiram are real brothers and accused Udaivir Singh is son of Hirday Ram and other son of Hirday Ram is Rajvir, who is accused in this case. Further he has stated that his house is in southern direction of the village. The house of his uncle Ram Bharose and his own house is one and the same and towards west of this house there is pond and towards South of that house is also pond and towards East of that pond is the agricultural field of accused persons. Towards South of the southern pond is located the house of the accused and towards East of that house of the accused is also pond. Further he has stated that accused Hirday Ram and his uncle Ram Bharose, both are Sadhu of each other and the family member of PW-1 and the accused are collateral. Towards South of the southern pond is located the house of the accused and towards East of that house of the accused is also pond. Further he has stated that accused Hirday Ram and his uncle Ram Bharose, both are Sadhu of each other and the family member of PW-1 and the accused are collateral. He has given statement before court on 5.8.1985 that about 13 months back, he along with his uncle Ram Bharose were constructing a wall and his cousin brother Sukhbir Singh was also getting wall of his house constructed through Doji Ram, who was being supplied construction material by them. His uncle was opening a door towards pond in the southern wall of his house, seeing which accused Hirday Ram, Adiram, Rajvir and Udaivir reached there near the said wall and restrained his uncle from opening the said door stating that, that would cause harm to them. At this, his uncle told that the said pond did not belong to them and they would not stop from opening the door in that direction. Thereafter, the accused who were present in court started abusing his uncle and when the accused stated that they would not allow the door to be opened, accused Hirday Ram and Adiram exhorted Udaivir and Rajvir to bring their gun and pistols and after that hearing abusing and quarrel, Ahibaran Singh, Asha Ram and various other peoples who were passing by, through that way, also reached there. One Soran Singh also came there and all of them tried to convince all the accused appellants, in the meantime Udaivir and Rajvir both armed with gun and pistol respectively came near wall. At that time his uncle was picking up the bricks and right then Rajvir made a fire upon PW-1's uncle from in front of his house which hit his uncle Ram Bhrose, who getting injured, fell down on the other side of the wall. The second fire was made by Udaivir Singh by country made pistol upon them (PW-1 and others) which did not hit them. Thereafter, his uncle was taken to hospital in a buffalo cart but as soon as he was placed in cart, he succumbed. This firing incident took place around 4:00 p.m. and all the four accused fled towards South-western direction in fields. Thereafter, his uncle was taken to hospital in a buffalo cart but as soon as he was placed in cart, he succumbed. This firing incident took place around 4:00 p.m. and all the four accused fled towards South-western direction in fields. His uncle Ram Bharose had fell down after getting injured by fire arm injury, at that place blood had fallen due to injury. Further, he has stated that he had written report the same day in his own hand writing which is Ext. Ka-1. 14. In cross-examination, this witness has stated that at the time of occurrence the said pond was full of water and the wall, which was being constructed, was at a distance about 30 to 35 yards away from the house of the accused and from the said distance only, both the fires were made. If one would travel by the side of the pond, the distance of the said house from the house of the accused would be around 40 to 50 yards. To the north of his house, is the house of Gayadeen and Ranjeet and adjoining to the house of PW-1 is house of Kuchu Lal. Further he has stated that towards South of his wall is a passage and towards South of his wall there are few bricks and subsequently denied also that there were any bricks. Towards north of the said wall of his house, there were few bricks. At the time when fire was made, some bricks were lying towards southern side of the said wall and the field towards southern side of the said wall belonged to the Hirday Ram, accused which must be around to 2 - 3 bighas. Prior to the construction of the said wall, there used to live cattle in Gher. After raising the wall they were trying to convert Gher into residential portion. He further stated that earlier there existed a wall but subsequently stated that earlier there was only a foundation and not the wall, rather on the said foundation the wall was being constructed. Further it is stated that there was open area in Gher towards the pond. The said wall, which was being constructed, was about 30 to 35 hands long. The construction of the said wall was started on the date of incident itself in the morning. Further it is stated that there was open area in Gher towards the pond. The said wall, which was being constructed, was about 30 to 35 hands long. The construction of the said wall was started on the date of incident itself in the morning. Doji is a mason while work of providing material to the mason was being done by them only. By the time incident took place 3-4 'radda' had been laid and the mason was sitting towards West of the said wall while Ram Bharose was towards South of the said wall. There must have been distance of 2 to 3 steps between mason and Ram Bharose (deceased) while at distance of about one to two steps towards North from the said mason, must have been the place where PW-1 and others were standing. At the time when fire was made Ram Bharose was bent and was picking the bricks having his face towards north. The Ram Bharose received one fire. He had written wrong in the report that Rajvir by gun and Udaivir by country made pistol, had aimed towards them, with an intention to kill, in which his uncle got injuries, because he was in grief. The report was began to be written about one or half hour after the incident of fire which was being written inside the Gher by him. They were standing close to the deceased for about half an hour and, thereafter, he started writing report. During this period of half an hour a lot of people had collected there. Approximately 10 to 20 persons had gathered there but he had written report sitting separate and at the time when he was writing the same there was no body. At the time when he was writing report in Gher, witness Soran Singh, Ahibaran Singh and Asha Ram were not a Gher. When the abusing was going on between two sides, right then these witnesses had come and this abusing had continued for five to ten minutes. Further it is stated that Lajja Ram and Sukhbir were near the dead body while he was writing report, although further he stated that prior to writing report by him, all the three witnesses have left the place. He had not talked to Ahibaran Singh and Asha Ram at the said place. Further it is stated that Lajja Ram and Sukhbir were near the dead body while he was writing report, although further he stated that prior to writing report by him, all the three witnesses have left the place. He had not talked to Ahibaran Singh and Asha Ram at the said place. When the abusing took place between the two sides, at that time the ladies of the house had also come on the spot. Further he has stated that after having written report, he had immediately left for the police station which was located about 6 to 7 miles from the place of incident and after lodging of the report at police station, police also started for the place of occurrence immediately and he reached the place of occurrence only after police had reached there. He had spent about two hours at police station and the police personnel had come to the spot on bicycles. The son of Ram Bharose had not accompanied him to police station rather when he returned from police station, his son was standing by the side of the deceased. Lajja Ram was also present, although Ahibaran Singh, Asha Ram and Soran Singh were not present and then he had reached near the dead body, the S.O. was sitting on the cot near the dead body. Only little writing work could be completed in respect to the dead body because it had become dark and S.O. could complete writing work next day in the morning. Further it is stated that he knows wife of Mehtab Singh namely Katori, regarding snatching the jewellery of Katori, a case was filed against father of PW-1 Lajja Ram and Ram Bharose. But accused Hirday Ram was not a witness in that case against his father. He denied the suggestion that Ram Bharose was murdered in some other circumstances at some other place and that the report was lodged after consultation at the police station concerned due to enmity. 15. The other eye-witness Ahibaran Singh (PW-2) has stated in examination-in-chief that he knows the accused who were present in court who belong to his village. In his statement recorded on 6.8.1985, he has stated that about 13 months ago Ram Bharose was murdered at about 4:30 pm, at that time he was near his field of corn which was about 50 steps away from the place of incident. In his statement recorded on 6.8.1985, he has stated that about 13 months ago Ram Bharose was murdered at about 4:30 pm, at that time he was near his field of corn which was about 50 steps away from the place of incident. At that time accused and Ram Bharose and others were involved in an altercation, when he reached there. Besides him, Asha Ram had also arrived there who was ploughing the field and after some time Soran Singh also reached there and till then altercation was going on. The accused were saying that the door should not be opened towards pond while Ram Bharose was saying that he would open the door in that direction and on this, abusing took place between two sides. Hirday Ram told his son Rajvir and Udaivir to bring their pistol and gun for firing upon them and this was also stated by Adiram to them. Thereafter, the accused Rajvir and Udaivir went towards their house and came out with gun in the hand of Rajvir and country made pistol in the hand of Udaivir. Rajvir made a fire across the pond from the western side from a distance about 30 to 35 yards, which hit Ram Bharose, who fell down after getting hit and Udaivir also made fire upon Raghuvir and others but the same did not hit them and, thereafter, accused fled towards southern side. Further he has stated that they all reached near Ram Bharose and lifted him to be placed in a buffalo cart to be taken to a hospital but as soon as he was kept in the said cart, he died and therefore his dead body was kept in Baithak. Further he has stated that Doji Ram, mason, would not give statement because he is a weak person and because of being threatened by the mohamdans, he has colluded with the accused sides. 16. In cross-examination, he has stated that the abusing continued approximately for half an hour and during this period, 4 to 6 persons had come there which were namely Mulayam Singh, Asha Ram, Soran Singh, Ahibaran Singh, some other ladies and children. At the time when Ram Bharose received fire arm injury, he had bent to lift the brick with his face towards the ground about 2 to 3 steps away from Ram Bharose. At the time when Ram Bharose received fire arm injury, he had bent to lift the brick with his face towards the ground about 2 to 3 steps away from Ram Bharose. Towards West, there was mason and towards East of him, was Ahibaran Singh, Asha Ram was about 7 steps away. When the fire arm hit the deceased, then in the West was standing mason and towards East was standing the PW-2 and others. The mason was sitting on the wall. Ram Bharose was being abused. During this period of abusing, sometimes work of construction used to stopped and sometimes it used to be continued. About one and steps away from the wall of Ram Bharose, the bricks were being lifted by Ram Bharose which were being given to mason. Further it is stated that all the four including PW-2 and 3 were standing about three steps away from the said wall towards South and all of them were standing at a distance from each other at about one and one half steps. Rajvir was towards South when he made fire which hit Ram Bharose in the left side in his body in scapular region. 17. In cross-examination, this witness has further stated that the son of Ram Bharose namely, Sukhbir must be around 24-25 years of age who was present at the place where wall was being constructed. At the time when the fire hit the deceased, Sukhbir had gone to take Gara. Lajja Ram and Raghuvir were standing at a distance of five to six steps towards North from mason Doji Ram, while Sukhbir had gone for bringing 'Gara' from near the well which must have been around 25 steps away from there. The deceased Ram Bharose fell down after getting hit although he kept standing for about two to four minutes after getting hit but as soon was he was about to be kept in buffalo cart, he died. The buffalo cart was parked in the Gher at a distance of about six steps. He does not recollect whether any blood had fallen, while Ram Bharose was placed in the said cart. From the place where Ram Bharose had fallen after getting hit at a distance, about two steps, there was baithak in which his dead body was kept. The buffalo cart was parked in the Gher at a distance of about six steps. He does not recollect whether any blood had fallen, while Ram Bharose was placed in the said cart. From the place where Ram Bharose had fallen after getting hit at a distance, about two steps, there was baithak in which his dead body was kept. Further he has stated that a false case was initiated against him regarding having fired upon Ranjeet in which Adiram had given a false evidence in which he had been acquitted. He had denied the suggestion that he was not present on the spot at the time of incident. 18. Apart from above two eye-witnesses' statement, it would be appropriate to refer to the injuries received by the deceased. It is evident from the judgment of the trial court that as many as seven injuries were found to have been sustained by the Ram Bharose (deceased) on his person by Dr. M.C. Gulecha, who conducted the post-mortem, which are as follows:- (1) Fire arm wound of entrance 0.2 cm x 0.2 cm x bone deep of left side back on middle of scapula. Scapula fractured. One metallic pallet recovered from bone. (2) Two fire arm wounds of entrance on left side back 6 cms below lower and of scapula, 3 cms away from each other. Size 0.2 cm x 0.2 cm x cavity deep. (3) Fire arm wound of entrance 0.2 cm x 0.2 cm, muscle deep on left gluteal region 14 cms below upper border of hip bone. (4) Fire arm wound of entrance of 0.2 cm x 0.2 cm x muscle deep on middle of back of left thigh. (5) Fire arm wound of entrance 0.2 cm x 0.2 cm x muscle deep on middle of back of left knee joint. (6) Fire arm wound of entrance 0.2 cm x 0.2 cm x muscle deep on calf muscle, 12 cms below knee. (7) Fire arm wound of entrance 0.2 cm x 0.2 cm x muscle deep on back of left upper arm 6 cms above elbow joint. 19. The said injury memo has been marked as Ext. Ka-15 because learned counsel for the accused had admitted its genuineness. In the said post-mortem report, it has been opined by the doctor that deceased died as a result of above-mentioned ante-mortem injuries. 20. 19. The said injury memo has been marked as Ext. Ka-15 because learned counsel for the accused had admitted its genuineness. In the said post-mortem report, it has been opined by the doctor that deceased died as a result of above-mentioned ante-mortem injuries. 20. We would like to also take into consideration the site plan and evaluate as to whether in the light of statements given by PW-1 and PW-2, the site plan appears to be correctly prepared. 21. In the site plan Ext. Ka-11, by "A" is shown the place where the deceased was picking up the bricks and by "B" is shown the place which is 35 yards away across the river, towards South from where, fire was made upon the deceased Ram Bharose, who fell down at place "C" after getting injured. The distance between place "A" and "C" is shown to be three steps only. Beside the wall, there blood was also found spilt. From the place shown by "B", the other accused Udaivir is stated to have made fire upon witnesses by country made pistol. From "D" is shown the place where witnesses were standing which was at a distance of seven to eight steps from the place shown by "A" and by "E" is shown the place which is five steps away from the place where accused Hirday Ram and Adiram were standing at the time when fire was made by accused. By "F" is shown the place where dead body was found for preparation of panchayatnama. From the place of incident, the field of Ahibaran Singh is shown at a distance of 50 steps away and the field of Asha Ram is shown at a distance of 55 steps away. From "G" is shown the place from where Soran Singh and others heard the quarrel/abusing and from there they reached the place of occurrence and by "double arrow" is shown the place from where accused had fled in the south after giving effect to the occurrence. 22. From "G" is shown the place from where Soran Singh and others heard the quarrel/abusing and from there they reached the place of occurrence and by "double arrow" is shown the place from where accused had fled in the south after giving effect to the occurrence. 22. If we read the statement of PW-1 and PW-2 in the light of above site plan, no infirmity is found as regards the occurrence having taken place at the place shown by "A" which is towards southern side of the house of the informant where wall is shown being constructed and from "B" which is 30-35 yards away from "A" towards south of the place where incident occurred and from this place shown by "D" main accused-Rajvir is stated by PW-1 to have fired by his gun which hit the deceased. 23. Learned counsel for the appellants has tried to convince the court though unsuccessfully that PW-1 has stated that Rajvir and Udaivir, both initially came with their respective arms near the wall where the deceased got hit and subsequently they returned to a place near their house shown by "B" which is at a distance about 30-35 yards away across the pond from where Rajvir fired upon the deceased, therefore, Rajvir could not be attributed the intention to kill the deceased as if he had the said intention he would not have returned to place "D" and would have made fire from close range at place shown by "A" itself. 24. We are not convinced with the said argument because it appears that learned counsel for the appellants is trying to draw wrong conclusion by the statement of PW-1 that the accused Rajvir had, initially after being armed with the said weapon came near the wall where new wall was being raised, in fact the said wall, from where he is said to have fired, was being referred the wall of his own house and from there he is said to have fired upon the deceased from a distance of about 30 to 35 yards away and the same is also corroborated by the medical examination report because no tattooing or blackening has been found in the injuries caused to the deceased. All the said injuries which are mentioned above are pallet injuries which were possible to be caused by single arm as these were pallet injuries in dispersed area. All the said injuries which are mentioned above are pallet injuries which were possible to be caused by single arm as these were pallet injuries in dispersed area. As regards other accused Udaiveer, it has come in evidence of PW-1 and PW-2 that the fire made by the country made pistol by him did not hit anyone, therefore, we are of the opinion that it is only Rajvir, who ought to have been held guilty by the learned trial court instead of Udaivir and other two accused Hirday Ram and Adiram, who were attributed the role of exhortation. 25. There appears to be element of truth in the argument of learned counsel for the appellants that since all the accused belong to one family, the entire family has been sought to be implicated by attributing role to two out of them of exhortation and to the remaining two of making fire upon the deceased and others but the said version does not appear to be true. It is the duty of the court to sift grain from the chaff and we find that the statement of PW-1 and PW-2, who are said to be present on the place of incident when this occurrence happened, proved that it was only Rajvir whose shot actually caused serious injuries to the deceased which resulted in his death, therefore, he ought to have been held guilty of charge under Section 302 simplicitor. 26. We are also not inclined to agree with the view of the learned counsel for the appellants that the said act of the accused Rajvir would fall under Section 304(I) IPC as no intention could be imputed to him to cause death of the deceased, who belonged to the same family and was a collateral because if someone is aiming upon somebody with a fire arm and actually opening fire, it cannot be said that he would not have an intention to kill a person upon whom he fired after taking aim, because intention will definitely be attributed of killing in this case. 27. 27. We are although of the opinion that other three accused out of whom one Hirday Ram is reported to have died in the year 1999 and his appeal has been abated on 17.7.2018, do not appear to have any role to play in giving effect to the present occurrence because informant himself has admitted that he had lodged some part in the complaint wrongly because of being under grief, hence it could not be ruled out that their implication may have been made because of enmity with a view to implicating the whole family. 28. Further argument of learned counsel for the appellants that no recovery of any weapon of assault was made from the accused-Rajvir does not appeal to reason because when eye-witness account is there against the said accused who had made fire upon the deceased, recovery of weapon has no significance. 29. The statement of PW-3 and PW-4 being formal witnesses is not being analyzed in detail. In our opinion, by the analysis which we have made above, we are of the confirmed opinion that accused- Rajvir only deserves to be held guilty under Section 302 IPC simplicitor and rest of the two accused namely Adiram and Udaivir need to be given benefit of doubt. 30. Accordingly, we allow the appeal of Adiram and Udaivir, they are not held guilty under Section 302 read with Section 34 IPC and deserve to be acquitted, while accused Rajvir deserves to be held guilty under Section 302 IPC simplicitor and also hold that no prejudice would be caused by holding him guilty under Section 302 IPC simplicitor, though no charge under Section 302 IPC simplicitor has been framed against him by the trial court because he has been given full opportunity to defend himself. The appeal of the accused- Rajvir is dismissed, he shall be taken into custody, his bail bonds shall stand discharged. 31. Accordingly, the present appeal is partly allowed. 32. The accused-appellants Adiram and Udaivir are already on bail, hence they need not be taken into custody. The trial court shall obtain bail bonds from them under Section 437 (1) Cr.P.C. 33. Let a copy of this judgment be transmitted to the trial court forthwith for necessary information and compliance.