Research › Search › Judgment

Allahabad High Court · body

2022 DIGILAW 1034 (ALL)

Ram Gati @ Prem Chandra v. State of U. P.

2022-07-07

MANOJ MISRA, SYED AFTAB HUSAIN RIZVI

body2022
JUDGMENT : 1. This appeal is against the judgment and order dated 04.08.2010, passed by the Sessions Judge, Basti in Sessions Trial No.137 of 2007, arising out of Case Crime No.178 of 2007 (State Vs. Ram Gati alias Prem Chandra and others), P.S. Khalilabad, district Sant Kabir Nagar, whereby the appellant has been convicted under Sections 302 and 452 I.P.C. and sentenced as follows: imprisonment for life and fine of Rs.5,000/-, coupled with a default sentence of six months, under Section 302 I.P.C.; and four years R.I. and fine of Rs.3,000/-, coupled with default sentence of three months, under Section 452 I.P.C. Both sentences to run concurrently. 2. Four persons, namely, Ram Gati @ Prem Chandra (the appellant), Vijay Kumar, Daya Shankar and Krishna Chandra were put to trial. The appellant was charged for offences punishable under Sections 302 and 452 I.P.C. and Section 25/27 Arms Act whereas, co-accused Vijay Kumar and Krishna Chandra were charged for offences punishable under Sections 452 and 302 read with Section 34 I.P.C. The fourth accused, namely, Daya Shankar, was charged for offence punishable under Section 120-B I.P.C. The appellant though was acquitted of the charge of offence punishable under Section 25/27 Arms Act but has been convicted for other offences as noticed above; whereas, co-accused, Vijay Kumar, Krishna Chandra and Daya Shanker have been acquitted. Hence, this appeal is confined to the accused-appellant (Ram Gati alias Prem Chandra) in respect of his conviction for offences punishable under Sections 452 and 302 I.P.C. INTRODUCTORY FACTS 3. Hence, this appeal is confined to the accused-appellant (Ram Gati alias Prem Chandra) in respect of his conviction for offences punishable under Sections 452 and 302 I.P.C. INTRODUCTORY FACTS 3. The prosecution case is that there was an old standing enmity between informant-Ram Shabad (PW-1) and the appellant on account of land dispute; that on account of this enmity, the appellant had always been on the lookout to cause harm to the informant and his family; that on 24.01.2007, while the informant was at his Baithak, his wife-Kishori (PW-10) and his elder daughter Nirmla (the deceased) inside the house and his younger daughter-Pramila (PW-2) outside, near the tap/tube-well, filling water, at about 7.15 pm, Ram Gati (the appellant), co-accused Vijay Kumar, Daya Shanker and Krishna Chandra came at the door of informant’s house with country made pistol, Lathi/Danda and asked informant’s younger daughter, namely, Pramila (PW-2), as to where her father and brothers were, when PW-2 refused to divulge any information about them, the accused persons entered the house; at this stage, informant’s elder daughter Nirmla (the deceased) objected and warned the accused not to enter the house; on account of her intervention, Daya Shankar exhorted the accused, upon which, Ram Gati (the appellant) fired a shot at Nirmla, as a result, Nirmla died on the spot; on hearing the noise of gunshot, the informant, his wife (PW-10) and other villagers, namely, Surendra, Jhinku (PW-3), Babu Lal etc. arrived with Lathi/Danda and torch and challenged the accused, as a result, all the four accused escaped. By making all these allegations, written report (Exb.Ka-1) was lodged by PW-1 at police station Kotwali Khalilabad, district Sant Kabir Nagar where it was registered as Case Crime No.178 of 2007 at 20.35 hrs on 24.01.2007 of which chik FIR (Exb.Ka-5) and GD entry (vide report no.52) (Exb.Ka-6) was made by PW-5. 4. After registration of the FIR, Chhedi Prasad Yadav, SSI (PW-7) proceeded to the spot with his team of officers and carried out the inquest proceedings. On completion of inquest proceedings by 22.50 hrs, the inquest report (Exb.Ka-9) was prepared by S.I. Paras Nath Mishra whose signatures were identified and proved by PW-7. 5. During investigation, Chhedi Prasad Yadav (PW-7) lifted plain earth/blood stained earth from the spot and prepared its seizure memo (Exb.Ka-10). On completion of inquest proceedings by 22.50 hrs, the inquest report (Exb.Ka-9) was prepared by S.I. Paras Nath Mishra whose signatures were identified and proved by PW-7. 5. During investigation, Chhedi Prasad Yadav (PW-7) lifted plain earth/blood stained earth from the spot and prepared its seizure memo (Exb.Ka-10). PW-7 also prepared challan nash, photo nash and other documents in connection with autopsy, which were exhibited as Exb.Ka-11 and Ka-14 and, after sealing the body of the deceased, sent the same for autopsy. On 25.01.2007, Station House Officer of the police station concerned, namely, Vijay Shankar (PW-8), took over the investigation of the case. 6. On 25.01.2007, Vijay Shankar (PW-8) visited the spot and prepared site plan (Exb.Ka-15). He recorded the statement of informant-Ram Shabad and eye witnesses, namely, Kishori Devi (PW-10), Pramila (PW-2), Jhinku (PW-3), Babu Lal, Surendra including witnesses of inquest. In between, Jhinku (PW-3) produced a torch before the Investigating Officer in the light of which he witnessed the incident. The same was found in a running condition and a custody memo of that torch (Exb.Ka-3) was prepared with a direction to produce it in court as and when required. Similarly, custody memos of the torch used by witnesses Surendra and Babu Lal were prepared and were exhibited during the course of trial as Exb.Ka-2 and Ka-4. Likewise, the custody memo of lantern and torch used by the informant and his family to witness the incident was prepared and proved by the I.O. (PW-8), which was exhibited as Exb.Ka-26. 7. On 25.01.2007, at about 3.30 pm, the autopsy of the body was conducted by Dr. Pankaj Khare (PW-6). The autopsy report (Exb.Ka-8) records : (i) Female body, aged about 20 years, average built, mouth and eye closed, rigor mortis present in all the four limbs. Blood clot present over face and head; (ii) Ante-Mortem injuries : (a) Wound of Entry -Firearm wound of entry 2 cm x 1.5 cm x bone deep on left side of parital area of head just above the left eyebrow. Margins of wound irregular & inverted about one cm diameter of bone chip absent; Direction-oblique. Blood clot present over face and head; (ii) Ante-Mortem injuries : (a) Wound of Entry -Firearm wound of entry 2 cm x 1.5 cm x bone deep on left side of parital area of head just above the left eyebrow. Margins of wound irregular & inverted about one cm diameter of bone chip absent; Direction-oblique. Tattooing and charring present in an area of 10 cm x 9 cm around the wound; Singing of eyebrows & scalp present; (b) Exit wound -of firearm present 3 cm x 2.5 cm on right side of back of head in occipital area 6 cm above and behind right ear. Margins of wound are irregular and everted. On probing, the probe passed from wound of entry to exit. Left to right oblique. Underneath, the left side frontal and parital and right back occipital and parital bone fractured. Wide spread laceration and haematoma present in brain substance and brain matter popping out from wound of exit. (iii) Internal Examination – semi-digested food about 150 grm present in stomach; pasty material and gases in small intestine; whereas, faecal material and gases found in large intestine. (iv) Opinion : Death due to shock and haemorrhage as a result of ante-mortem firearm injury. (v) Duration : About one day before. 8. During the course of investigation, police custody remand of the appellant was obtained. On 24.02.2007, a country made pistol .315 bore, one live cartridge and one empty cartridge of .315 bore were recovered from the house of the appellant on his pointing in respect of which recovery memo (Exb.Ka-16) was prepared by PW-8. After conclusion of the investigation, charge-sheet (Exb.Ka-13) was submitted against the appellant under Sections 452 and 302 IPC and 25 Arms Act whereas the other accused, except Daya Shankar, were charged for offences punishable under Sections 452 and 302 IPC. Daya Shankar was charged for offence punishable under Section 120-B IPC. 9. After taking cognizance on the charge-sheet, the case was committed to the court of session. On commital of the case, the appellant Ram Gati was charged for offence punishable under Sections 302 and 452 IPC and Section 25/27 Arms Act; whereas, accused Vijay Kumar and Krishna Chandra were charged for offence punishable under Section 302 read with Section 34 and 452 IPC; and accused Daya Shankar was charged for offence of conspiracy for murder punishable under Section 120-B IPC. All the accused pleaded not guilty and claimed to be tried. PROSECUTION EVIDENCE 10. During the course of trial, the prosecution examined eleven witnesses. Their testimony, in brief, is as follows : 11. PW-1 – Ram Shabad. He is the father of the deceased. He proved the lodging of the FIR, which was marked as Exb.Ka-1. He stated that at the time of the incident, he was at the Baithak, outside the house. He witnessed the incident as narrated in the FIR through the Jangla (window) of the room in which the deceased was at the time the shot was fired at her and could recognize all the accused persons. During cross-examination, he stated that he is employed in a workshop at Gorakhpur where he works in a paint shop. His duty hours are from 7 am to quarter to 12 noon and, thereafter, from 12.30 pm to quarter to 5 pm. He stated that in connection with his job, on a daily basis, he goes to and comes back from Gorakhpur. He stated that he has two sons and two daughters, the daughter who has been murdered was the eldest, younger to her is Jeet Narayan. The third is Pramila (PW-2) and the youngest is Surya Narayan. He stated that Jeet Narayan is aged 19 years and is un-married, whereas, Surya Narayan is aged about 10 years. Nirmla, the deceased, was aged 20 years at the time of the incident; whereas, Pramila is aged 14-15 years. He stated that Nirmla was a student of B.A. PW-1 admitted that prior to the incident, there was a case registered against him in respect of assaulting Salwal and others of which there was a cross case as well. He stated that on 01.01.2007, the appellant, Vijay Kumar, Daya Shankar and Salwal had assaulted PW-1’s relative and had damaged his motorcycle in respect of which a case was registered against them. Prior to that incident, on report of Salwal, proceeding under Section 107 CrPC was instituted against Shiv Narayan, Jeet Narayan and others wherein surety bonds were furnished by them. He, however, admitted that he had received information about a proceeding under Section 145 CrPC. With regard to his presence at the place and time of the incident, PW-1 was asked as to by which train he arrived in the village on that day. He, however, admitted that he had received information about a proceeding under Section 145 CrPC. With regard to his presence at the place and time of the incident, PW-1 was asked as to by which train he arrived in the village on that day. In response to that question, PW-1 stated that he does not remember the name of the train but, probably, it might be Vaishali. He stated that he boarded the train at about 5.00 pm and reached Khalilabad station by quarter to 6 pm and from there he cycled to his house and reached his house by 6.30 pm. In respect of the structure of his house, PW-1 stated that his house is double storeyed having one outer door. Both door and window are towards north. He stated that except that outer door, which opens towards north, there is no other entry/exit point to his house. He stated that the door on the north is actually located in the Verandah of his house and is in the form of two channel shutters facing north, making the Verandah look like a room. PW-1 stated that towards north of that door, at a distance of 8, or may be 5, Kattha he has his Baithak. On further examination, PW-1 stated that though the night was dark, about 1 and ½ hours had passed after sun set, but there was lantern light in his house. Though, there was no lantern lit near the Baithak where he was sitting. PW-1 stated that in the south-west corner of his house, about one Bigha away, there is house of appellant-Ramgati. PW-1 denied the suggestion that at the time of incident he was sitting at the Baithak with his wife-Kishori (PW-10), Babu Lal, Jhinku (PW-3) and Surendra and drawing heat from Kauda (fire place). He reiterated that at the time of the incident, he was alone at the Baithak whereas, his daughter Pramila (PW-2) was near the tap/tube-well; his wife Kishori (PW-10) was inside the house; his elder daughter Nirmla (the deceased) was in the room near the Verandah; his elder son Jeet Narayan had gone to visit a relative; and his younger son Shiv Narayan had gone to have dinner on an invite. PW-1 specifically stated that his wife (PW-10) was in a room on the ground-floor of the house. PW-1 specifically stated that his wife (PW-10) was in a room on the ground-floor of the house. He stated that at 7.15 pm he spotted all the four accused arriving at the door of his house. They were spotted in the light of lantern and torch. The accused had not covered their faces. The accused were spotted from a distance of 20-25 paces or may be 20-25 meters. He stated that when he spotted the accused at the door of his house, he raised no alarm. Rather, he hid himself and kept silent. PW-1 further stated that Ram Gati held Katta, whereas, the others were armed with Lathi/Danda. He stated that in the room where Nirmla was present, there was a big door and that room’s dimensions must be 15’ x 9’. A lantern was lit in that room. The room had a wooden cot, Sandook (box) and Almirah where household goods were kept. He stated that from PW-10’s room, the room of Nirmla was clearly visible through its door. On further questioning, he reiterated that accused Ram Gati fired a shot at Nirmla. He stated that he witnessed the incident through the window of that room. PW-1 also stated that the other three accused were trying to break the lock put on the box. He stated that when the gunshot was fired, PW-10 and PW-2 entered that room. The accused abused PW-10 and PW-2 but did not assault them. PW-1 clarified that though he saw the incident from the window but did not enter that room at that time. He specifically stated that when the accused left the spot, witnesses Babu Lal, Jhinku and Surendra arrived. PW-1 clarified that the accused did not spot him. He also stated that witnesses arrived at the spot upon hearing the gunshot and they, including him, chased the accused for about 4-5 Kattha but did not succeed because the accused had country made pistol and were extending threats. PW-1 stated that the accused also fired a shot in the air to threaten them. However, no empty cartridge could be noticed on the spot. He stated that after the accused had escaped, he entered the room and came near the body of his daughter. The body was lying on the floor. PW-1 stated that the accused also fired a shot in the air to threaten them. However, no empty cartridge could be noticed on the spot. He stated that after the accused had escaped, he entered the room and came near the body of his daughter. The body was lying on the floor. He stated that the body was taken to the Baithak to ascertain whether the deceased was alive and whether she should be taken to the hospital but, she was found dead. PW-1 stated that the body was taken out from the room by him, Bablu Lal, Surendra, Subhash and Dinesh. He stated that the gunshot had hit the deceased near her eye and blood had fallen on the spot. He stated that his hands and clothes were also blood-stained. The witness denied the suggestion that the police had arrived at the spot before he could reach the police station. He stated that despite threat extended by the accused he had lodged the report on that very night; that Jhinku and Babu Lal had accompanied him to the police station; that he reached the police station at about 8.30 pm and gave a written report there, which was registered as FIR. PW-1 stated that immediately after registration of the FIR, the police had arrived at the spot. At the spot, near the place of occurrence, people had gathered. When the police inspected the spot and the body, the place was lit up by torches, batteries and lanterns and in their light inquest was conducted. Whereafter, their statements were recorded. The body was taken. He had accompanied the body. The autopsy was conducted on the next day and thereafter, cremation took place. He stated that in connection with the investigation, the I.O. visited his house two or three times. In respect of the distance from where the deceased was shot, PW-1 stated that at the time when the deceased was shot, the accused were 2 ½ to 3 ft away from the deceased. PW-1 again reiterated that he witnessed the incident through the window of that room in which the deceased was, from a distance of 30-35 ft; and that the accused Ram Gati had fired only one shot at the deceased from a distance of 2 to 2 ½ ft upon which the deceased fell on the spot near the Jangla (window) where she was standing. PW-1 denied the suggestion that he was stating for the first time in court that he witnessed the incident from the window. He, however, admitted that this fact was not disclosed in the written report inasmuch as at that time he was in a state of shock and panic. He denied the suggestion that the deceased was killed by dacoits in a dacoity committed in his house. He also denied the suggestion that he had not witnessed the incident. 12. PW-2 – Pramila. She is the younger sister of the deceased. She stated that on 24.01.2007, at about 7.15 pm, while she was filling water from the tap/tube-well located just outside her house, her father was near the Baithak and her mother was in the adjoining room, while her sister (the deceased) was in a room next to the Verandah, Ram Gati (the appellant), Daya Shankar, Vijay Krishna and Krishna Chandra came. Ram Gati had country made pistol in his hand whereas the rest were having Lathi. They enquired from her about her father and brothers. Sensing danger, she did not divulge any information about her father and brothers because Ram Gati and others had a land dispute with her father. She stated that outside in the Sahan there was a lantern lit and inside the room, adjoining it, there was another lantern lit. When she did not give any information to the accused, they forcibly entered the room. The deceased Nirmla tried to stop them. Annoyed by this, Daya Shankar, Krishna Chandra and Vijay Kumar exhorted by saying that she (the deceased) is very talkative, finish her off. On this, Ram Gati (the appellant) fired a shot from a country made pistol at Nirmla. She witnessed the entire incident while standing near the tap in front of the window. She stated that after the shot was fired at the deceased, Ram Gati and others came out from the room. She stated that the entire incident was witnessed by her, her father and her mother. On their alarm, villagers arrived at the spot with Lathi/Danda, lanterns and torches. The accused threatened them and escaped. During cross-examination, the witness stated that she is un-married and by mistake instead of Pita (father), it was mentioned Pati (husband), after her name and before the name of her father Ram Shabad. She clarified that Ram Shabad is her father. On their alarm, villagers arrived at the spot with Lathi/Danda, lanterns and torches. The accused threatened them and escaped. During cross-examination, the witness stated that she is un-married and by mistake instead of Pita (father), it was mentioned Pati (husband), after her name and before the name of her father Ram Shabad. She clarified that Ram Shabad is her father. She stated that she is a student of Class-IX and the deceased was student of B.A. 1st year. She stated that her father (informant) had arrived from his work place at about 6.30 pm. At this stage, the witness stated that she is not aware whether the night was dark or bright but she denied that her father was sitting near a fire place at the time of the incident. She clarified that the room in which the deceased was killed had a window facing north, which is 5-6 paces away from the tap. The tap is towards north of the window. She stated that at the time of the incident when she was filling water from the tap, his father must have been 20-25 paces away, alone at the Baithak. There was no lantern lit near the Baithak though lantern was lit near the channel gate and in the room next to it as well as in the room where the deceased was murdered. In all there were three lanterns lit. She specifically stated that four accused had arrived and they had not covered their faces. She disclosed that she divulged no information to the accused about her father and brothers because she felt that if she had disclosed, they would have killed her father who was at the Baithak. On further examination, she specifically stated that she witnessed the deceased being shot at from the window of the room wherein the deceased was present at the time of the incident. She stated that at the time when the deceased was shot at, the deceased was standing near the window of that room. She denied that the accused had surrounded the deceased though they were present in that room. She also stated that the accused had not broken any article present in the room. She specifically stated that when the deceased was shot at, the deceased fell on the spot near the window of that room and blood also fell there. She denied that the accused had surrounded the deceased though they were present in that room. She also stated that the accused had not broken any article present in the room. She specifically stated that when the deceased was shot at, the deceased fell on the spot near the window of that room and blood also fell there. She denied that information was given to the police on phone; rather, her father had gone to the police station. She stated that at the time when her father had gone to the police station, 23 persons had accompanied him to the police station. She stated that the police arrived there at about 8.30 pm. and had carried the body to the Baithak. She did not witness as to what happened thereafter because she was crying. She stated that her mother had not witnessed the incident from the place from where she witnessed the incident. She concluded by stating that the accused had fired a single shot; that when she witnessed the incident there was no village person except the accused present; that the accused did not fire any shot while effecting their escape; that in the room where the incident occurred, no empty cartridge was noticed; that there was no dacoity in her house; and that her sister was not killed in a dacoity. She also denied the suggestion that whatever she is stating has been tutored to her. 13. PW-3 – Jhinku @ Jhinak. He stated that the incident occurred on 24.01.2007 at about 7.15 pm. At the time of the incident, he was sitting in the house of Babu Lal. When he heard gunshot and alarms, he and Babu Lal rushed to the house of Ram Shabad (informant) with Lathis and torches to notice Ram Gati with country made pistol and other accused with Lathis exiting the Verandah of the house of Ram Shabad and Ram Shabad’s wife (PW10) and daughter Pramila (PW-2) shouting. In that Verandah, a lantern was lit and in the light of that lantern they could recognize the accused. He stated that they made an effort to apprehend the accused but were threatened by them. He proved the custody memo of torches, which were marked as Exb.Ka-2, Ka-3 and Ka-4. During cross-examination, PW-3 stated that at the time of the incident he was not sleeping but was near the fire place of his house. He stated that they made an effort to apprehend the accused but were threatened by them. He proved the custody memo of torches, which were marked as Exb.Ka-2, Ka-3 and Ka-4. During cross-examination, PW-3 stated that at the time of the incident he was not sleeping but was near the fire place of his house. He stated that the distance of his house from the house of Ram Shabad is about 2 ½ Kattha; that though the night was dark but lantern was lit; and that information to the police was given by Ram Shabad on telephone. On further cross-examination, he stated that Ram Shabad had told him that his daughter was killed by accused Ram Gati, Vijay Kumar, Daya Shankar and Krishna Chandra. He stated that he noticed the body of Nirmla in the room. Later the body was taken out. He stated that when he arrived at the spot, the accused were exiting the house of the deceased. They had not covered their face. He stated that he witnessed the accused escaping from a distance of 100 paces. He stated that when he entered the room i.e. where murder had taken place, he did not notice Almirah, boxes etc. open. PW-3 stated that the body was lying in the room near the window. He denied the suggestion that he did not notice the accused escaping from the spot. He also denied the suggestion that un-known dacoits had killed the deceased and because of pattidari and friendship with the informant he is levelling false allegations. 14. PW-4 – Kamta. This witness was examined by the prosecution to prove prior conspiracy for the murder but since the court below has acquitted the accused of the charge of conspiracy, we do not propose to notice the testimony of PW-4. 15. PW-5 – H.C. Ravikant Mani. He proved receipt of the written report and making GD entry in respect thereof, vide report no.52 at 20.35 hrs, and preparation of chik FIR. On his statement, the GD entry was marked Exb.-Ka-6 and the chik FIR was marked Exb.Ka-5. During cross-examination, he stated that Ram Shabad (informant) had brought a written report. He denied the suggestion that the report was lodged after deliberation while sitting at the police station. 16. PW-6 – Dr. Pankaj Khare – Autopsy surgeon. He proved the autopsy report and the entries therein as already noticed above. During cross-examination, he stated that Ram Shabad (informant) had brought a written report. He denied the suggestion that the report was lodged after deliberation while sitting at the police station. 16. PW-6 – Dr. Pankaj Khare – Autopsy surgeon. He proved the autopsy report and the entries therein as already noticed above. He accepted that death could have occurred at or about 7.15 pm on 24.01.2007. The autopsy report was marked Exb.Ka-8 on his statement. During cross-examination, the witness stated that he cannot say with certainty whether the gunshot injury was from a rifle or not, but it was certainly from a firearm. He stated that the injury was not caused by two shots but by one shot because there was one entry wound and the other was an exit wound. In respect of the direction of the shot, PW-6 stated that if a person of the height of quarter to 6 ft fires at a person of the height of 5 ft, the injury of the nature found could be caused. He also stated that the injury caused was from a close distance, which could be between 1 -2 ft. He stated that his estimate about death having occurred a day before may have a variation of three hours on either side. 17. PW-7 -Chhedi Prasad Yadav. He proved the initial steps of the investigation undertaken on 24.01.2007 including preparation of the inquest report and papers relating to autopsy. He stated that he visited the spot immediately after receipt of information and completed the inquest proceeding by 22.15 hrs. He also proved lifting of plain/blood stained earth from the spot. He denied the suggestions that he did not visit the spot in the night and that the body was called to the police station on the next day to complete formalities of inquest. 18. PW-8 – Vijay Shankar. He is the I.O. of the case, who stated that the case was registered on 24.01.2007 while he was not present at the police station; the investigation of the case was started by PW-7 (SSI, Chhedi Prasad Yadav) and, on 25.01.2007, he took over the investigation. 18. PW-8 – Vijay Shankar. He is the I.O. of the case, who stated that the case was registered on 24.01.2007 while he was not present at the police station; the investigation of the case was started by PW-7 (SSI, Chhedi Prasad Yadav) and, on 25.01.2007, he took over the investigation. He stated that he prepared the site plan; recorded the statement of the witnesses of the incident as also of inquest; copied the contents of autopsy report in the case diary on 26.01.2007; recorded the statement of other witnesses, namely, Shiv Prasad, Kanta Harijan; arrested the accused Daya Shankar on 02.02.2007 and, thereafter, applied for police custody remand of the remaining accused who had surrendered in court. He stated that after obtaining police custody remand, the accused Ram Gati was taken from jail to his house and from the house of Ram Gati, at his pointing out, a country made pistol, one empty cartridge and one live cartridge was recovered of which seizure memo (Exb.Ka-16) was prepared. He stated that he prepared site plan of the spot from where the country made pistol was recovered; and that the recovered country made pistol, etc was sealed. The same were produced in court as material Exb.Ka-2, Ka-3 and Ka-4. He stated that after conducting investigation, he filed charge-sheet (Exb.Ka-13). He also obtained sanction for prosecution of appellant under Section 25 Arms Act. He proved the custody memo of lantern and torches produced by the informant and his family members, which was marked as Exb.Ka-26. During cross-examination, PW-8 stated that he recorded statement of the informant who stated that he saw the accused while they were escaping from the spot. PW-8 stated that the informant had not disclosed about the presence of Daya Shankar at the spot though had stated about his involvement in conspiracy. PW-8 stated that at the time of inspection, he noted in the site plan that the window of the room was near the tap/tube-well and it opened towards north. Except that window there was no other window in that room. Though there was a sky light towards west and a door towards east. He stated that blood had fallen on the floor in the northern portion of that room just below the window. Blood was also noticed in between the wooden cot and box kept in that room. Except that window there was no other window in that room. Though there was a sky light towards west and a door towards east. He stated that blood had fallen on the floor in the northern portion of that room just below the window. Blood was also noticed in between the wooden cot and box kept in that room. He stated that he has taken instructions from informant’s wife and daughter Pramila while preparing the site plan. He stated that no cartridge, either empty or live, was found at the spot. He stated that though he prepared the custody memo of torches, lantern etc. but these torches and lantern are not currently present before him in the court. The witness was also cross-examined in respect of recovery of country made pistol but since the appellant has been acquitted of that charge, we do not propose to notice his statement in that regard. 19. PW-9 – Constable 52 Onkar Yadav. This witness is in respect of recovery of country made pistol. But since the accused-appellant has been acquitted of that charge, we do not propose to notice his testimony in detail. 20. PW-10 – Smt. Kishori. She is the mother of the deceased. She stated that the incident is of about 7.30 pm. At that time she was in the verandah of the house. There was a lantern lit there. A lantern was lit outside and another lantern was lit in the room where the deceased was present. In her house in all there are four rooms. At that time, she was alone inside the house. Her younger daughter Pramila (PW-2) was outside, six paces away, near the tap/tube-well, filling water; whereas, her elder daughter Nirmla (deceased) was inside the room. Her husband Ram Shabad (informant) was outside at the Baithak. Her elder son was away on a visit to a relative whereas her younger son had gone to attend a dinner at some Pandit’s place. The accused, namely, Ram Gati, his brother Vijay Kumar and his two brother-in-laws, namely, Krishna Chandra and Daya Shankar, arrived at the door of her house. Ram Gati was having a country made pistol whereas rest were having Lathi/Danda. All of them enquired from Pramila (PW-2) as to where her father and brothers were. The accused, namely, Ram Gati, his brother Vijay Kumar and his two brother-in-laws, namely, Krishna Chandra and Daya Shankar, arrived at the door of her house. Ram Gati was having a country made pistol whereas rest were having Lathi/Danda. All of them enquired from Pramila (PW-2) as to where her father and brothers were. When Pramila did not divulge any information to them, all four entered the house and, passing through verandah, entered the room of the deceased. When her elder daughter Nirmla (deceased) scolded them and warned them not to enter her room, Daya Shankar, Krishna Chandra and Vijay Kumar exhorted Ram Gati. On this, Ram Gati fired a shot at the deceased by a country made pistol. The deceased got injured, fell on the spot and died instantaneously. Several questions were put to her to ascertain whether she had witnessed the incident or not. She answered all the questions accurately and stated specifically that only one gunshot was fired. She also specifically stated that when the gunshot was fired the deceased was standing near the window of the room. In fact, PW-10 gave a graphic description of that incident. When questioned as to whether her husband also witnessed the incident from the same spot from where she witnessed the incident, PW-10 stated that she was alone at that spot whereas her husband, probably, was at the Baithak but she was not certain about that. Later, however, she was told by her husband that he had also witnessed the incident. PW-10 clarified that the accused were looking for her husband and sons. She stated that only Ram Gati had fired the shot at the deceased whereas the rest were only standing by his side. She stated that the accused had not opened the box or the almirah though they had hit the box and the almirah with their Danda. She stated that she did not run away. Rather, she remained standing there as she was completely shocked. She stated that the accused must have remained in the room for five minutes. In response to a question as to whether she went near the body of her daughter, she said no. She clarified that when others arrived at the spot, her husband also arrived. The police, however, arrived much later. She stated that the accused must have remained in the room for five minutes. In response to a question as to whether she went near the body of her daughter, she said no. She clarified that when others arrived at the spot, her husband also arrived. The police, however, arrived much later. When she was asked whether she had touched the body of her daughter, she stated that she touched her body when the body was taken outside the room. She stated that blood had spilled on the floor near the window of that room where the deceased was shot. She denied the suggestions that she did not witness the incident; and that she is giving false statement on account of past enmity. 21. PW-11 – Subhash. As the statement of this witness has been recorded in respect of recovery of the country made pistol, we do not propose to notice his testimony in detail as the appellant has already been acquitted of the charge under Section 25/27 Arms Act. STATEMENT OF THE APPELLANT U/S 313 CrPC 22. After recording the prosecution evidence, the incriminating circumstances appearing in the prosecution evidence were put to the accused-appellant. The accused-appellant denied the incriminating circumstances and claimed that he has been falsely implicated on account of past enmity arising out of land dispute. DEFENCE EVIDENCE 23. The accused-appellant examined three defence witnesses. The testimony of all the three defence witnesses is being noticed, in brief, here-in-below : 24. DW-1 – Ram Gati – the accused-appellant. The accused-appellant examined himself as a defence witness. He stated that the alleged recovery of country made pistol from him is absolutely false. In his cross-examination, DW-1 admitted that for the last 20 years, since prior to the incident, there had been animosity between him and the informant and that 2-4 months before the incident he was released on bail. He also admitted that 3-4 days before the incident he was released on bail in another case. He denied killing Nirmla. He denied that other accused were conspirators with him. He denied giving any disclosure statement in connection with the recovery of country made pistol. 25. DW-2 – Ratnesh Kumar Srivastava. He gave his testimony to discredit recovery of country made pistol from accused Ram Gati. He denied killing Nirmla. He denied that other accused were conspirators with him. He denied giving any disclosure statement in connection with the recovery of country made pistol. 25. DW-2 – Ratnesh Kumar Srivastava. He gave his testimony to discredit recovery of country made pistol from accused Ram Gati. Since Ram Gati has already been acquitted of the charge of offence punishable under Section 25/27 Arms Act, we do not propose to notice his testimony in detail. 26. DW-3 -CP Vijay Pratap Singh. This witness had produced the original GD entry of police station Kotwali Khalilabad, district Sant Kabir Nagar of 24.01.2007 and 25.01.2007. He stated that on 24.01.2007, vide report no.52, at 20.35 hrs, Case Crime No.178 of 2007 was registered of which special report was sent vide report no.2 dated 25.01.2007 at 0.10 hrs. He stated that after 7.15 hrs on 24.01.2007, except the present case, no other case or NCR was recorded at the concerned police station. During cross-examination, he stated that Special report is not kept for a period exceeding one year as the same is destroyed. TRIAL COURT FINDING 27. After evaluating the entire evidence led by the prosecution and considering the defence evidence, the trial court found that on the date of the incident the accused were on the lookout for the informant and his sons. Gunshot injury to the deceased was ascribed to the present appellant whereas the other accused caused no injury to any one and that the allegation of conspiracy was not proved therefore, the other accused were entitled to the benefit of doubt. Similarly, by expressing doubt in respect of recovery of country made pistol, the court extended the benefit of doubt to the appellant in respect of the charge relating to offence punishable under Section 25 Arms Act. However, the trial court found that the prosecution was successful in proving beyond doubt that the appellant entered the house of the deceased with country made pistol and with an intention to kill the deceased fired a shot at the deceased from a close range, resulting in her instantaneous death. Accordingly, the trial court convicted and sentenced the appellant under Section 452 and 302 I.P.C. 28. We have heard Sri V.K. Shahu for the appellant; Sri J.K. Upadhyaya, learned AGA, for the State; Sri Tripathi B.G. Bhai for the informant; and have perused the record. Accordingly, the trial court convicted and sentenced the appellant under Section 452 and 302 I.P.C. 28. We have heard Sri V.K. Shahu for the appellant; Sri J.K. Upadhyaya, learned AGA, for the State; Sri Tripathi B.G. Bhai for the informant; and have perused the record. SUBMISSIONS ON BEHALF OF THE APPELLANT 29. Learned counsel for the appellant submitted that from the testimony of PW-2 it appears that the police had arrived at the spot at 8.30 pm and had taken the body of the deceased from the room to the Baithak. Similarly, it has come in the testimony of PW-3 that information about the incident was given to the police on phone. Under the circumstances, the statement of PW-1 that he had taken out the body to place it at the Baithak and, thereafter, he went to the police station to lodge the report and thereafter, the police arrived at the spot, appears untrustworthy and this leaves a doubt as to whether the report was spontaneous and promptly lodged or was lodged after deliberation on the basis of past enmity. Likewise, from the testimony of PW-10, the presence of PW-1 at the spot appears doubtful. Otherwise also, PW-1’s statement that he witnessed the incident from Baithak does not appear probable because if the site plan is taken into consideration, the accused had arrived at the house of the informant by taking a route which was very close to the Baithak therefore, if their intention was to kill the informant (PW-1) and his sons, had the informant been present at the Baithak, they would have killed the informant rather than the deceased. Thus, it appears to be a case where the informant was not present at the spot. Rather, when he returned home from Gorakhpur, the FIR was lodged after deliberation and the accused were named on the basis of past enmity. 30. Learned counsel for the appellant also submitted that the autopsy surgeon could not confirm whether shot was from a rifle or a gun. The injury noticed appeared from a rifle because no pellet was found whereas the prosecution witness set up a case that the shot was fired from a country made pistol. Therefore, it appears to be a case where dacoits committed dacoity. In that dacoity the deceased was shot. The injury noticed appeared from a rifle because no pellet was found whereas the prosecution witness set up a case that the shot was fired from a country made pistol. Therefore, it appears to be a case where dacoits committed dacoity. In that dacoity the deceased was shot. Otherwise, why would the appellant kill the deceased when they had arrived, according to the prosecution, to kill her father and brothers. He submitted that the entire prosecution story appears doubtful and the trial court failed to take into consideration that there was no motive to kill the deceased. 31. Learned counsel for the appellant also submitted that, admittedly, it was a winter night and the night was dark. No source of light has been proved, inasmuch as, neither any lantern nor torch, in the light of which the incident is stated to have been witnessed, were made material exhibits. He submitted that if PW-10 and PW-2 had been present at the spot and were witnesses of the incident, they would not have been spared therefore, for that reason also, the entire prosecution story appears improbable. It has been submitted that since the prosecution witnesses including the informant are highly inimical and animosity between the parties had been there since long, all these witnesses were interested and related witnesses therefore, a strict scrutiny of their testimony was required, which the court below failed to undertake. He, accordingly, prayed that the judgment and order of the trial court be set aside and the appellant be acquitted of the charge for which he has been tried. SUBMISSIONS ON BEHALF OF THE STATE 32. Sri J.K. Upadhyaya, learned AGA, submitted that this is a case where the deceased was shot inside a room of her house where the presence of PW-2 and PW-10 was natural. There is no suggestion to the prosecution witnesses that the place of incident was not inside the room of the house of the informant. There is no suggestion to PW-2 and PW-10 that at the time of incident they were present at another place, other than the place of occurrence. There is no suggestion to the prosecution witnesses that the place of incident was not inside the room of the house of the informant. There is no suggestion to PW-2 and PW-10 that at the time of incident they were present at another place, other than the place of occurrence. He submitted that the I.O. while preparing the site plan had lifted plain/blood stained earth from inside the room which was just below the window towards north of the room and just few paces away from that window there was tap/tube-well from where PW-2 witnessed the accused-appellant firing the shot at the deceased. He stated that both PW-2 and PW-10 are consistent throughout inasmuch as they could not be contradicted by any previous statement made by them and as their presence is natural and their ocular account finds support from the medical evidence, there is no reason to doubt their ocular account. Learned A.G.A. also submitted that no suggestion has been put to the eye witnesses with regard to the nature of the firearm used. Even country made pistol may cause a firearm injury of the nature found and the bullet may make an exit wound, therefore, on a stray statement of the autopsy surgeon that he cannot tell whether it was a rifle shot or gun shot, the ocular account, which is consistent, cannot be doubted. 33. Learned AGA further submitted that even if the presence of PW-1 at the Baithak is doubtful, as he may have escaped to save his life, the fact remains that PW-1 had proved that he had returned from his duties and there is no suggestion to him that he did not lodge the FIR at the time it is purported to have been lodged. Thus, since the FIR is extremely prompt and specific role is attributed to the appellant of firing gunshot at the deceased, there is no good reason to disbelieve the prosecution case as against the accused-appellant in respect of the charge for which he has been convicted. Learned AGA also submitted that the statement of PW-1 that two shots were fired instead of one, as claimed by PW-2 and PW-10, is not a ground to discredit the testimony of PW-2 and PW-10. He, accordingly, prayed that the appeal be dismissed and the judgment and order of the trial court be confirmed. 34. Learned AGA also submitted that the statement of PW-1 that two shots were fired instead of one, as claimed by PW-2 and PW-10, is not a ground to discredit the testimony of PW-2 and PW-10. He, accordingly, prayed that the appeal be dismissed and the judgment and order of the trial court be confirmed. 34. The learned counsel for the informant adopted the submissions made by the learned A.G.A. ANALYSIS 35. Having noticed the rival submissions and the entire evidence on record, before proceeding further, it would be useful to first address the argument of the learned counsel for the appellant that all the eye-witnesses being related to each other and interested in the conviction of the appellant, due to past enmity, their testimony should be carefully scrutinised and the slightest discrepancy in their statement must enure to the benefit of the accused. 36. In this regard we may observe that “it is well settled that interested witness testimony is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witness should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon. Although in the matter of appreciation of evidence, no hard and fast rule can be laid down, yet, in most cases, in evaluating the evidence of an interested or even a partisan witness, it is useful as a first step to focus attention on the question, whether the presence of the witness at the scene of crime at the material time was probable. If so, whether the substratum of the story narrated by the witness, being consistent with the other evidence on record, the natural course of human events, the surrounding circumstances and inherent probabilities of the case, is such which will carry conviction with a prudent person. If so, whether the substratum of the story narrated by the witness, being consistent with the other evidence on record, the natural course of human events, the surrounding circumstances and inherent probabilities of the case, is such which will carry conviction with a prudent person. If the answer to these questions be in the affirmative, and the evidence of the witness appears to the court to be almost flawless, and free from suspicion, it may accept it, without seeking corroboration from any other source” (vide para 13 of the decision of the Supreme Court in Hari Obula Reddy and Others Vs. State of Andhra Pradesh (1981) 3 SCC 675 ). 37. Bearing the above legal principle in mind we shall evaluate the testimony of the eye-witnesses PW-1, PW-2 and PW-10. Though PW-2 and PW-10 may fall in the category of interested witnesses but their presence at the spot, which is a room of their house, is natural. No doubt, an effort has been made on behalf of learned counsel for the appellant to demonstrate that the body was shifted from the spot and therefore whether the deceased was shot outside or inside could not be confirmed. But this effort fails because from the prosecution evidence it is clearly established that the I.O. had lifted plain/blood stained earth from inside the room of the house. Notably, blood was found near the northern window of that room. From the site plan (Ex. ka-15), which is prepared on the basis of spot inspection by the I.O., and the testimony of the prosecution witnesses, it is clear that window of that room in which the deceased was killed opens towards north and is close to the tap/tube-well where PW-2 was filling water at the time of occurrence and from where she had witnessed the incident. Importantly, there is no specific suggestion to the prosecution witnesses that the deceased was killed elsewhere and not inside the room of that house. In view of the above, the defence argument that it is uncertain whether the deceased was killed inside the room of that house or outside, is worthy of rejection. Importantly, there is no specific suggestion to the prosecution witnesses that the deceased was killed elsewhere and not inside the room of that house. In view of the above, the defence argument that it is uncertain whether the deceased was killed inside the room of that house or outside, is worthy of rejection. The argument of the defence that since the body was removed from the spot therefore, the spot becomes uncertain is also worthy of rejection because the prosecution witnesses have stated that the body was taken out of the room to check whether the deceased was surviving and could be taken to the hospital. This explanation is natural because even if a person is dead, close relatives make an attempt to revive the dead. Notably, deceased was a young girl. In such circumstances, it is quite natural for her father to take out the body to explore possibility of taking her to the hospital. Moreover, once blood was found inside the room, there exists no doubt with regard to the place of occurrence. We are therefore of the view that the prosecution has been successful in establishing that the deceased was killed inside the room of the house of the informant. 38. Once, the place of occurrence is proved, the presence of PW-2 and PW-10, who are younger sister and mother, respectively, of the deceased, becomes natural at the spot because they were in their own house where the incident occurred. No suggestion has been given to either PW-2 or PW-10 that they were at some other place at the time of the incident. In such circumstances, the defence has failed in its attempt to doubt the presence of PW-2 and PW-10 at the spot at the time of occurrence. Therefore, even though we may be of the view that the other prosecution witnesses arrived at the spot after hearing the noise of gunshot and might not have been in a position to witness the actual firing of the gunshot at the deceased but these witnesses have confirmed the place where the deceased was shot, the presence of PW-2 and PW-10 and the date and time when the deceased was shot. Accordingly, their testimony corroborates the testimony of PW-2 and PW-10. 39. In so far as the time of occurrence is concerned, according to the prosecution case, the occurrence is of 7.15 pm on 24.01.2007. Accordingly, their testimony corroborates the testimony of PW-2 and PW-10. 39. In so far as the time of occurrence is concerned, according to the prosecution case, the occurrence is of 7.15 pm on 24.01.2007. The autopsy report and the testimony of the autopsy surgeon accepts the possibility of death of the deceased at or about 7.15 pm on 24.01.2007. 40. The submission of learned counsel for the appellant that from the prosecution evidence it appears that the police had arrived at the spot even before the lodging of FIR and, therefore, it appears, the FIR was lodged later, after deliberation, does not appear sustainable, firstly, for the reason that mere giving of an information to the police on telephone is not a ground to reject the registration of the FIR on the date and at the time it is purported to be registered, particularly, when there is no suggestion to the informant or to any of the police witnesses that the FIR was ante-timed. Secondly, there is no cogent evidence, except the statement of PW-3, that the police was informed on telephone. The police witnesses have not accepted any such suggestion that they arrived at the spot even before registration of the FIR. Rather, evidence is specific that the informant had brought a written report. PW-2 specifically denied giving information to the police on telephone. No doubt, PW-2, at one stage, during cross-examination, stated that the police arrived at the spot at 8.30 pm, which time appears before registration of the FIR, but this stray statement during cross-examination is not sufficient to doubt the time at which the FIR was registered because there could always be confusion in respect of the exact time. In this regard it would be useful to notice observations of the Supreme Court made in paragraphs 27 (X) (XI) of its judgment in the case of Shahaja @ Shahajan Ismail Mohd. Shaikh Vs. State of Maharashtra – Criminal Appeal No.739 of 2017, decided on July 14, 2022 – 2022 Live Law (SC) 596 wherein it was observed : “(X) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person. (XI) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.” Bearing in mind the observations of the apex court noticed above, the statement of PW-2 that the police arrived at the spot at 8.30 pm and body was taken out by the police is to be understood in the contextual background of the case. PW-2 was a young girl whose sister was shot dead in front of her eyes. In such circumstances, she would have been in a state of shock. Expecting her to carefully notice and memorise the time and sequence of events would be unrealistic. Such minor discrepancy, in our view, does not shatter the foundation of the prosecution case so as to render the registration of the FIR on the date and time as it purports to be doubtful, particularly, when its registration on the date and time concerned is duly established by PW-1 as well as the documentary evidence. 41. More over, the defence itself examined DW-3 who proved registration of the FIR at 20.35 hrs on 24.01.2007. DW-3 also proved that a special report of its institution was sent promptly at 0.10 hrs on 25.01.2007 as recorded in the General Diary. In these circumstances, when it has been proved that the FIR was lodged promptly at 20.35 hrs in respect of an incident which occurred at 7.15 hrs, there is very little scope for the defence to suggest that the informant had contrived the story after deliberation. In so far as the testimony of PW-2 that the police arrived at around 8.30 pm is concerned, there may be some confusion in her mind as to the time when the police had arrived. In so far as the testimony of PW-2 that the police arrived at around 8.30 pm is concerned, there may be some confusion in her mind as to the time when the police had arrived. But since the police record clearly disclose the time when the police left the police station for the purposes of investigation/ inquest and PW-1 (informant) also states that the police arrived at the spot after registration of the FIR, we do not find any merit in the submission of learned counsel for the appellant that the FIR was lodged after deliberation as the police had arrived at the spot before registration of the FIR. 42. In respect of the reliability of the testimony of PW-2 and PW-10, the defence argument is to the effect that there was no clear motive to kill the deceased therefore, it appears to be a case where some dacoits entered the house and in the process of dacoity killed the deceased. Though an effort was made to demonstrate through suggestions to the witnesses that the dacoits/accused had covered their face while entering the house and had looted articles but all such suggestions were refuted by the witnesses who clearly deposed that the accused had not covered their faces and no dacoity was committed rather, it was the accused appellant who fired the shot at the deceased from a close range. Further, nothing could come out from cross examination of the witnesses with regard to existence of signs of loot/dacoity. In our view, the prosecution testimony is straight forward, which is to the effect that the accused had come to finish off the informant (father of the deceased) and his sons. They did enquire about the informant from PW-2. PW-2 sensing danger did not divulge any information regarding the informant and her brothers. Upon which, they entered the house perhaps to explore whether the informant was hiding there. When the deceased resisted their entry in her room, they got annoyed and as a result whereof, the appellant fired a shot at the deceased from a close range. In such circumstances, absence of motive to kill the deceased is not fatal to the prosecution case because the intention to kill the deceased was formed at the spur of the moment as she was resisting the accused from entering her room. 43. In such circumstances, absence of motive to kill the deceased is not fatal to the prosecution case because the intention to kill the deceased was formed at the spur of the moment as she was resisting the accused from entering her room. 43. In so far as PW-2 and PW-10 witnessing the incident is concerned, there is no serious challenge to their presence at the spot because they were residents of that house and their presence was natural. The source of light i.e. presence of lanterns has been disclosed by the eyewitnesses. Presence of lanterns was confirmed during investigation and custody memo in respect thereof was made. During cross-examination, no serious challenge was laid to their deposition in respect of:-(a) the presence of lit lanterns in the house; (b) that there was a tap/tube-well right in front of the window where the deceased was standing when she was shot at and near which PW-2 was filling water; (c) that there was a door in the room where the deceased was killed, which opened in the verandah; (d) that through that door the room, where the deceased was standing, was clearly visible; (e) that there were lanterns lit in the verandah, room as well as outside, making the spot clearly visible; and (f) that shot was fired from a close range. The contention that lanterns were not produced during trial, therefore their existence becomes doubtful is not acceptable because the I.O. had deposed about being shown the lanterns. He also proved preparation of custody memo (Exb. Ka-26) in respect thereof. It be noted that lanterns are daily use articles hence the I.O. may not have seized the same. Instead, after examining it, gave its custody to its owner with condition that it shall be produced when required. It is quite possible that the witnesses, who were having custody of those daily use articles, were not instructed to produce them. In such circumstances, when PW-2 and PW-10 both deposed about existence of lantern light and there was no serious challenge to their deposition mere failure on the part of the prosecution to secure their production during trial is not sufficient to discard the oral testimony regarding the source of light. The ocular account of PW-2 and PW-10 gives a pictorial account of the incident and there appears no shadow of doubt that they had witnessed the incident. The ocular account of PW-2 and PW-10 gives a pictorial account of the incident and there appears no shadow of doubt that they had witnessed the incident. More so, when their ocular account is corroborated by medical evidence and by collection of plain/blood stained earth from inside the room, where the deceased was shot at, the spot was confirmed. The site plan discloses that the witnesses were in close proximity and could have witnessed the incident. No doubt, the testimony of PW-1 may not inspire our confidence with regard to his statement that two shots were fired and that he witnessed the shot being fired at the deceased through the window of that room, because PW-2 and PW-10 speak of solitary shot and the probability of him having escaped from the spot seeing the assailants is quite high. But that does not fail the prosecution case which finds support from the unshaken testimony of PW-2 and PW-10. 44. In view of the discussion above, we are in agreement with the view of the trial court that the prosecution has been successful in proving the guilt of the accused-appellant beyond the pale of doubt in respect of the offences punishable under Sections 452 and 302 I.P.C. There is, therefore, no merit in this appeal. The same is dismissed. The judgment and order of the trial court is affirmed. The accused-appellant is reported to be in jail. He shall serve out the sentence awarded by the trial court. 45. Let a copy of this order be sent to the trial court for information and compliance.