PARIPOORNAN, J.:The appellants in this appeal, Prem Kumar Singh (a),Prem Singh S/o Mundrika Singh and Ramesh Singh S/o ChandrikaSingh are Accused Nos. 1 and 2 in Sessions Trial No. 219 of1983, Additional Sessions Judge, Palamau.The abovetwo accused, along with one Mundrika Singh, Accused No. 6,father of Accused No. 1 Prem Singh, and eight others werecharge-sheeted to stand Sessions Trial for the murder of oneTarkeshwar Prasad Singh on 13.1.1983 at 6.30 p.m. at a placeknown as Ketat.Accused Nos. 1 and 2 were charged for of-Thedefence plea was that the death of Tarkeshwar Prasad Singhin the bus, belonging to Santosh Transport Company, mighthave been caused at the hands of some unknown dacoits andthe accused persons have been falsely implicated by theinformant because of long drawn enmity between the parties.The plea of alibi was also put forward by Accused No. 6Mundrika Singh, Accused No. 1 Prem Singh, Accused No. 10Raja Dixit and Accused No. 7 Muni Dixit.On an analysis ofthe entire evidence in the case, the Additional SessionsJudge, Palamau, by judgment dated 9.6.1987, held that oninstigation given by Accused No. 6 Mundrika Singh to killTarkeshwar Prasad Singh, the deceased, Accused No. 1 PremSingh and Accused No. 2 Ramesh Singh intentionally causedthe death of Tarkeshwar Prasad Singh by firing at him withtheir rifles in consequence of which Tarkeshwar Prasad Singhdied instantaneously on the spot.TheSessions Judge came to the conclusion that there isabsolutely no evidence of any other attack by the remainingaccused persons (other than Accused Nos. 1, 2 and 6).Theoffence under section 27 of the Arms Act was also not provedagainst such persons.In the result Accused No. 6 MundrikaSingh was found guilty under section 302 read with section34 IPC and convicted thereunder.Accused Nos. 1 and 2 werefound guilty for offence under section 302 IPC for causingthe murder of Tarkeshwar Prasad Singh and they wereconvicted thereunder.They were also found guilty foroffence under section 307 IPC for attempting to commit themurder of PW 5 and 6 and were accordingly convicted.Accused No. 6 Mundrika Singh and oneChandrika Singh are brothers.Accused No. 1 Prem Singh isthe son of Mundrika Singh.Accused No. 2 Ramesh Singh isthe son of Chandrika Singh.It is alleged that one Rajan,brother of Accused No. 1 Prem Singh, and Bishwanath, brotherof Accused No. 2 Ramesh Singh, were murdered by TarkeshwarPrasad Singh.The case was stillpending when the incident relevant to the instant casehappened on 13.1.1983 at about 6.30 p.m. at Ketat.It isfairly clear from the evidence in the case, that enmityexists between the members of the appellants' family andthose of the deceased family.The prosecution alleged thaton 13.1.1983 after attending the hearing of the murder caseof Rajan and Bishwanath at Daltonganj, Tarkeshwar PrasadSingh accompanied by Bashishth Narain Singh, PW 8, as alsoSheo Pratap Singh and Ramadhar Pathak, boarded the busbearing Registration No. BRO 3555 of Santosh TransportCompany, for returning to Rehla at 5.30 p.m., and the busstopped for a while at the stop of Ketat, when car bearingRegistration No. WMB 5989 came from behind and stopped infront of the bus.The time was about 6.30 p.m. Then AccusedNos. 2 and 6 and their colleagues Satyender Singh, MunniDixit got down from the car.Accused No. 6 was empty handedbut the remaining persons were armed with rifles.In themeanwhile Jeep bearing Registration No. BRO 2770, which alsoarrived from the side of Daltonganj, stopped in front of thebus.From that Jeep, Accused No. 1, armed with a rifle, andhis colleagues Rajeshwar Singh, Bishwanath Singh, ParsuramDixit, Basistha Dixit, Fakira Dixit and Chandardhan Singhand two other unknown persons, all armed with guns alike,alighted.The accused and other co-culprits startedproclaiming that as Tarkeshwar Prasad Singh was inside thebus, he should be cut into pieces.On hearing this, thepassengers of the bus were struck with terror and startedfleeing away.Passengers were in the process of gettingdown from front and rear entrances.At that time AccusedNos.1 and 2 came inside the bus from the front entrance.PW 8 Dudhnath Singh, in order to hide his identity, hadwrapped his face with the chadar and rushed towards the backdoor of the bus, when he saw Accused Nos. 1 and 2 firingindiscriminately at Tarkeshwar126Prasad Singh.In that firing Ram Raj Pandey - PW 5, aforest guard, and Ghanshyam Languri - PW 6, a police offi-cial, also received injuries.PW 8 Dudhnath Singh had bythat time managed to get down from the bus like many otherpassengers and he concealed himself nearby in thick bushes.On knowing that Tarkeshwar Prasad Singh had died, theaccused and others raised victory slogans and fled towardsDaltonganj in their car and jeep.On hearing the news, SubInspector Sachchidanand Deo, PW 14, entered the informationas Entry No. 195 (Ex. 4) at 7.00 p.m. in Rehla PoliceStation and rushed to the place of occurrence, arrivingthere at 7.15 p.m. On seeing the police PW 8 Dudhnath Singhcame out of the hiding and made a statement (Ex. 5) whichwas sent to the Police Station, Bishrampur and on this basisthe case was registered vide FIR (Ex. 7) at 9.00 p.m. PW 5and 6 were transported to Daltonganj hospital.Though thesearch was made for the culprits they were not found.TheSub Inspector retained to the spot at about 1.30 a.m. andprepared the inquest report with respect to the dead body ofTarkeshwar Prasad Singh.PW 1 Bashishth Narain Singhand Bipin Bihari Singh attested the documents prepared atthe spot.The dead body of Tarkeshwar Prasad Singh wassubjected to postmortem examination by Dr. R.K.P. Pandey (PW4).No doubt he had developedweakness in the eyes two months prior to the date ofexamination, but he had clear vision and his eyes werealright at the time of the occurrence.He admitted that hehad given statement before the police that Ramesh Singh andPrem Singh started firing at Tarkeshwar Prasad Singh afterentering into the bus.He heard the noise of firing when hewas fleeing from the bus and also heard the shout ofTarkeshwar Prasad Singh to save him.PW 2 Ran Vijay PratapDeo, deposed that he boarded Santosh Bus in the evening tocome back to Rehla along with PW 1, PW 8 and TarkeshwarPrasad Singh and when the bus halted near Ketat village todrop some passengers, a fiat car came from Daltonganjdirection and stopped before the bus.Accused Ramesh Singhand others with rifles in the hands, and Mundrika Singh gotdown.Mundrika Singh's hands were empty.A jeep also camefrom behind and Prem Singh and others got down from the jeepwith the rifles.The jeep and the car surrounded the busand thereafter, he heard the noise of firing from the busgate.Prem Singh and Ramesh Singh were standing near thefront gate of the bus with rifle.The moment he came out ofthe bus, he heard the noise of firing andsimultaneously theshout of Tarkeshwar Prasad Singh.fence under section 302 read with section 34 IPC for causingthe murder of Tarkeshwar Prasad Singh.They were alsocharged for offence under section 307/34 IPC for attemptingto cause murder of Ghanshyam Languri and Rajnath Tewari, twoco-passengers, who boarded the bus along with TarkeshwarPrasad Singh.The remaining nine accused persons werecharged for offences under section 302/ 149 IPC.6 Mundrika Singh was charged for offence, under section147 IPC also, whereas the ten other accused persons werefurther charged for offence under section 148 IPC read withsection 27 of the Arms Act. All the accused persons pleadednot guilty for each of the charges framed against them.Exceptaccused Nos. 1 and 2 and 6, the other accused were notfound guilty for any of the charges framed against them andthey were acquitted and discharged from the liability oftheir respective bail bonds.Accused Nos. 1 and 2 weresentenced to imprisonment for life under section 302 IPC.Accused No. 6 was also sentenced to imprisonment for lifeunder section 302 read with section 34 IPC.Accused Nos. 1and 2 were further sentenced to undergo rigorousimprisonment for seven years for their conviction under sec-tion 307 IPC.It was further held that both the sentencespassed against the Accused Nos. 1 and 2 shall runconcurrently.Accused Nos. 1, 2 and 6 filed Criminal AppealNo. 90 of 1987 before the High Court of Patna, Ranchi Bench,Ranchi.A Division Bench of the High Court, after a verydetailed discussion of the entire evidence, by Judgmentdated 8.9.1989, acquitted accused No. 6 Mundrika Singh andcon-firmed the conviction of Accused Nos. 1 and 2 under section302 of the Indian Penal Code.The conviction of AccusedNos.1 and 2 under section 307 IPC was set aside.The HighCourt observed that the case of Accused No. 6 Mundrika Singhis not free from doubt and the case against him appears tobe similar to the other co-accused, who were acquitted bythe Sessions Judges.In this view, the conviction ofAccused No. 6 Mundrika Singh, appellant No. 3 before theHigh Court, was set aside and be was acquitted of thecharge.But as regards Accused Nos. 1 and 2 the High Courtcame to the conclusion that though their conviction andsentence under section 307 of the Indian Penal Code areliable to be set aside, their conviction and sentence undersection 302 IPC were justified.We heard Sri Rajender Singh, learned senior counsel forthe appellants and Sri H.L. Agrawal, learned senior counselfor the respondent.Statements of driver, conductor and other witnesseswere recorded- The accused surrendered in court and werearrested later and chargesheeted.One of the accusedChandardhan Singh was subsequently murdered on 23.6.1983.Accused Nos. 1, 2 and 6 were sentenced and other accusedwere acquitted by Sessions Judge.The postmortem examination of Tarkeshwar Prasad Singhwas conducted by PW 4 on 14.1.1983 at 10.50 a.m. atSubdivisional Hospital, Daltonganj.The record relatingthereto discloses the following injuries : -Six oval lacerated wounds with inverted margins of the sizes varying from 1/4" to 1/2"in diameter on the middle and left side of the front of the chest;One oval lacerated wound with inverted margins of the size 3/4" in diameter on the upper part of the left side of abdomen with two metal pieces embodied in the wound;Three circular lacerated wounds with inverted margins of the sizes varying from 1/4" to 1/2" in diameter on the right shoulder with blackening of the skin around the wound.Fractures of the body of the external bones of third, fourth, fifth and sixth ribs and cartilages on the right side, as well as the fourth, fifth and sixth ribs and on the left side were noticed.The third and the fourth thorazix vertebra, the right of devicles, right scapula, and the upper part of the numerous on the right side were also found fractured.Injury Nos. 1 and 3 referred to above were wounds of entry, while injury No. 2 was the wound of exit.All the above injuries were caused by fire arms.Death of Tarkeshwar Singh had been caused by shock and hemorrhage as a result of above noted injuries.The time elapsed since death was with 12 to 18 hours of the postmortem examination.All the injuries individually were sufficient to cause death in the ordinary course of nature.Ext. 3 is the postmortem examination.The medical examination of PW 5 Ram Raj Pandey on 13.1.1983conducted by Dr. K. Singh disclosed the following:Lacerated wound on left side of neck 1" x 1/2" surrounded by charring of skin.The X-ray plate dated 14.1.1983 showed a big oblique subset with small radio opaque particle.It was a skin (deep) injury caused by afire arm, may be a rifle.Age of the injury was within 24 hours.Ex. 2 is medico legal certificate.Dr. K. Singh, who examined PW 6 found the following injury:-One lacerated wound on left side of the shoulder 3 " x 1".The depth could not be probed.This injury was surrounded by charring skin.The X-ray plate no. 41 dated 14.1.1983 showed three shots on the upper left side of back.It was simple in nature caused by afire arm such as a rifle or gun.Age of the injury was within 12 hours.Ext.2/1 is the medico legal certificate.As stated earlier, the plea of the appellants was thatthe prosecution allegations are untrue and that they wereinnocent.Accused Nos. 1 and 6 and two other accusedadvanced the plea of alibi and examined DW 1 to 3 in supportof the same.The said evidence did not find favour with thetrial court.The appellants also examined DW 4 Kuldip Royand DW 5 Priya Brat Singh to show that Tarkeshwar PrasadSingh was a terror.Certain crucial aspects appearing in the case deserveto be highlighted.Tarkeshwar Prasad Singh was shot deadinside the bus bearing Registration No. BRO 3555 at the busstop Ketat at about 6.30 p.m. on 13.1.1983.The deceased metwith instantaneous death.PW 1, PW 2, PW 5 an PW 8 are theeye witnesses.PW 8 lodge FIR on the same day at 7.30 p.m.PW 5, forest guard, was a co-passenger and independentwitness.Thepostmortem report and the evidence of PW 4 proves that theinjury resulted due to shots of fire arms.There was,admittedly enmity between the family of the informants andthat of the accused.Deceased Tarkeshwar Prasad singh,along with PW 1, 2, 8 and PW 5 & 6, and few others wasreturning in the bus belonging to Santosh Transport Company,on 13.1,1983, after attending the murder case of Rajan andBishwanath.The prosecution states that Prem Singh andRamesh Singh (Accused Nos 1 and 2), who came from behind inthe jeep and the car along with few others, fired fatalshots at Tarkeshwar Prasad Singh with their rifles infurtherance of common intention of the other accused per-sons, which caused the instantaneous death of TarkeshwarPrasad Singh.The courts below have concurrently held thatthe motive suggested by the prosecution against the accusedpersons is established.We shall discuss in brief theevidence of the four cye-witnesses PW 1,2,5 and 8, to theextent it is necessary to show how far the prosecution hasestablished its case.The main arguments advanced before us onbehalf of theappellants-accused are (a) PW 1 to 8 arc not really eyewitnesses and they were not able to depose, who fired thefinal shot and when; (b) the shot received by TarkeshwarPrasad Singh is of the gun and not of the rifle as spoken tothe prosecution witness; (c) there is inconsistency in theprosecution evidence, and what is more the statement in FIRis not fully substantiated.We were taken through the evidence of PW 1, and 4(medical witness), PW 5 independent witness (Forest Guard)and PW 8 - first informant and PW 12, We have also gonethrough the FIR appearing at pages 51-54 (paper book No. IIIAnnexure p-10) and also the statement given by the accusedin their examination under Section 313 of Criminal ProcedureCode.He knew Mundrika Singh, Ramesh Singh andPrem Singh for a long time.He also speaks about theenmity between the accused and Tarkeshwar Prasad Singh.Ac-cording to him, there was indiscriminate firing in the bus.PW 5, a forest officer and independent witness, statedbefore the Court that he boarded Santosh Bus at Daltonganjbus stand on 13.1.1983 and when the bus stopped in front ofKetat village, 5-6 persons surrounded the bus and startedfiring indiscriminately.He was injured due to firingTarkeshwar Prasad Singh died inside the bus, hit by the bul-let.Persons firing were outside the bus next to the busdoor and were firing inside.The bullet hit the witnessafter breaking the glass of the bus window.He knewTarkeshwar Prasad Singh before since he was a forestcontractor.PW -8 Dudhnath Singh, who gave the FIRavailable at pages 51-54 of Volume III of the paper book, isthe brother-in-law of the deceased Tarkeshwar Prasad Singh.In the FIR he has stated that along with Tarkeshwar PrasadSingh, PW 1, 2 and others, they boarded the bus atDaltonganj' and when the bus reached Ketat village at about6.45 in the evening to drop a passenger, a car, belonging toChandrika Singh, bearing No. WHB 5989, came overtaking thebus and stopped in front of It.The passengers, sitting init, got down and were armed with guns and rifles.Herecognised those persons Among them Ramesh Singh, AccusedNo. 2, and others had rifles.immediately after this thejeep, bearing No. BRO 770, came and Prem Singh, Accused 1,and others got down with rifles in hand.All the persons inthe car and the jeep surrounded the standing bus and saidthat 'sala' Tarkeshwar Prasad Singh is in he should be takenout and cut into pieces.The persons traveling inside thestarted begging for life and started fleeing.Prem Singhand Ramesh Singh were identifying the, passengers and PW 8,by hiding his face, got down from the rear gate.TarkeshwarPrasad Singh was in the back.As soon as the witnessreached the rear gate, he saw Prem Singh and Ramesh Singhentering the bus from the front gate with their rifles andstarted indiscriminate firing on Tarkeshwar Prasad Singh.The130witness ran outside to save his life, but while running heheard Tarkeshwar Singh's shouts from inside the bus.He hidhimself in nearby bushes.The reason for this murder isthat Prem Singh, Ramesh Singh and others had enmity towardsTarkeshwar Prasad Singh and wanted to take revenge due tothe pending murder case of Rajan and Bishwanath inDaltonganj.As PW 8, the witness, substantiallycorroborated what he stated in the FIR.He deposed that hewas travelling along with Tarkeshwar Prasad Singh, PW 1 andothers in the bus belonging to Santosh Transport Company.At about 6.45 p.m. at Ketat village the bus stopped to dropa passenger when a Fiat car bearing No. WHB 5989 stopped infront of the bus and Ramesh Singh and others came out of thesame with rifles and thereafter a jeep bearing No. BRO 2770came and Prem Singh and others got down out of the jeep withrifles and all of them abusing Tarkeshwar Prasad Singhstated that he should be cut into pieces.Prem Singh andRamesh Singh stood near the front door of the bus and firedshots with rifles.PW 8 was successful in fleeing away bycovering his face with a chadar.He saw that TarkeshwarPrasad Singh got injured by the bullet inside the bus.Tarkeshwar Prasad Singh was behind him when firing had takenplace.He did not see bullet being fired on any otherpassenger other than Tarkeshwar Prasad Singh.who was a forest guard, was injured, hit by abullet.The FIR available at pages 51-54 of volume III ofthe paper book and the deposition of the eye witnesses, PW1, PW 2, PW 5 and PW 8, of when PW 5 is an independentwitness, clearly bring out the fact that Accused Nos. 1 and2 came in a jeep and a car with rifles, with a few otherpersons, that they got into the bus from the front and firedindiscriminately at Tarkeshwar Prasad Singh.PW 5, a forestofficer as an independent witness, who himself sustained in-juries, has also stated that Tarkeshwar Prasad Singh diedinside the bus due to hit by the bullets. 'Mere is nocontradiction with regard to the crucial aspects, namely,that these witnesses travelled with Tarkeshwar Prasad Singhin the same bus, that the bus stopped at Ketat village todrop a passenger, at that time Accused Nos. 1 and 2 came ina jeep and a car with rifles, from behind, along withothers, surrounded the bus and after proclaiming thatTarkeshwar Prasad Singh is inside the bus and he should becut into pieces, they entered the bus and firedindiscriminately, at Tarkeshwar Prasad Singh, which resultedin the death of Tarkeshwar Prasad Singh instantaneously.Six metallic pieces recovered from the dead-bodywere properly sealed and sent to the police.All theinjuries were caused by some fire arms.The postmortem re-port - Annexure p-8, (Volume III of the paper book)-mentionsabout two metallic pieces embodied in the wounds in the up-per left side of the abdomen and also refers to a recoveryof total six metallic pieces.The postmortem report alongwith the evidence of the medical witness PW 4 substantiatesthat the injuries sustained by Tarkeshwar Prasad Singh wereas a result of shots received from the fire arms and thatthey were fatal.The direct evidencein the case, amply corroborated by the motive of theaccused, positively points out the intention of the accusedto murder Tarkeshwar Prasad Singh.Sachchidanand Deo, Inspector of Police, PW 14, whorecorded the FIR, stated that he had seized two bullet onthe front gate foot-steps of the bus and that he did notfind any rifle or gun at the place of occurrence or nearbyand that he recorded the FIR and other statements from thewitnesses etc. It is also important to notice that PW 8 hasgiven the number of the Fiat car and the jeep and PW 12Chandreshwar Upadhyay, who came along with Prem Singh injeep has categorically stated that the number of the jeep isBRO 2770 and Prem Singh regularly used to bring him in thatjeep.It willbe found from page 825 of the Report that the accused in thesaid case produced "a 12 bore gun" Ext. p-16, for which heheld the licence.He denied that he had firedwith the said gun.His case was that Gurnam Singh, whoreached the spot at about the time of incident, had fired atthe deceased Dalip Singh.There were certain puzzlingfeatures of the injuries of Dalip Singh, It is in thatconnection the court observed as follows:-"In a case where death is due to injuries or wounds caused by a lethal weapon, it has always been considered to be the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused."The above observations were made in a case where the weapon.with which the victim sustained injuries was before theCourt and there was doubt whether the injuries could havebeen caused by using that weapon - Extp-16, in the reportedcase.In this case, the rifles used by Accused Nos. 1 and2 were never recovered.

Cited provisions: Section 302 in The Indian Penal Code; Section 34 in The Indian Penal Code; Section 307 in The Indian Penal Code; Section 147 in The Indian Penal Code; Section 149 in The Indian Penal Code; Section 148 in The Indian Penal Code