Ajai Kumar Srivastava-I, J

1. Heard learned counsel for the appellants, learned A.G.A. for the State and perused the entire record.

2. Under challenge in this criminal appeal is the impugned judgment and order dated 26/30.03.2011 passed by the learned Sessions Judge, Sitapur in Sessions Trial No.981 of 2007 titled State vs. Ram Sahay and others arising out of Case Crime No.432 of 2007, Sessions Trial No.982 of 2007 titled State vs. Sunil Kahar, arising out of Case Crime No.443 of 2007 and Sessions Trial No.983 of 2007 titled State vs. Anil Kahar, arising out of Case Crime No.444 of 2007, Police Station Maholi, District Sitapur, whereby the appellant No.1, Ram Sahay has been convicted and sentenced to undergo life imprisonment with a fine of Rs.50,000/- for the offence under Section 302/34 of the Indian Penal Code hereinafter referred to as “I.P.C.” , and in default of payment of fine, he has further been directed to undergo six months' rigorous imprisonment. The appellants No.2 and 3, namely, Sunil Kahar and Anil Kahar have been convicted and sentenced to undergo life imprisonment with a fine of Rs.50,000/- for the offence under Section 302 I.P.C., and in default of payment of fine, they have further been directed to undergo six months’ rigorous imprisonment. The appellants No.2 and 3, namely, Sunil Kahar and Anil Kahar have also been convicted and sentenced to undergo three years’ rigorous imprisonment with a fine of Rs.5,000/- for the offence under Section 25 (1-B) Arms Act, and in default of payment of fine, they have further been directed to undergo three months' rigorous imprisonment. However, all the accused/ appellants were acquitted of charges under Sections 504, 506 I.P.C. and Section 7 Criminal Law Amendment Act. All the sentences were directed to be run concurrently.

3. The case of the prosecution, in nutshell, is that there was a dispute between the informant’s elder brother, Sushil Rastogi and the appellants, namely, Ram Sahay, son of Gangu Lal Kahar, Sunil Kahar and Anil Kahar, sons of Ram Sahay regarding a pond. On 18.06.2007, Sushil Rastogi was sitting in his shop situated in front of the mill gate on G.T. Road, Sitapur. On the same day, at about 12:45 P.M., the aforesaid appellants arrived at Sushil Rastogi’s shop on a motorcycle. One of the accused/ appellant, Ram Sahay exhorted his two sons/appellants, namely, Sunil Kahar and Anil Kahar, to kill Sushil Rastogi. Whereupon, the appellants, Sunil Kahar and Anil Kahar fired at Sushil Rastogi with countrymade firearms. After being shot, the informant’s elder brother, Sushil Rastogi fell down on the ground and he was taken to the hospital. When the informant and other persons raised an alarm and attempted to apprehend the accused/appellants, the aforesaid appellants fled away from the spot, waving the countrymade pistols in their hands. They also extended threat to kill anyone, who dares to speak about this incident.

4. On the basis of aforesaid written report, Ext. Ka-1 submitted by the first informant, Pramod Kumar Rastogi, the first information report, Ext. Ka-13 came to be lodged on 18.06.2007 at about 01:30 PM against the accused/appellants, namely, Ram Sahay, Sunil Kahar and Anil Kahar for the offence under Sections 307, 504 and 506 I.P.C. and Section 7 Criminal Law Amendment Act. During investigation, on the basis of alleged recovery of countrymade firearms, another first information report, Ext. Ka-23 came to be lodged on 21.06.2007 at about 04:15 PM against the accused/appellants No.2 and 3, namely, Sunil Kahar and Anil Kahar for the offence under Section 25 Arms Act on the basis of written report submitted by the S.H.O., Dhurandar Singh, P.W.-7.

5. The inquest proceeding started on 18.06.2007 at 09:00 P.M. and got concluded on 18.06.2007 at 09:30 P.M. The inquest report has been duly proved by S.I. Ambarish Kumar as Ext. Ka-7

6. P.W.-6, Dr. Dinesh Kumar had examined the deceased, Sushil Kumar Rastogi on 18.06.2007 at about 01:30 P.M. and prepared an injury report, which has been proved by him as Ext. Ka-12. According to injury report, Ext. Ka-12, following injuries were found on the body of the deceased, Sushil Kumar Rastogi :-

“1. 2 cm x 4 cm size lacerated margins inverted firearm wound of entry on upper left side chest, no active bleeding but blood was oozing. X-Ray was advised.

2. 2 cm x 3 cm size lacerated on left elbow margins of the wound were irregular skin and muscles were exposed, no active bleeding but blood was oozing.” 

7. The postmortem of the deceased has been conducted by P.W.-5, Dr. Ajai Kumar Priyadarshi, and the postmortem report has been proved by him as Ext. Ka-11.

8. According to the postmortem report, Ext. Ka- 11, the cause of death of the deceased is reported to be shock and haemorrhage as a result of antemortem firearm injuries, and following ante-mortem injuries were reported on the body of the deceased, Sushil Kumar Rastogi :-

“1. Gunshot wound of entry 2 cm x 2 cm left side chest below the medial end of left clavicle, 2 cm lateral to sternum, margins irregular and inverted with tattooing in an area of 4 cm x 4 cm; on exploration upper lobe of left lung was found lacerated. Bullet was found on post chest wall 5 cm lateral to vertebral coloum; about one liter clotted blood was found in the chest cavity.

2. Gunshot wound of entry 2 cm x 2 cm on left elbow with tattooing in an area of 3 cm x 3 cm, the margins were inverted and irregular. On opening the wound ecchymosis were found, metallic bullet was also found on upper end of radius, underneath muscles were found lacerated with clotted blood.”

9. The Investigating Officer recorded the statements of the witnesses under Section 161 of the Code of Criminal Procedure hereinafter referred to as “ Cr.P.C” . He visited the places of occurrence and prepared two site plans thereof and proved the same as Ext. Ka-2 and Ext. Ka-18.

10. Upon conclusion of investigation, the Investigating Officer submitted a charge sheet, Ext. Ka-25 for the offences under Sections 302, 504 and 506 I.P.C. and Section 7 of Criminal Law Amendment Act, against all the accused/ appellants, namely, Ram Sahay, Sunil Kahar and Anil Kahar. He has also submitted a charge sheet, Ext. Ka-22, under Section 25 Arms Act against the accused/ appellants No.2 and 3, namely, Sunil Kahar and Anil Kahar.

11. Charges for the offence under Sections 302, 504 and 506 I.P.C. and Section 7 of Criminal Law Amendment Act were framed against the accused/ appellants, namely, Ram Sahay, Sunil Kahar and Anil Kahar and charge for the offence under Section 25 (1- B) of Arms Act was framed against the accused/ appellants No.2 and 3, namely, Sunil Kahar and Anil Kahar, who denied the charges and claimed to be tried.

12. In order to bring home guilt of the accused/ appellants, the prosecution has examined Pramod Kumar Rastogi, complainant, as P.W.-1, Ram Nath Srivastava as P.W.-2, S.I. Trilok Nath Dubey as P.W.-3, S.I. Ambarish Kumar as P.W.-4, Dr. Ajay Kumar Priyadarshi as P.W.-5, Dr. Dinesh Kumar as P.W.-6, Inspector Dhurandar Singh as P.W.-7, Constable Om Prakash Awasthi as P.W.-8, S.I. Yogendra Pal Singh as P.W.-9, Head Constable Umrao Singh as P.W.-10, and Inspector Suresh Chandra Malviya as P.W.-11.

13. The accused/ appellants, in their statements recorded under Section 313 Cr.P.C., have stated the prosecution story to be false. They have also stated to have been falsely implicated in this case. They also claimed to be innocent.

14. The defence has examined Daya Shankar Verma, Executive Officer, Nagar Palika, Maholi as D.W.- 1.

15. The learned trial court, after appreciating the evidence available on record, rendered the impugned judgment and order dated 26/30.03.2011 whereby the accused/ appellants came to be convicted as aforesaid.

16. Aggrieved by the aforesaid impugned judgment and order dated 26/30.03.2011, the accused/ appellants have preferred the instant criminal appeal.

17. Learned counsel for the accused/ appellants has submitted that the appellants were falsely implicated in this case for some ulterior reasons.

18. His further submission is that though the prosecution has tried to project that there was some pre-existing enmity between the appellants and the deceased, however, the prosecution miserably failed to establish such a motive, which led the appellants to kill the deceased.

19. His next submission is that absence of crime number and sections in the inquest report amply shows that the first information report was ante timed. Therefore, the same looses its significance. The appellants, therefore, could not have been convicted on the basis of prosecution story, which was setup by means of such an ante timed first information report.

20. His further submission is that none of the alleged eye-witnesses was present at the place of occurrence and they did not see this incident. This fact can be ascertained by various glaring inconsistencies appearing in their testimonies, which the learned trial court failed to appreciate. This fact also renders the impugned judgment and order dated 26/30.03.2011 perverse.

21. His next submission is that it has come in the testimonies of some of the witnesses that the deceased had written names of the appellants on his denim trouser, which he was wearing at the time of incident, which is not only unnatural; rather it is an attempt to falsely rope in the appellants

22. Insofar as the appellant No.1, Ram Sahay is concerned, his submission is that the only role assigned to him is that of exhortation. He submits that if the prosecution story is taken to be true for the sake of argument, the two other armed appellants No.2 and 3, namely, Sunil Kahar and Anil Kahar, who had prior enmity with the deceased, never needed any instigation or exhortation while committing the crimein-question. Therefore, he submits that there is no evidence, whatsoever, against the appellant No.1, Ram Sahay to convict him for the offence under Section 302 with the aid of Section 34 I.P.C.

23. His further submission is that so far as the appellants No.2 and 3, namely, Sunil Kahar and Anil Kahar are concerned, the F.S.L. report does not establish use of the firearms, which were allegedly recovered from their possession in committing the murder of the deceased. In such a situation, the appellants No.2 and 3, namely, Sunil Kahar and Anil Kahar also deserved benefit of doubt, however, by not extending benefit of doubt to appellants No.2 and 3, the learned trial court committed material illegality

24. His next submission is that the appellants No.1, 2 and 3 were aged about 56, 28 and 26 years respectively on the date of incident. Having regard to the fact that the accused-appellants have no prior criminal history, the sentence awarded to them deserves to be modified in view of the law laid down by Hon’ble the Supreme Court in Deen Dayal Tiwari vs. State of Uttar Pradesh 2025 SCC OnLine SC 237 , wherein, Hon’ble the Supreme Court in paragraph No.23 has held as under:-

“23. This Court, while exercising its appellate jurisdiction under Article 136 of the Constitution of India, possesses the authority to scrutinize not only the conviction of an accused but also the appropriateness of the sentence imposed. As articulated in the principles laid down in Swamy Shraddananda, (2008) 13 SCC 767, the power to impose or modify a sentence within the prescribed framework of the Penal Code is exclusively vested in the High Court and this Court. The alternate punishment for offences punishable by death, such as imprisonment for a specific term exceeding 14 years or until the natural life of the convict, remains within the judicial conscience of this Court and the High Court. This ensures that the gravity of the offence, the mitigating and aggravating circumstances, and the possibility of reformation are thoroughly assessed before irrevocable sentences such as capital punishment are affirmed. Therefore, the commutation of a death sentence to imprisonment for the remainder of the convict's natural life, as an alternative to death, is well within the judicial prerogative of this Court and adheres to the constitutional mandate of ensuring justice. The Constitution Bench of this court in Union of India v. V. Sriharan, (2016) 7 SCC 1 have propounded upon these principles. The relevant paras from the same have been reproduced hereunder:

“103. In fact, while saying so we must also point out that such exercise of power in the imposition of death penalty or life imprisonment by the Sessions Judge will get the scrutiny by the Division Bench of the High Court mandatorily when the penalty is death and invariably even in respect of life imprisonment gets scrutinised by the Division Bench by virtue of the appeal remedy provided in the Criminal Procedure Code. Therefore, our conclusion as stated above can be reinforced by stating that the punishment part of such specified offences are always examined at least once after the Sessions Court's verdict by the High Court and that too by a Division Bench consisting of two Hon'ble Judges.

104. That apart, in most of such cases where death penalty or life imprisonment is the punishment imposed by the trial court and confirmed by the Division Bench of the High Court, the convict concerned will get an opportunity to get such verdict tested by filing further appeal by way of special leave to this Court. By way of abundant caution and as per the prescribed law of the Code and the criminal jurisprudence, we can assert that after the initial finding of guilt of such specified grave offences and the imposition of penalty either death or life imprisonment, when comes under the scrutiny of the Division Bench of the High Court, it is only the High Court which derives the power under the Penal Code, which prescribes the capital and alternate punishment, to alter the said punishment with one either for the entirety of the convict's life or for any specific period of more than 14 years, say 20, 30 or so on depending upon the gravity of the crime committed and the exercise of judicial conscience befitting such offence found proved to have been committed.

105. We, therefore, reiterate that the power derived from the Penal Code for any modified punishment within the punishment provided for in the Penal Code for such specified offences can only be exercised by the High Court and in the event of further appeal only by the Supreme Court and not by any other court in this country. To put it differently, the power to impose a modified punishment providing for any specific term of incarceration or till the end of the convict's life as an alternate to death penalty, can be exercised only by the High Court and the Supreme Court and not by any other inferior court.

106. Viewed in that respect, we state that the ratio laid down in Swamy Shraddananda (2) [Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767 : (2009) 3 SCC (Cri) 113] that a special category of sentence; instead of death; for a term exceeding 14 years and put that category beyond application of remission is well founded and we answer the said question in the affirmative. We are, therefore, not in agreement with the opinion expressed by this Court in Sangeet v. State of Haryana [Sangeet v. State of Haryana, (2013) 2 SCC 452 : (2013) 2 SCC (Cri) 611] that the deprival of remission power of the appropriate Government by awarding sentences of 20 or 25 years or without any remission as not permissible is not in consonance with the law and we specifically overrule the same.””

(emphasis supplied by us)"

25. Learned counsel for the appellants, thus, submits that in view of aforesaid submissions, the impugned judgment and order dated 26/30.03.2011 passed by the learned trial court is perverse on the face of it, which deserves to be set aside and the appeal deserves to be allowed.

26. While opposing the aforesaid submissions advanced by learned counsel for the appellants, learned A.G.A. has submitted that a first information report came to be lodged on 18.06.2007 at about 01:30 PM at Police Station Maholi, District Sitapur. The incident occurred at 12.45 PM on 18.06.2007. Thus, a prompt first information report came to be lodged. There is nothing on record to show that the first information report is ante-timed. The fact that the prosecution witnesses of fact as also formal witnesses have deposed in a consistent manner, led the learned trial court to place reliance on their testimonies, which ultimately led to conviction of appellants for offences as aforesaid and who have been rightly awarded punishment for life imprisonment, wherein, no interference by this Court is warranted in the facts of this case.

27. At the outset, it is relevant to mention that S.I. Trilok Nath Dubey has been examined as P.W.-3, who has prepared the site plan and proved the same as Ext. Ka-2. He has also recovered shoes and slippers, sealed them and proved a fard thereof as Ext. Ka-3. He has also recovered two empty cartridges and proved a fard thereof as Ext. Ka-4. He has also taken samples of plain soil and bloodstained soil into two containers and proved a fard thereof as Ext. Ka-5. He had also recovered a country made pistol and one live cartridge .315 bore from the accused, Sunil Kahar and another country-made pistol and two live cartridges from another accused, Anil Kahar and proved a fard thereof as Ext. Ka-6. S.I. Ambarish Kumar has been examined as P.W.-4. He has prepared an inquest report, which has been proved by him as Ext. Ka-7. He has also prepared photo lash and proved the same as Ext. Ka-8. He has also prepared challan lash and proved the same as Ext. Ka-9. He has also proved the Police form No.33 as Ext. Ka-10. Dr. Ajai Kumar Priyadarshi has been examined as P.W.-5, who has conducted the postmortem of the deceased and has reported the cause of death of the deceased to be shock and haemorrhage as a result of ante-mortem injuries. He has proved the postmortem report of the deceased as Ex. Ka-11. Dr. Dinesh Kumar has been examined as P.W. 6, who has examined the injuries on the body of the deceased, and proved an injury report as Ext. Ka-12. Inspector Dhurandar Singh has been examined as P.W.-7, who has prepared a recovery memo and proved the same as Ext. Ka-6. Constable Om Prakash Awasthi has been examined as P.W.-8, who has prepared the chik report and proved the same as Ext. Ka-13, and a carbon copy of the GD as Ext. Ka-14. He has also given information regarding the death of Sushil Kumar Rastogi and proved the same as Ext. Ka-15. He has also prepared another GD with the alteration of charges after the death of Sushil Kumar Rastogi and proved the same as Ext. Ka-16. He has also sent the special report through GD report and proved the same as Ext. Ka-17. S.I. Yogendra Pal Singh has been examined as P.W. 9, who has prepared a site plan and proved the same as Ext. Ka-18. He has also obtained sanction from the District Magistrate to prosecute the accused, Anil Kahar and Sunil Kahar, and proved the same as Ext. Ka-19 and Ext. Ka-21. He has also prepared a chargesheet against the accused Sunil Kahar and Anil Kahar and proved the same as Ext. Ka-20 and Ext. Ka-22 respectively. Head Constable Umrao Singh has been examined as P.W.- 10, who has prepared a chik report and proved the same as Ext. Ka-23 and photo copy of the same as Ext. Ka-24. Inspector Suresh Chandra Malviya has been examined as P.W.-11, who has proved the chargesheet as Ext. Ka-25.

28. Having heard learned counsel for the appellants, learned A.G.A. for the State and upon perusal of the record, we notice that though the prosecution has tried to impute a motive to the appellants to commit the crime in question by stating that there was a dispute over a pond between the deceased and the appellants, however, we do not find any credible evidence on record to establish that any such pond was ever leased out in favour of the deceased or the accused persons. However, having noticed as aforesaid, we make it clear that in a case based on direct ocular testimonies of prosecution witnesses, the motive loses its significance. It is no more res integra if the occurrence is proved, motive in such a situation is immaterial. In this regard, a judgment of Hon’ble the Supreme Court in Bahal Singh vs. The State of Haryana (1976) 3 SCC 564 may be usefully referred to.

29. It is also relevant to mention that even if motive is not established, the evidence of an eyewitness is not rendered untrustworthy as was held by Hon’ble the Supreme Court in Shivaji Genu Mohite vs. The State of Maharashtra (1973) 3 SCC 219 .

30. According to the prosecution story as set out in the written report, Ext. Ka-1, the deceased, Sushil Kumar Rastogi, was killed by the accused persons on 18.06.2007. The appellants No. 2 and 3, namely, Sunil Kahar and Anil Kahar, are stated to have opened fire, whereas the appellant No. 1, Ram Sahay, is stated to have exhorted the appellants No. 2 and 3 to kill the deceased. The motive is stated to be a dispute between them over a pond. It appears that, according to the prosecution story, P.W.-1, Pramod Kumar Rastogi, and P.W.-2, Ram Nath Srivastava, are two eyewitnesses of the incident. P.W.-2, Ram Nath Srivastava, is an employee of the deceased, whereas P.W.-1, Pramod Kumar Rastogi, is the younger brother of the deceased, who is stated to have reached the place of occurrence because the deceased had called him. In this view of the matter, it remains to be seen that how far the testimonies of the two eyewitnesses are reliable. P.W.-2, Ram Nath Srivastava, being an employee of the deceased, appears to be a natural witness, whose presence at the place of occurrence was also natural. So far as P.W.-1, Pramod Kumar Rastogi is concerned, he is the younger brother of the deceased, who, in his testimony as P.W.-1, has stated that there is also a shop of P.W.-1, Pramod Kumar Rastogi, in the market, which is situated at a distance of about 200 meters from the shop of the deceased. He had gone to his brother’s shop, i.e., the shop of the deceased, as the deceased had called him. The distance between the shop of the deceased and the shop of P.W.-1, Pramod Kumar Rastogi, is so proximate that even his presence at the place of occurrence appears to be natural.

31. Needless to mention that nothing in crossexaminations of P.W.-1, Pramod Kumar Rastogi and P.W.-2, Ram Nath Srivastava, has surfaced to indicate that they were not present at the spot on the date and time of occurrence.

32. In the aforesaid factual background, when we scrutinize the testimonies of the aforesaid two witnesses, we find that the presence of the aforesaid two witnesses of fact, namely, P.W.-1, Pramod Kumar Rastogi, and P.W.-2, Ram Nath Srivastava, at the place of occurrence on 18.06.2007 at 12:45 PM, when the incident in question is stated to have taken place, is natural and has been proved by the prosecution. The aforesaid two witnesses of fact, namely, P.W.-1, Pramod Kumar Rastogi, and P.W.-2, Ram Nath Srivastava, have stated in their testimonies that it is the appellants No. 2 and 3, namely, Sunil Kahar and Anil Kahar, who opened fire and shot the deceased dead using their firearms and these witnesses witnessed this incident. We have also noticed that the fact of recovery of countrymade firearms from the possession of the appellants No.2 and 3, namely, Sunil Kahar and Anil Kahar, has been proved by P.W.-3, S.I. Trilok Nath Dubey as Ext. Ka-6, which, according to ballistic reports, Ext. Ka-26 and Ext. Ka-27, have matched with the recovered bullets.

33. The postmortem report, Ext. Ka-11, which has been proved by P.W.-5, Dr. Ajai Kumar Priyadarshi, also proves that there were two firearm injuries (entry wounds) on the body of the deceased, which also corroborate the prosecution story as contained in the written report, Ext. Ka-1. to the effect that on 18.06.2007, the appellants had come at the place of occurrence, and two out of them i.e. appellants No.2 and 3 shot the deceased dead at place “A” as shown in the site plan, Ext. Ka-2. Therefore, the prosecution story insofar as appellants No.2 and 3 stands proved on the basis of cogent and reliable testimonies of prosecution witnesses, namely, P.W.-1, Pramod Kumar Rastogi, P.W.-2, Ram Nath Srivastava, P.W.-3, S.I. Trilok Nath Dubey and P.W.-5, Dr. Ajay Kumar Priyadarshi.

34. So far as the role of appellant No.1, Ram Sahay is concerned, it is significant to mention that on the date of incident, he is stated to be accompanying his two sons/appellants No.2 and 3, namely, Sunil Kahar and Anil Kahar, who were armed. The appellant No.1 was admittedly unarmed. He was aged about 56 years on the date of incident. He is stated to have extended exhortation to kill the deceased. However, except the role of exhortation, he has not been assigned any other role, whatsoever, in committing the crime-in-question. The fact remains that the appellant No.1, Ram Sahay was unarmed, and there is nothing on record to show that the other appellants, No. 2 and 3, namely, Sunil Kahar and Anil Kahar, who are stated to be armed and who shared the intention to kill with each other, also shared the same intention with the appellant No.1, particularly when the two armed assailants/appellants, who are well-grown and well-built, were themselves able to execute their plan to kill the deceased. The presence of their father/appellant No. 1, Ram Sahay, who was aged about 56 years on the date of the incident, would not, per se, lead us to conclude that he was sharing the common intention of appellants No. 2 and 3 to kill the deceased. Therefore, in our considered opinion, the finding of the learned trial court to convict appellant No. 1, Ram Sahay with aid of Section 34 I.P.C. is not supported by the evidence on record in this regard.

35. Hon’ble the Supreme Court in State of Uttar Pradesh vs. Rohan Singh and another passed in Criminal Appeal No.892 of 1985 on 14.12.1994 has held that Section 34 I.P.C. is attracted only if the accused shared common intention and not where they shared only similar intention.

36. Hon’ble the Supreme Court in Suresh and another vs. State of Uttar Pradesh (2001) 3 SCC 673 has also held that the distinction between “common intention” and “similar intention” may be fine but is nonetheless a real one and if overlooked may lead to miscarriage of justice. Though, burden of poof of common intention is on the prosecution, however, it can be on the basis of inferences to be drawn from the conduct of accused as well as other relevant circumstances. When we analyze the evidence available in respect of role of appellant No.1, Ram Sahay, we notice that according to prosecution’s own story, he was unarmed, who is stated to have extended exhortation from some distance to other two assailants i.e. appellants No.2 and 3, who were young and armed and who hardly required any kind of instigation, exhortation or encouragement to kill the deceased. Therefore, the appellant No. 1, Ram Sahay, deserves acquittal of all the charges levelled against him, which has been recorded against him with the aid of Section 34 I.P.C.

37. Our aforesaid finding is fortified by a judgment rendered by Hon’ble the Supreme Court in Dajya Moshya Bhil and others vs. State of Maharashtra 1984 (Supp) SCC 373 , wherein it has been held by Hon’ble the Supreme Court that to attract Section 34 I.P.C., it is not sufficient to prove that each of the participating culprits had the same intention to commit a certain act. What is required is that each accused must share the intention of the other. When a murder is committed and two assailants are armed, whereas only one accused was unarmed, the common intention of all three, according to Hon’ble the Supreme Court, stood ruled out.

38. Thus, having concluded that the prosecution was able to prove its case on the basis of cogent and reliable evidence that, on 18.06.2007 at 12:45 PM, appellants No. 2 and 3, namely, Sunil Kahar and Anil Kahar, killed the deceased, we find that the finding of guilt of appellants No. 2 and 3, recorded by means of the impugned judgment and order dated 26/30.03.2011 for the offence under Section 302 I.P.C. and Section 25(1-B) Arms Act, does not suffer from any illegality or irregularity and deserves to be affirmed.

39. So far as the quantum of sentence awarded to the appellants No.2 and 3, namely, Sunil Kahar and Anil Kahar, are concerned, the learned counsel for the appellants argued with vehemence that the sentence awarded to appellants No. 2 and 3, namely, Sunil Kahar and Anil Kahar, was excessive, as they were young, aged about 28 and 26 years respectively on the date of the incident. He also submitted that, in the absence of evidence on record to show that they had any previous criminal history, and without considering the fact that there was every possibility of their reform, the imposition of life imprisonment is legally unsustainable, which deserves to be modified.

40. Though, this submission was opposed by the learned A.G.A., however, in this regard, we find it relevant to refer to a judgment rendered by Hon’ble the Supreme Court in Deen Dayal Tiwari’s case (supra) and having considered the facts in its entirety and after taking into account the manner of commission of this incident, the age of the appellants No.2 and 3, namely, Sunil Kahar and Anil Kahar, and the fact that there was no prior criminal history of the appellants No.2 and 3, we, while affirming the finding of conviction of the appellants No.2 and 3, namely, Sunil Kahar and Anil Kahar, for the offence punishable under Section 302 I.P.C. and Section 25(1-B) Arms Act recorded vide impugned judgment and order dated 26/30.03.2011, in the facts of this case, find it appropriate to modify the sentence awarded to them vide impugned judgment and order dated 26/30.03.2011 for the offence under Section 302 I.P.C. from life imprisonment to twenty years’ rigorous imprisonment with remission with a fine of Rs.50,000/- each, and in default of payment of fine, the appellants No.2 and 3, namely, Sunil Kahar and Anil Kahar are directed to undergo one year’s rigorous imprisonment. However, we affirm the sentence awarded to the appellants No.2 and 3, namely, Sunil Kahar and Anil Kahar, for the offence under Section 25(1-B) Arms Act. All the sentences are directed to run concurrently.

41. The appellant No.1, Ram Sahay is acquitted of charge under Section 302 read with Section 34 I.P.C. He is on bail. He need not surrender. His bail bond is cancelled and sureties are discharged.

42. The appellant No.1, Ram Sahay is directed to file a personal bond and two sureties in the like amount to the satisfaction of the court concerned in compliance of Section 437-A Cr.P.C. within six weeks from today.

43. Accordingly, the present criminal appeal is partly allowed.

44. The appellants No.2 and 3, namely, Sunil Kahar and Anil Kahar are on bail. They are directed to surrender in the concerned court to serve out the remaining sentence within six weeks from today. As soon as they surrender in the court concerned, their personal bonds shall stand cancelled and sureties shall also stand discharged. In case, the surviving appellants do not surrender in the court concerned within the specified period, the learned trial court concerned shall issue warrant for their arrest for serving out the remaining sentence.

45. It is also directed that the period already undergone by the appellants No.2 and 3, namely, Sunil Kahar and Anil Kahar, either as under trial or post-conviction, shall be adjusted towards the sentence awarded by this Court in terms of Section 428 Cr.P.C.

46. It is made clear that the learned trial court shall be at liberty to disburse the entire amount of fine imposed against the appellants No.2 and 3 as aforesaid to the legal heirs of the deceased, Sushil Rastogi, in accordance with provisions contained in Section 357(2) Cr.P.C.

47. Let the trial court record alongwith a copy of this judgment be transmitted forthwith to the learned trial Court for information and necessary compliance.