JUDGMENT : Arvind Kumar Mishra-I and Gautam Chowdhary, JJ. 1. Heard Sri S.P. Giri, learned counsel for the appellant No. 1 Girraj Singh, learned A.G.A. for the State and perused the material brought on record. 2. In this case, the appellant Nos. 2 and 3 namely Jalim Singh and Fatte Singh have since expired during pendency of this appeal, therefore, the instant appeal against them stood abated on 20.8.2018. The instant appeal pertains to the surviving appellant No. 1 Girraj Singh. 3. By way of instant appeal. challenge has been made to the authenticity and veracity of the judgment and order of conviction dated 15.2.1986 passed by the IInd Additional Sessions Judge. Mathura in Session Trial No. 174 of 1985. State v. Giriraj Singh and others, arising out of Case Crime No. 113 of 1984 under Section 302, I.P.C.. P.S. Baldev, District Mathura whereby the trial Judge has recorded judgment of conviction against the surviving appellant Girraj Singh and sentenced him under Section 302/34, I.P.C. to imprisonment for life. 4. Brief facts of the case as discernible/relevant for the adjudication of this appeal appear to be that a written report was lodged by the informant. P.W. 4 Basant Kumar, at Police Station Baldev. District Mathura on 25.6.1984 at 7.10 a.m. with the allegations that Munga Rani, his maternal grand-father had been owning 25 bighas of land, which was given to the informant's mother by executing a Will two years ago. Jalim Singh and Girraj Singh sons of Dani Ram are the nephews of Munga Ram, they prepared a fake agreement to sell dated 28th March, 1984, for 25 bighas of land regarding which a suit was instituted by the maternal grandfather of the informant, due to which there was enmity between them. On account of that enmity, it so happened that the informant was sleeping on the cot with his maternal grand-father on 24.6.1984 and at the same time Hoti Lal and two other persons were also sleeping on their respective cots at short distance. It was around 10.00 p.m. when Girraj Singh, Jalim Singh and Fatte Singh appeared on the spot and asked that since the land was not given to them, therefore, he (the informant's maternal grand-father) will not be spared. After saying so. Jalim Singh opened fire on the deceased Munga Ram. due to which he died on the spot. It was around 10.00 p.m. when Girraj Singh, Jalim Singh and Fatte Singh appeared on the spot and asked that since the land was not given to them, therefore, he (the informant's maternal grand-father) will not be spared. After saying so. Jalim Singh opened fire on the deceased Munga Ram. due to which he died on the spot. The incident was also witnessed by Hoti Lal and Lakhan Singh. It was stated that the dead body was lying in the village. Report be lodged and action be taken. This written report Is Exhibit Ka-4. 5. On the basis of the check F.I.R. (Ext. Ka-5), its corresponding G.D. entry was prepared, which Is Ext. Ka-6, and the case was registered under Section 302, I.P.C. and the investigation ensued and it was entrusted to Ajay Kumar Yadav P.W. 5, who pursuant to the lodging of the F.I.R., took note of the relevant contents of the F.I.R, made entry In the G.D. and proceeded to the spot around 9.00 a.m. for preparing inquest report. 6. A perusal of the record reflects that after the report was lodged by the informant, the Inquest was prepared, which commenced at 9.00 a.m. and completed at 10.15 a.m. on 25.6.1984. Thereafter, on the basis of the relevant papers and the statement of the inquest witnesses, It was thought proper for sending the dead body for post-mortem examination in order to ascertain cause of death. In the process, certain papers were prepared by the Investigating Officer for sending the dead body for conduction of postmortem examination to the mortuary. These papers have been proved as Ext. Ka-7, Ext. Ka-8. Ext. Ka-9. Ext. Ka-10 and Ext. Ka-11. Consequently, the post-mortem examination was conducted by Dr. R.C. Chauhan P.W. 3, at 3.00 p.m. on 26.6.1984 who noted the following ante-mortem injuries: 1. Firearm wound of entry 1.5 cm. x 1.5 cm. x cavity deep on front of right chest, 5 cm. superior and medial to right nipple. Lung Is protruded out. Margin lacerated and inverted. Blackening present around the wound. 2. Firearm wound of exit 3 cm. x 3 cm. x cavity deep on back of the left side abdomen in middle part, 6 cm. superior and medial to left posterior Iliac crest, Margin everted. Loops of intestine coming out, communicated to injury No. 1. 7. Lung Is protruded out. Margin lacerated and inverted. Blackening present around the wound. 2. Firearm wound of exit 3 cm. x 3 cm. x cavity deep on back of the left side abdomen in middle part, 6 cm. superior and medial to left posterior Iliac crest, Margin everted. Loops of intestine coming out, communicated to injury No. 1. 7. In the opinion of the doctor, the cause of death was shock and hemorrhage due to ante-mortem injuries. The testimony of the doctor P.W. 3 shows that death might have occurred in the intervening night of 24/25.6.1984 at 10:00 p.m. He has proved the post-mortem examination report which is Exhibit Ka-1. 8. Record further reflects that the Investigating Officer P.W. 3, also prepared the site plan Exhibit Ka-12 and also collected head/cap of the cartridge (Tikli) and prepared the memo of the same which is Exhibit Ka-13. Besides, he prepared memo of the simple and blood-stained clay which is Ext. Ka-14. He also prepared memo of the lantern Exhibit Ka-15 and recorded the statement of Hoti Lal, Lakhan Singh and the informant's mother. He has proved the memo of vest Ext. Ka-16 prepared by Head Constable Shri Kishan. After completing the investigation, he filed the charge-sheet Ext. Ka-17 against the accused. 9. As a sequel to that, the case was committed to the Court of Sessions from where it was transferred for conduction and disposal of trial to the aforesaid trial court i.e.. IInd Additional Sessions Judge. Mathura who after hearing the accused-appellant and the prosecution on point of charge and perusing the record was satisfied with prima facie case against the accused-appellant and accordingly, framed charge under Section 302/34, I.P.C. Charge was read over and explained to the accused-appellant who abjured the charge and opted for trial. 10. Thereafter, the prosecution was required to adduce its testimony in support of the charge in order to establish guilt of the accused-appellant beyond reasonable doubt. In turn, the prosecution produced in all seven witnesses, reference of whom is given herein below: 11. Hoti Lal P.W. 1 and Lakhan Singh P.W. 2, are eye-witnesses and they have admitted the occurrence but have turned hostile on the point of identification of the culprits/assailants as to who caused the incident, they have been declared hostile and cross-examined by the prosecution as well. Dr. Hoti Lal P.W. 1 and Lakhan Singh P.W. 2, are eye-witnesses and they have admitted the occurrence but have turned hostile on the point of identification of the culprits/assailants as to who caused the incident, they have been declared hostile and cross-examined by the prosecution as well. Dr. R.C. Chauhan P.W. 3 who conducted the postmortem examination has proved the same. Basant Kumar P.W. 4, the Informant is also the eye-witness of the occurrence. He has supported the prosecution version and has proved the written report Exhibit Ka-4. S.I. Ajay Kumar Yadav P.W. 5 is the Investigating Officer. He has detailed various steps taken in completing the investigation and has filed charge-sheet Ext. Ka-1. However, he also proved the entry made in the check F.I.R. and the relevant entries made in the concerned CD. whereby the case was registered against the accused. Shiv Lal P.W. 6 is the Constable who took the dead body of Munga Ram to the mortuary and has proved the fact before the trial court. Virpal Singh P.W. 7 is the constable, he brought the chemical report and various material from the laboratory at Agra. 12. Except as above, no other testimony was adduced by the prosecution. Consequently, evidence for the prosecution was closed and statement of the accused-appellant was recorded under Section 313, Cr. P.C. wherein the incident has been specifically denied by the accused-appellant and It has been claimed that he has been falsely implicated In the present case on account of enmity. He has further submitted that some miscreants had committed the incident and Basant Kumar has wrongly and falsely roped In him in this case. 13. The defence got examined Man Singh D.W. I who scribed the written report and has tried to persuade the court that he, in fact. was called around 8.00 to 9.00 p.m. the next day after the occurrence took place and then the written report was scribed by him. No other evidence was adduced. Thereafter, evidence for the defence was closed and the case was posted for arguments. 14. Learned trial Judge after hearing the parties on merit recorded aforesaid finding of conviction against the accused-appellant and sentenced him to Imprisonment for life under Section 302/34, I.P.C. vide impugned Judgment and order dated 15.2.1986. 15. Consequently, this appeal. 16. No other evidence was adduced. Thereafter, evidence for the defence was closed and the case was posted for arguments. 14. Learned trial Judge after hearing the parties on merit recorded aforesaid finding of conviction against the accused-appellant and sentenced him to Imprisonment for life under Section 302/34, I.P.C. vide impugned Judgment and order dated 15.2.1986. 15. Consequently, this appeal. 16. It has been vehemently contended on behalf of the accused-appellant that there is no specific motive for the accused-appellant to indulge in any such act as alleged against him. Moreso, had he participated in the incident at the time and on the date of the occurrence then he must not have appeared on the scene empty handed without any weapon. At the most, the case is made out against the co-accused Jalim Singh who is stated to have opened fire on the deceased Munga Ram. There is only one firearm wound In the shape of entry wound as well as exit wound. Peculiarity of this case is that there are witnesses who are said to have witnessed the incident. However, two of the eye-witnesses namely P.W. 1 and P.W. 2 have not supported the case of the prosecution. The case does not attract the provisions of Section 34, I.P.C. and no culpability can be fastened upon the accused-appellant on the ground of applicability of common intention. 17. It has been further contended that apart from various other aspects of the case, F.I.R. is ante-timed and was not lodged at the time when it Is stated to have been lodged at 7.00 a.m. on 25.6.1984. The testimony of Maan Singh D.W. 1 in that regard cannot be overlooked that gives credence to the case of the accused-appellant that his involvement is afterthought and it is due to deliberation between the police and the informant. 18. While replying to the aforesaid argument, learned A.A.G. assisted by the learned A.G. As. has claimed that in this case, the quality of the evidence regarding the occurrence alleged to have been caused at 10.00 p.m. on 24.6.1984 In the intervening night of 24/25.6.1984 cannot be denied In view of the Innocuous testimony of the eye-witness Basant Kumar P.W. 4. While replying to the aforesaid argument, learned A.A.G. assisted by the learned A.G. As. has claimed that in this case, the quality of the evidence regarding the occurrence alleged to have been caused at 10.00 p.m. on 24.6.1984 In the intervening night of 24/25.6.1984 cannot be denied In view of the Innocuous testimony of the eye-witness Basant Kumar P.W. 4. No doubt, the other two independent witnesses were also present and their names have been mentioned in the F.I.R., but they have been won over by the defence as they resiled from their statement recorded earlier under Section 161, Cr. P.C. and are not stating the correct fact. However, their testimony after all confirms and establishes the time of the occurrence as 10.00 p.m. To say, that the unknown assailants committed the incident is nothing but an argument without any basis not supported by the attendant circumstances of the case and not a single suggestion has been made to Basant Kumar P.W. 4, eye-witness In regard to the commission of the offence by any other person. That being the case, the incident stands proved beyond all reasonable doubt against the appellant. 19. So far as the applicability of ingredients of Section 34, I.P.C. is concerned, the totality of the circumstances when taken as a whole establishes the prevalence of common intention amongst all the three accused, who conjointly committed the offence. No doubt, Jalim Singh caused the firearm injury and the other two assailants, who were empty handed, were present on the spot, but they shared the common intention and had only one motive to kill the deceased Munga Ram. That way, the case of the prosecution under Section 302/34, I.P.C. stands proved against the appellant beyond reasonable doubt. Evidence on record profusely indicates involvement of the accused-appellant in the occurrence. The trial court has taken correct view of law and facts and has justifiably recorded conviction against the accused-appellant. 20. We have considered the respective submissions and also perused the entire record. 21. Evidence on record profusely indicates involvement of the accused-appellant in the occurrence. The trial court has taken correct view of law and facts and has justifiably recorded conviction against the accused-appellant. 20. We have considered the respective submissions and also perused the entire record. 21. As far as the incident is concerned, a bare perusal of the first information report is indicative of the fact that the incident occurred at 10.00 p.m. in the intervening night of 24/25.6.1984 regarding which description has come forth that it was around 10.00 p.m. Girraj Singh..Jalim Singh and Fatte Singh arrived on the spot and asked the deceased that they will not spare him because he has not given his land to them. Upon saying so, Jalim Singh opened fire on the deceased Munga Ram by a single shot which caused his death. In that regard, ocular testimony of the prosecution witnesses of fact becomes relevant for Its evaluation and appreciation. 22. The testimony of the two eyewitnesses say-Hoti Lal P.W. 1 and Lakhan Singh P.W. 2 on the point of the occurrence is indicative of fact that some Incident occurred at 10.00 p.m. in the intervening night of 24/25.6.1984. However, these two witnesses could not identify the assailants as to who committed the crime. At this stage, these two prosecution witnesses were confronted with cross-examination recorded by the Investigating Officer in which they had clearly Indicated/stated that they saw Jalim Singh, Girraj Singh and Fatte Singh committing the offence in the illuminated light of the lantern. These two witnesses have been challenged specifically that they have been won over by the defence due to which they are not siding with the prosecution. These suggestions have been denied by these two witnesses. 23. Now. the story does not complete here and proceeds on to the appreciation and analogy of the testimony of Basant Kumar P.W. 4, the informant who is also an eye-witness. He has detailed the entire incident and has proved the version recorded in the first information report. He has stated that it was 10.00 p.m. in the intervening night of 24/25.6.1984 when the incident occurred and the incident was witnessed in the light of the lantern, which was Illuminating light over there at five to six paces. He has detailed the entire incident and has proved the version recorded in the first information report. He has stated that it was 10.00 p.m. in the intervening night of 24/25.6.1984 when the incident occurred and the incident was witnessed in the light of the lantern, which was Illuminating light over there at five to six paces. Jalim Singh was possessing the gun in his hand and two other accused present were empty handed, they asked the maternal grand-father of the informant P.W. 4 that since he did not give them the land, therefore, they are firing on him and after firing, they secured their escape. The incident was witnessed by him, blood oozed out from the deceased and it clotted his waist. The deceased died on the spot. 24. The point is that insofar as the time and place of the occurrence is concerned, it is virtually proved by testimony of all the three witnesses but insofar as identifiably and the involvement of the accused in the commission of the offence is concerned, testimony of Basant Kumar P.W. 4, on its face, is innocuous, consistent to the point and nothing concrete or adverse has emerged even in the strenuous cross-examination which may create any doubt about the involvement of the accused in the offence that the incident was not committed by the present accused but by some unknown or unidentified person. That way, testimony of P.W. 2 and P.W. 4 when taken In wholesome then a cumulative study and reading would indicate fact of participation with same intent stands proved against the present accused alongwith others in the incident. 25. Now, insofar as the point of prevalence of common intention on the spot against the accused is concerned, the same is found to be based on the analogy of the facts and circumstances of the case and scrutiny of the evidence on record. while insofar as the occurrence is concerned, it is stated that three persons including the appellant-accused arrived on the spot and asked the deceased for a while thereafter one single shot was fired by Jalim Singh, the another co-accused and thereafter all the three co-accused secured their escape then natural and reasonable analogy would be that all the three have one motive and the same mens rea to commit the offence because as per Section 34. I.P.C. a criminal act when committed by several persons in furtherance of common intention of all each one of such person shall be responsible for the act of another, as if, it was done by him alone. That way, the liability is imputed on the appellant that he had the same Intention as was there for the other co-accused say-Jalim Singh and another present on the spot, their presence on the spot has not been challenged by the defence. 26. We also take note of testimony of doctor witness Dr. R.C. Chauhan. P.W. 3 who noted two ante-mortem injuries in the shape of entry wound and exit wound and has proved the post-mortem examination report Exhibit Ka-1, even not a single suggestion has been made to the doctor that the incident did not occur at 10.00 p.m. in the intervening night of 24/25.6.1984. 27. May be that the Investigating Officer committed minor lapses at the time of the investigation, but these lapses on the part of the Investigating Officer cannot be considered to be material one carrying weight to throw the entire prosecution version. Once the incident stands proved, participation of the accused in the incident Is cogently proved by the evidence of the prosecution witnesses at the time and place of occurrence and nothing adverse emerges in the cross-examination of the eye-witness Basant Kumar P.W. 4, then only conclusion drawn from the evidence, facts and circumstances of the case is the guilt of the accused. 28. In view of above discussion, the prosecution has been able to establish reasonably guilt of the accused under charges brought against him and the prosecution has proved its case beyond reasonable doubt. 29. Learned trial court while appraising the evidence on record and marshaling facts considered every aspect of the case and has recorded just finding of conviction against the appellant and has imposed proper sentence under Section 302/34 against him which warrants no interference by us in instant appeal. We uphold the judgment and order of conviction dated 15.2.1986 passed by the IInd Additional Sessions Judge, Mathura In Session Trial No. 174 of 1985. State v. Giriraj Singh and others, arising out of Case Crime No. 113 of 1984 under Section 302. I.P.C.. P.S. Baldev. District Mathura. 30. In the result, the instant appeal being devoid of merit is dismissed. In this case, appellant Girraj Singh Is on ball. State v. Giriraj Singh and others, arising out of Case Crime No. 113 of 1984 under Section 302. I.P.C.. P.S. Baldev. District Mathura. 30. In the result, the instant appeal being devoid of merit is dismissed. In this case, appellant Girraj Singh Is on ball. His bail bonds are cancelled and sureties are discharged. He shall be taken Into custody forthwith for serving out his remaining sentence imposed upon him by the trial court. 31. Let a copy of this judgment/order be certified to the court concerned for necessary information and follow up action.