Honble SAXENA, J.–Appellants Dharampal Singh & Jai Vir Singh faced trial before the Additional Sessions Judge, Khetri, who by his judgment dated 27.8.94 convicted Dharampal Singh for offences u/Ss. 302, 459,IPC & 27 of the Arms Act, and Jai Vir Singh u/Ss. 302/34 & 459/34 IPC, and sentenced each one of them to imprisonment for life with a fine of Rs. 2,000/-, in default thereof, to further undergo RI for one year u/S. 302 /302 r/w S.34, IPC and to nine years RI with a fine of Rs.1,000/- in default thereof to undergo RI for six months on the second count. For the offence u/S.27 of the Arms Act, the learned trial Judge sentenced Dharampal Singh to undergo eight years RI with a fine of Rs. 500/- in default thereof, to further undergo RI for five months. The learned trial Judge further directed that appellants" substantive sentences shall run concurrently. (2). It appears that on 4.12.1989 at 1.45 AM, PW3 Jai Singh submitted written report Ex.P.1 to PW7 Sultan Singh SHO PS Khetri to the effect that on 3.12.89 at about 7-7.15 PM. his younger brother Hari Singh (deceased) after having his dinner had gone to the well situated in their agricultural field and that he (Jai Singh), his mother (PW 10 Chandra Bai), father (PW 1 Maman Singh), sister (PW 6 Kumari Saroj, Nar Singh and his wife (PW 2 Smt. Vidya) were taking their meals in their house situated in village Kishanpura; that all of a sudden, somebody pushed the doors of his drawing room (Baithak), and they heard appellant Dharampal Singh shouting and calling them to come out. When they did not open the doors of the Baithak, Dharampal Singh, who was armed with a gun, came inside their house from the main gate and fired towards Narsingh (deceased), who at that moment of time, was coming after drinking water from their ``Parinda (place for keeping earthen pots of water). Appellant Dharampal Singh also threatened to kill all of time. At that time, appellant Jai Vir Singh was also with Dharampal. Dharampal Singh continued giving threats to kill them. Appellant Dharampal Singh also threatened to kill all of time. At that time, appellant Jai Vir Singh was also with Dharampal. Dharampal Singh continued giving threats to kill them. Jai Singh further informed that while he was taking away injured Narsingh in a camel cart to Basai Hospital, PW13 Munshi Singh and PW 14 Sanwat Singh came there and informed him that appellant Dharampal Singh had also committed the murder of Hari Singh (another brother of informant Jai Singh) by firing a gun shot near a Dharamshala, Jai Singh further mentioned in his written report Ex.P.1 that when he reached near Dharamshala, he found Hari Singh lying dead. Narsingh succumbed to his injuries near Basai bus stand. Thereupon his dead body was brought back. Jai Singh also mentioned in report EX.P.1 that Dharampal Singh was serving in C.R.P.F and posted at Bhatinda (Punjab), from where the latter had brought the Government rifle by which he had committed mur- ders of Hari Singh & Nar Singh. (3). On this report, formal FIR Ex.P.2 was drawn. PW17 Sultan Singh SHO inspected the place of occurrence near Dharamshala in village Kishanpura and prepared site plan Ex.P.3. There he found the dead body of Hari Singh lying in the Verandah. He also picked a bullet, which was found embedded in the wall of Dharamshala. He prepared memo of dead body of Hari Singh Ex.P.6 and lifted blood stained soil and the sample of control soil vide seizure memo Ex.P.22 and P.21, respectively as also seizure memo Ex.P.23 of blood stained bullet. He prepared inquest report Ex.P.18 of deceased Hari Singh. (4). Sultan Singh further inspected the place of occurrence in the house of the informant situated in village Kishanpura. He noticed that pieces of lead of the bullet were embedded in a wall at a height of about 3 ft. and that near the "Parinda" the blood was splashed on its wall as also on the Kutcha floor (Aangan). He prepared site plan Ex.P4, memo of dead body of Nar Singh Ex.P. 5 which was at that time placed in the "Baithak". He also lifted the blood stained soil from the wall and the Kachcha floor and the sample of control soil vide seizure memoes Ex.P.25 and P.26. He prepared site plan Ex.P4, memo of dead body of Nar Singh Ex.P. 5 which was at that time placed in the "Baithak". He also lifted the blood stained soil from the wall and the Kachcha floor and the sample of control soil vide seizure memoes Ex.P.25 and P.26. PW17 Sultan Singh seized an empty cartridge, which was found lying in the Aangan and the pieces of lead of the bullet embedded in the wall vide seizure memo EX.P.27 and sealed all the packets separately. He also prepared inquest report Ex.P.19 of deceased Narsingh. (5). On the same day, PW5 Dr. Narendra Singh, Medical Officer Incharge, Ajit Hospital, Khetri conducted medico-legal autopsies of deceased Hari singh and Narsingh. The doctor as per post mortem report Ex.P.7 found the following external injuries on the dead body of Narsingh : (1) Firearm wound - Wound of entrance 1 Cm. x 1 Cm. with circular abrasion collar edges of the wound inserted on right side of chest 4 Cm. above to right nipple - direction of wound slightly upwards. (2) Wound of exit 3 & 1/2 cm x 2 & 1/2Cm., edges were everted on right side of back of chest just above to inferior angle of scapula. On dissection, he noticed fracture of right 5th rib posterior side, fracture of right scapula bone at inferior angle in the form of a hole. Right lung below the site was injured. All those injuries were ante mortem in nature. The doctor also noticed holes on the front of the chest as also on the right side of Jersy, Shirt and baniyan of Narsingh and on the backside of those garments corresponding to sites of afore mentioned injuries. Those garments were soaked with blood. Dr. Narendra Singh opined that the cause of death of Nar Singh was haemorrhage and shock due to injury on right lung caused by gun shot (firearm wound). (6). PW5 Dr. N.S. Gill vide post mortem report Ex.P.8 found the following external injuries on the dead body of Hari Singh : (1) Firearm wound - Wound of entrance 1 cm x 1 cm with eccentric abrasions, collar edges inverted on mid of chest at sternum left side border, with direction oblique downwards . (6). PW5 Dr. N.S. Gill vide post mortem report Ex.P.8 found the following external injuries on the dead body of Hari Singh : (1) Firearm wound - Wound of entrance 1 cm x 1 cm with eccentric abrasions, collar edges inverted on mid of chest at sternum left side border, with direction oblique downwards . (2) Wound of exit 2 & 1/2 cm x 2 cm, edges were everted, muscle fibre with bone pieces were coming out from wound at right side mid of back just right side to back bone. On dissection, he noticed wound on chest at sternum left side. Pleurae were injured on both sides, and blood was present. There were multiple lacerations on both lungs. There was a hole present in the pericardium on the anterior and posterior sides. There were lacerated wounds on the right atrium, and ventricle. Both the chambers of the heart were empty. Peritoneum was injured and its cavity was filled with blood. Posterior wall of small intestines was damaged and there was lacerated wound on the spleen. There was a fracture of the sternum in the form of hole on the left side as also fracture of 10th vertebrae of the vertibral column. All those injuries were ante mortem in nature. The doctor opined that the cause of death of Hari Singh was haemorrhage and shock due to injuries on the heart, both lungs and spleen, which were caused by fire arm. He also noticed holes corresponding to the injuries on the Jersy, shirt and baniyan of deceased Harisingh at the chest and mid of the back side. (7). PW17 Sultan Singh seized and sealed blood stained garments of Hari Singh and Narsingh vide seizure memoes Ex.P.23 & P.24 and sealed them in separate packets. Appellant Dharampal Singh, who was serving in The C.R.P.F. 91, Battalion Bhatinda was arrested in his Unit as late as on 1.6.1990 vide arrest memo Ex.P.11 as he was absconding. Surjeet Singh Inspector C.R.P.F. of the same Unit produced one 7.62 bore rifle and two bandoleers having 66 live cartridges & 34 empty cartridges, which were alleged to have been entrusted to appellant Dharampal Singh during his training. Those articles were seized and sealed by Mool Singh ASI PS Khetri vide seizure memoes Ex.P.9 & P.10. (8). . . . . . . . . . . . . . . . . . . . Those articles were seized and sealed by Mool Singh ASI PS Khetri vide seizure memoes Ex.P.9 & P.10. (8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (11). Since appellant Jai Vir Singh could not be apprehended, initially a challan was filed against appellant Dharampal Singh for offences under Secs. 459,302, IPC & 27 of the Arms Act and the investigation was kept pending u/S. 173 (8) Cr.P.C. against appellant Jaivir Singh, who was arrested on 30.3.1991. Thereafter a supplementary charge sheet was filed against him in the Court of the learned Munsif and Judicial Magistrate, Khetri, who in turn, committed the case to the learned Sessions Judge. (12). Appellant Dharampal Singh was charged for offences under Secs.459,302 IPC and 27 of the Arms Act,whereas appellant Jai Vir Singh was charged for offences u/Ss. 459/34 and 302/34 IPC. The appellants denied the indictments and claimed trial. To prove its case, the prosecution examined as many as 19 witnesses. The appellants in their statements under Section 313, Cr.P.C. denied all the circumstances appearing against them in the prosecution evidence, asserted that the prosecution witnesses had deposed against them due to enemity and litigation pen- ding between them and that a false case has been foisted against them. To prove its case, the prosecution examined as many as 19 witnesses. The appellants in their statements under Section 313, Cr.P.C. denied all the circumstances appearing against them in the prosecution evidence, asserted that the prosecution witnesses had deposed against them due to enemity and litigation pen- ding between them and that a false case has been foisted against them. Appellant Jai Vir Singh took the plea of alibi and claimed that on 3.12.89, he was on duty from 9 AM to 5 PM as Store keeper in M/s Padma Automobiles, G/50. Loni Road, Gokpulpura New Delhi and that thereafter on that day he remained in his quarter. He examined DW1 Ashok Kumar in his defence. After trial, the learned Sessions Judge found the appellants guilty for afore mentioned offences and sentenced them in the manner indicated above. Hence appeal No.463/94. (13). The State has also filed also D.B. Criminal Appeal No 155/95 against the appellants for enhancement of appellants sentences. (14). Both these appeals are being disposed of by a common judgment. (15). We have heard Shri S.R. Bahwa, the learned counsel for the appellants and Shri M.L. Goyal the learned Public Prosecutor, and Shri M.R. Mitruka the learned counsel for the complainant at length and perused the record of the trial court in extenso. (16). Shri Bajwa assailed the impugned judgment on multiple grounds. He vig- orously canvassed that as per the prosecution case the murder of Hari Singh was committed near Dharamshala, whereas the murder of Narsingh was alleged to have been committed in the house of PW1 Maman Singh situated in the village. Thus, those murders were admittedly committed at different places and at different times. In such circumstances, the joint trial for both murders is against the provisions of Section 218 Cr.P.C. Since the alleged murders were committed in two separate transactions as such, the joint trial has caused substantial prejudice to the appellants and on this ground alone their trial stands vitiated. (17). His next thrust of argument is that there is voluminous evidence on record to firmly establish that the house of Shri Bux Singh, who is father of the appe- llants, is also situated near the house of Mamam Singh in the same chowk and that the appellants have a right of way therefrom to their house. (17). His next thrust of argument is that there is voluminous evidence on record to firmly establish that the house of Shri Bux Singh, who is father of the appe- llants, is also situated near the house of Mamam Singh in the same chowk and that the appellants have a right of way therefrom to their house. Thus even if the appellants had gone inside the chowk of Maman Singhs house, still then no lurking house trespass or house breaking was committed by them and, therefore, offence under Sec.459, IPC is not at all made out. Hence the learned trial Judge has commi- tted grave illegality in convicting and sentencing them u/S. 459 IPC. (18). Shri Bajwas another contention is that the alleged eye witnesses have vigorously and at random indulged in making improvements and embellishments in their statements during investigation and then before the trial court, that, no specific role was attributed to appellant Jaivir Singh either in written report Ex. P/1 or in their police statements except that he had accompanied appellant Dharampal Singh to the house of Maman Singh. But during trial, these prosecution witnesses have invented a new story and deposed that appellant Jaivir Singh had exhorted appellant Dharampal to commit the murder of Nar Singh. The learned trial Judge ignored this material and substantial improvement. Shri Bajwa urged that admittedly appellant Jaivir Singh was neither armed with any weapon nor any overt act was attributed to him in the FIR and the police statements. Moreover, no charge was framed against him that he had abetted or exhorted appellant Dharampal Singh to commit murder of Narsingh or Hari Singh. In such circumstances, the conviction and sentence of appellant Jaivir Singh for offence u/S. 302 read with Sec. 34 IPC deserves to be set aside. (19). His another plank of argument is that all the eye witnesses are close relatives and are partisan witnesses. Names of PW4 Ganga Singh, PW7 Smt.Vimlesh, PW8 Smt. Krishna, who have claimed that they were also present in the chowk at the time of the alleged murder of Narsingh do not find mention in Ex.P.1. Similarly the name of PW9 Harnath Singh do not find mention in the FIR, who asserted that he was present near Dharamshala and had witnessed the murder of Hari Singh. Similarly the name of PW9 Harnath Singh do not find mention in the FIR, who asserted that he was present near Dharamshala and had witnessed the murder of Hari Singh. Thus, their presence at the time of the alleged incidents becomes highly doubtful and the prosecution case gets shadowed under the penumbra of suspicion. (20). As regards murder of Hari Singh, alleged eye witnesses PW13 Mahshi Singh and PW14 Sanwat Singh, whose names find mention in the FIR have not supported the prosecution case. They have also not corroborated the statements of PW9 Harnath Singh. The prosecution has deliberately not examined the indepen- dent witnesses of the locality. In such circumstances, no reliance can be placed on the testimony of the alleged eye witnesses, who are close relatives. Shri Bajwa also submitted that inordinate delay in recording statements of various prosecution witnesses by the investigating officer has also not been satisfactorily explained, which makes their testimony doubtful. (21). Shri Bajwas next thrust of argument is that there is direct conflict between the medical and ocular evidence because as per testimony of PW5 Dr. Narendra Singh, the direction of wound of entrance on the right side of the chest of Narsingh was upward, which could only be possible had the assailant fired the gun in a sitting position. On the other hand, as per the testimony of the eye-witnesses, appellant Dharampal Singh had fired the gun in a standing position. This conflict makes the prosecution story doubtful. Shri Bajwa submitted that admittedly, appellant Dharampal Singh did not volunteer any information u/S. 27 of the Evidence Act for the recovery of the rifle and 66 live and 34 empty cartridges, which were seized by Mool Singh ASI on 1.6.90 vide seizure memo Ex.P.10. On the other hand those articles were produced by Saravjit Singh of CRPF Bhatinda. Hence, the said rifle and cartridges were not recovered from the possession of appellant Dharampal Singh. The prosecution also did not examine Saravjit Singh and Mool Singh ASI. Besides this, the contents of the ballistic expert Ex.P.31 were not specifically put to the appellant while recording their statements u/S.313 Cr.P.C. In such circumstances, the alleged recovery of the rifle and cartridges after about six months of the alleged occurrence is meaningless and the same does not connect appellant Dharampal Singh with the Crime. Besides this, the contents of the ballistic expert Ex.P.31 were not specifically put to the appellant while recording their statements u/S.313 Cr.P.C. In such circumstances, the alleged recovery of the rifle and cartridges after about six months of the alleged occurrence is meaningless and the same does not connect appellant Dharampal Singh with the Crime. Similarly, the recovery of empty cartridge vide seizure memo Ex.P.27 from the chowk of Maman Singhs house does not incriminate appellant Dharampal Singh because neither there is any mention in the FIR about the said empty cartridge nor there is any explanation for the inordinate delay in sending the said empty cartridge, to FSL as late as on 27.6.90. Mool Chand ASI, who is alleged to have taken sealed packets to the State FSL, has also not been examined by the prosecution. Thus the material link to prove that the seals of the various packets containing empty cartridges, blood stained garments of the deceased were not tam- pered and those remained intact till they reached the office of the State FSL, is missing. Therefore, the alleged recovery of the empty cartridge vide seizure memo Ex.P.37 is also worthless and the same does not connect the appellant with the crime. (22). Shri Bajwa lastly contended that the learned trial Judge has not made correct appraisal of the evidence on record and has disbelieved the evidence regar- ding the alibi of appellant Jaivir Singh without any valid reason. He has, therefore, prayed that the appellants deserves to be acquitted. (23). On the other hand, Shri M.L. Goyal, the learned Public Prosecutor and Shri M.R. Mitruka, the learned counsel for the complainant vigorously contested that the appellants had enemity and previous litigation with the family of PW1 Maman Singh, that few days back to the incident, appellant Dharampal Singh, who was recruited as a sepoy in the CRPF, had come to the house of Maman Singh and told PW10 Smt. Chandra Devi, mother of the deceased Narsingh and Hari Singh that he would kill them but at that time she any how pacified him. Thereafter on the ill fated day, appellant Dharam Pal Singh armed with a rifle, which was entrusted to him from the CRPF, Bhatinda, and his brother Jaivir Singh, who accompanied the former, formed common intention to commit murders of Maman Singhs sons and in furtherence thereof when they saw Hari Singh going to his field near the Dharamshala, appellant Dharampal Singh fired from his gun causing injuries on the vital part of Hari Singh, which resulted into his instantaneous death. Thereafter, both the appellants immediately went together to the house of Maman Singh and knocked the doors of his `Baithak, which was closed, that Dharampal Singh and Jaivir shouted and asked the inhabitants of the house to come out and that thereafter both of them entered again fired from his rifle and caused injuries on the right side of the chest of Narsingh, which proved fatal. Thus, both the murders were committed in quick succession and in furtherance of the same common intention near Dharamshala and thereafter in the house of Maman Singh, which are situated nearby just about 100 paces. Thus, the alleged incident took place in one series of act, which was connected together as to form the same transaction. Hence neither provisions of Section 218 Cr.P.C. have been violated nor it is a case of misjoinder of trial. Moreover, the appellants have been separately charged for the offence u/s. 459 IPC as also for the murders of Hari Singh and Narsingh, and that Jaivir Singh was specifically charged for forming common intention for committing the murders of Narsingh and Hari Singh, and for his active participation therein. Thus, no prejudice has been caused to the appellants and their conviction and sentence can not be quashed on this ground. (24). The learned Public Prosecutor asserted that the appellants had no right of way through the chowk of Maman Singh and hence they had committed lurking house trespass having made preparation for committing murder of Narsingh and his brothers and therefore, the offence committed by the appellants actually falls u/S. 460 IPC and since the punishment prescribed for offences u/Ss. 459 and 460 IPC are identical, they should be convicted for offence u/S.460 IPC. According to him, the charge for offence u/S.459 IPC is not defective and no failure of justice has been occasioned. 459 and 460 IPC are identical, they should be convicted for offence u/S.460 IPC. According to him, the charge for offence u/S.459 IPC is not defective and no failure of justice has been occasioned. The learned Public Prosecutor asserted that in this case F.I.R. was promptly lodged, wherein the genesis of the incident was disclosed and all the material facts constituting substratum of the prosecution case were mentioned. Since two of his brothers were brutally murdered, informant PW3 Jai Singh was in a perplexed state of mind. The written report Ex.P/1 was scribed by PW4 Ganga Singh, who is another brother of deceased. In the FIR, it has been mentioned by informant Jai Singh that he alongwith his mother, father, sister (meaning thereby PW6 Saroj), brother Nar Singh (deceased) and his wife PW2 Vidya Devi were taking their meals in their house. There is no dispute that PW1 Maman Singh and all of his sons namely Jai Singh PW3, PW4 Ganga Singh, deceased Narsingh and Hari Singh and daughter Kumari Saroj PW6 were living together. In such circumstances, the presence of PW4 Ganga Singh and his wife PW8 Krishna in the house was natural. Therefore, non-mention of their names in the FIR does not make their presence doubtful at the time of the incident unreliable and the same is not fatal to the prosecution. (25). The learned Public Prosecutor contended that since the murder of Narsingh was committed inside the house, there was no question of presence of outsiders or the persons of the locality at that time. The eye witnesses are ofcourse relative witnesses but this is all the more strong reason that they would implicate only the real culprit and not others. Similarly, PW9 Harnath Singh is the uncle of the deceased, who at the time of the murder of Hari Singh was coming from his agricultural field and when he came near the Dharamshala, had seen the said incident. PW9 Harnath Singh is not a chance witness. On the other hand, he is a reliable witness. (26). As regards the delay in recording the police statements, the learned Public Prosecutor has submitted that since murders of two young persons had been committed in the family, the members of family were grief stricken and they were not in a position to give their statements. The investigating officer has given satisfactory explanation for such delay. (26). As regards the delay in recording the police statements, the learned Public Prosecutor has submitted that since murders of two young persons had been committed in the family, the members of family were grief stricken and they were not in a position to give their statements. The investigating officer has given satisfactory explanation for such delay. Moreover, for the laxity or remissness on the part of the investigating officer, the statements of the alleged eye witnesses can not be rejected and, their testimony should be evaluated on merits. (27). The learned Public Prosecutor has vehemently asserted that from the evidence recorded in this case it stands firmly established that appellant Dharampal Singh was armed with rifle and appellant Jaivir Singh had come with him together and that near Dharamshala appellant Dharampal Singh had gunned down Hari Singh and committed his murder and that if appellant Jaivir Singh did not have a common intention with appellant Dharampal Singh then at that point of time, he ought to have withdrawn from his company after the murder of Hari Singh. But, he accompanied Dharampal Singh and went to the house of Maman Singh. He also entered into the chowk of Maman Singh and exhorted Dharampal Singh to kill Narsingh and his brothers and that after Narsingh was murdered, both the appellants went together from the place of occurrence. In such circumstances, it stands well established that he had common intention with appellant Dharampal Singh for committing the murders of Narsingh and Hari Singh. The learned Public Prosecutor has reiterated the reasonings given by the learned trial Judge and supported the impugned judgment. (28). The learned Public Prosecutor and Shri M.R. Mitruka, the learned counsel for the complainant have fervently contended that appellant Dharampal, who was a sepoy in the CRPF unauthorisedly brought the Government rifle and the ammunition, which were entrusted to him to his village Kishanpura and deliberately committed murders of Hari Singh and Narsingh, who were unarmed in a most dastardly and brutal manner and that his act was pre- meditated. In such circumstances, it is one of the rarest of rare cases, wherein he should be awarded capital punishment. (29). In such circumstances, it is one of the rarest of rare cases, wherein he should be awarded capital punishment. (29). On the other hand, Shri Bajwa has reiterated that the appellants have been falsely implicated and the possibility that some others might have committed the murders, cannot be ruled out and that it is not at all a fit case for awarding the extreme penalty. (30). We have bestowed our most anxious and careful consideration to the rival submissions. Before we proceed to arrive at our findings on the arguments advanced at the bar, we feel that it will be conducive to briefly but carefully and closely scrutinise and evaluate the evidence adduced in this case. In re. Murder of Hari Singh (31). PW3 Jai Singh has mentioned in his written report Ex.P.1 that while he alongwith others were carrying injured Narsingh in a camel cart to Basai Hospital, Sanwat Singh & Munshi Singh came there and informed them that appellant Dharampal Singh by firing a gun shot had committed murder of Hari Singh. However, PW13 Munshi Singh and PW14 Sanwat Singh have not supported the prosecution case and they have been declared hostile. They have stated that they are residents of village Dancholi and that they did not see the alleged incident. However, they admitted that their agricultural lands are situated near village Kishanpura. Both of them deposed that on the ill-fated day they had not gone to village Kishanpura. They have also denied various portions of their police statements Ex.P.13 & P.14, with which they were confronted. In such circumstances, both these witnesses do not render any assistance to the prosecution. (32). PW9 Harnath Singh is the uncle of the deceased Narsingh & Hari Singh. His name does not find mention in written report Ex.P.1. He was examined by the investigating officer as late as on 7.12.89, i.e. after four days of the incident. He is aged about 70 years. He deposed that on the ill fated day at about 6-7 p.m., he alongwith Sanwat Singh & Munshi Singh was returning from his well and when he reached Dharamshala, he saw Hari Singh coming from his house and going towards his well and at that time, appellant Dharmapal Singh having a gun in his hand and appellant Jaivir Singh, who was empty handed, were coming from the side of village Dancholi. Hari Singh after seeing the appellants ran and entered into the verandah of the Dharamshala and folded his hands. Appellant Jaivir Singh asked Dharampal Singh to fire. Thereupon the latter fired his gun causing injuries to Hari Singh. There- after the appellants went away towards the house of Maman Singh. Harnath Singh further deposed that he alongwith Munshi Singh and Sanwat Singh went near Hari Singh and found that he had died. This witness stated that thereafter he followed the appellants at a distance of about 100 paces, who knocked the doors of the ``Baithak of Maman Singhs house, which were closed. Then the appellants opened the door of the main gate and entered in the chowk where Narsingh was standing near ``Parinda. The ladies of the house were also standing in the chowk. Those ladies stopped appellant Dharampal. But Dharampal pushed Narsinghs mother (PW10 Chandra) and fell her down. Harnath Singh further stated that appellant Jaivir Singh told, ``Saale ke Goli Maar, Varna Jayega. Thereupon, Dharampal Singh fired a gun shot causing injuries on the chest of Narsingh, who fell down. The inhabitants of the house started crying. Appellant Jaivir Singh told Dharampal Singh that two more brothers were still alive. Thereafter both the appellants hurling abuses went away. Harnath Singh deposed that after the appellants had left, he went inside the house of Maman Singh and tied his Dhoti on the chest of Nar Singh, that thereafter arranging a camel cart, he alongwith Matu Singh, Sanwat Singh, Munshi Singh and others took injured Narsingh to Basai, but he died in the way. Harnath Singh further deposed that after reaching the house of Maman Singh, he had informed the inhabitants of the house that appellants Dharampal Singh and Jaivir Singh had murdered Hari Singh, who was lying died near Dharamshala. Thus, this witness has tried to pose himself as an eye witness of both the murders. But, Munshi Singh and Sanwat Singh have not supported his testimony at all. PW9 Harnath Singh in his cross examination admitted that he was also a co-sharer in the common well, wherein he alongwith Maman Singh had 1/4th co-share and that they had installed an engine in the common wall and that they have litigation with the appellants father Shri Bux in respect of the agricultural land and the said common wall. (33). PW9 Harnath Singh in his cross examination admitted that he was also a co-sharer in the common well, wherein he alongwith Maman Singh had 1/4th co-share and that they had installed an engine in the common wall and that they have litigation with the appellants father Shri Bux in respect of the agricultural land and the said common wall. (33). He admitted that his house was situated at a distance of 100 paces from the house of Maman Singh but he told that he used to go to his Nohra for sleeping there while his wife used to stay in the house. He stated that his Nohra was situated just appurtenant to the house of Maman Singh. He clearly admitted that he had not seen appellant Dharampal Singh firing the gun shot towards Narsingh but had simply heard a bang of the fire. He also admitted that Dharampal Singh had fired towards Hari Singh at a distance of about ten cubits near the Dharamshala, and that he had seen Dharampal Singh from his backside. He told that he did not ask Dharam- pal Singh not to fire the gun shot because he apprehended that the latter may also shoot him. He told that the police reached in the village on the next day and prepared the site plan in his presence and that the police used to come to his village for 3-4 days and that during that period, he remained there. He told that when the appellants had knocked the doors of the ``Baithak of Maman Singh of house, he was at a distance of about 100 paces from there. But, in his police statement Ex.D.8, he did not state that Hari Singh after seeing the appellants had ran away and entered into the verandah of Dharamshala and had folded his hands and that appellant Jaivir Singh had exhorted Dharampal Singh to shoot him. Similarly, in his police statement he also did not state that he had followed the appellants at a distance of 100 paces, that Narsingh was standing near the verandah and that the ladies had asked Dharampal Singh not to fire and that thereupon Dharampal Singh had pushed the mother of Narsingh and that appellant Jaivir Singh had again exhorted Dharampal to shoot Narsingh and that thereafter the appellants had left Maman Singhs house hurling abuses. When he was confronted with these material omissions in his police statement, this witness failed to give any satisfactory explaination. Harnath Singhs statement also does not find due corroboration from the testimony of any other witness. His name does not find mention in the FIR. His police statement was recorded as late as on 7.12.89, for which he has miserably failed to give any satisfactory explaination. In our considered view, he has tried to materially improve his version during trial. His statement has not been consistent. In such circumstances, his presence at the time of the alleged murder of Hari Singh near Dharamshala and thereafter near the house of Maman Singh appears to be doubtful. Had he seen the incident of murder of Hari Singh and in fact informed Maman Singh and others about that incident, we do not find any valid and proper reason as to why informant Jai Singh did not mention this material fact in written report Ex.P.1, especially when he had mentioned in Ex.P.1 that Munshi Singh and Sanwat Singh had informed him and others that appellant Dharampal Singh shot dead Hari Singh near Dharamshala. In such circumstances, the presence of PW9 Harnath Singh at the time of the alleged incident wherein Hari Singh was murdered and thereafter at the time of murder of Narsingh appears to us highly suspicious. The learned trial Judge therefore, committed grave error in placing reliance on the testimony of this witness. In our considered opinion, the prosecution evidence regarding the murder of Hari Singh is quite vague, feeble, self contradictory and unreliable and on the basis of such lame and lifeless evidence the appellants are entitled to get benefit of reasonable doubt. In reg. Murder of Narsingh (34). The prosecution has examined eye witnesses, PW1 Maman Singh (father of the deceased), PW2 Smt. Vidhya Devi (widow of deceased Narsingh), PW3 Jai Singh & PW4 Ganga Singh both brothers of deceased, PW6 Ms Saroj (sister), PW10 Chandra Bai (mother of the deceased), PW7 Smt. Vimlesh w/o Jaisingh and PW8 Smt. Krishna w/o Ganga Singh. (35). Murder of Narsingh (34). The prosecution has examined eye witnesses, PW1 Maman Singh (father of the deceased), PW2 Smt. Vidhya Devi (widow of deceased Narsingh), PW3 Jai Singh & PW4 Ganga Singh both brothers of deceased, PW6 Ms Saroj (sister), PW10 Chandra Bai (mother of the deceased), PW7 Smt. Vimlesh w/o Jaisingh and PW8 Smt. Krishna w/o Ganga Singh. (35). PW1 Maman Singh aged 72 years deposed that on the ill fated day at about 6-7 PM he was lying in his ``baithak as he had sustained injuries by falling from the back of his camel, that the doors of ``Baithak were closed; that appellants Dharampal & Jaivir Singh came together and entered into his house from the main gate and that Dharampal Singh was armed with a rifle, Jaivir Singh asked Dharampal Singh to shoot Narsingh. Chandra Bai asked them not to kill her son but Dharampal Singh pumped a bullet from his rifle and caused injuries on the chest of Narsingh, who fell down. He stated that at that time his other sons Ganga Singh and Jai Singh and his daughters-in-laws Vimlesh & Vidhya and his daughter Saroj were also present in his house. He deposed that seeing the appellants, Ganga Singh & Jai Singh went inside the room and hided themselves and that thereafter the appellants ran away. He told that Ganga Singh and Jai Singh lifted injured Narsingh and after arranging for the camel cart took him to Basai. Maman Singh also deposed that prior to the incident on 24.11.89 at about 12 O Clock in the night Dharampal Singh armed with loaded rifle had come to his house and asked Chandra Bai, who is also sister of appellants mother, to call her sons and threatened to kill them. Smt. Chandra Bai had requested Dharampal to go to his house and thereupon the latter had gone away. This witness stated that regarding that incident, Jai Singh had lod- ged a report at the police station on 25.11.89. PW17 Sultan Singh SHO has corroborated this fact and stated that a report was lodged by Jai Singh regarding that incident and after inquiry a criminal complaint was lodged in the court against Dharampal Singh under Section 107 read with Section 116 Cr.P.C. (36). PW17 Sultan Singh SHO has corroborated this fact and stated that a report was lodged by Jai Singh regarding that incident and after inquiry a criminal complaint was lodged in the court against Dharampal Singh under Section 107 read with Section 116 Cr.P.C. (36). PW1 Maman Singh admitted that in the chowk of his house, the house of Shribux Singh (father of the appellants) is also situated and that from the chowk a way leads to the house of the appellant. Maman Singh stated that at the time of the incident it had grown dark but the electric lights were burning in his house. He told that when Dharampal Singh had come inside the house, he was lying in his ``Baithak from where the chowk and verandah of his house were visible. He admitted that after hearing the bang of the gun shot, he came to know that his son, Narsingh has been injured. He specifically admitted that he did not state in his police statement that appellant Jaivir Singh had asked Dharampal Singh to shoot Narsingh because the investigating officer did not ask any question to him about this fact. He was confronted with his police statement Ex.D.1, wherein the fact regarding exhortation of appellant Jaivir Singh does not find mention at all. In our view, his explanation for this material omission in Ex.D.1 is far from satisfactory. It is, therefore, abundantly apparent that Maman Singh has unsuccessfully tried to materially improve his version given in his police statement Ex.D.1 and invented the story of the alleged exhortation made by appellant Jaivir Singh. He has also admitted that litigation is pending between him and Shribux Singh in the Court. He pleaded his ignorance that the Munsif Court through an ad interim injunction had restrained him from installing the motor in the common well. He denied the suggestion that he had prevented Shribux Singh and his sons from going to their house situated in the said chowk. He told that when he got up in the ``Baithak and went towards the chowk by that time, the appellants had gone away. (37). He denied the suggestion that he had prevented Shribux Singh and his sons from going to their house situated in the said chowk. He told that when he got up in the ``Baithak and went towards the chowk by that time, the appellants had gone away. (37). PW2 Smt. Vidhya Devi aged 21 years wife of deceased Narsingh, deposed that on the day of the incident at about 7 — 7.30 PM she alongwith her sister-in-laws (Jethanis), Krishna and Vimlesh, and her mother in-law Smt. Chandra Bai and her `Nanad Saroj were cooking meals inside their house and that her father- in-law Maman Singh, who had sustained injuries having fallen from camels back, was lying in the ``Baithak and at that time, somebody knocked the doors of their ``Baithak. She further deposed that she heard the voice of appellant Dharampal Singh, who was shouting that he would kill all of them. Since the doors of the ``Bai- thak were bolted from inside, appellant Dharampal Singh having a rifle in his hand and appellant Jaivir Singh came inside their house from the main gate. At that time, her `Jeth Jai Singh and Ganga Singh were taking their meals. Seeing the appellants, Chandra Bai with folded hands asked the appellants to kill her instead of killing others. By that time, Ganga Singh and Jai Singh went inside their room. Her husband Narsingh was drinking water near the ``Parinda. Appellant Jaivir Singh asked Dharampal Singh to kill Narsingh, whereupon Dharampal Singh fired a gun shot, hitting on the chest of her husband, who fell down. She thereafter raised hue and cry and started weeping and the appellants fled away. She stated that Hari Singh after taking his meal had already proceeded to their well. She deposed that after the appellants fled away from her house, Harnath Singh and two persons, who were residents of village Dancholi, came there and intimated that appellants had shot dead Hari Singh near the Dharamshala. She asserted that she had seen appellant Dharampal Singh firing a gun shot towards her husband Narsingh. She also stated that about 7-8 days prior to the incident, appellant Dharampal had come to their house and threatened to kill them. She asserted that she had seen appellant Dharampal Singh firing a gun shot towards her husband Narsingh. She also stated that about 7-8 days prior to the incident, appellant Dharampal had come to their house and threatened to kill them. In her cross examination, she stated that at the time of the incident, all the four ladies were not inside the kitchen but were in the chowk, where they have installed their ``chulah (place for cooking by burning the wooden), that they were preparing the breads and that from the place of ``chulah, main gate of their house was visible. She admitted that from the verandah of their room, the main gate of the house is not visible. She told that at the time of the incident, appellant Dharampal Singh had fired the gun towards Narsingh from a distance of about 6-7 ft. She answered in the affirmative to the suggestions put up on behalf of the accused appellants that after Dharampal Singh had shot at Narsingh, appellant Jaivir Singh had told the former that two brothers were still alive and that they should also be shot dead. She admitted that in her police statement Ex.D.2 dated 9.12.89, the fact that appellant Jaivir Singh had exhorted and asked Dharampal Singh to shoot Narsingh does not find mention. She stated that after Narsingh sustained injuries, she started weeping and had become unconscious. The testimony of this witness regarding murder of Narsingh at the hands of appel- lant Dharampal Singh has remained consistent, but she has unsuccessfully tried to improve upon her police statement, regarding the alleged exhortation made by appellant Jaivir Singh to kill Narsingh. (38). PW10 Chandra Bai aged 60 years, has corroborated the testimony of PW1 Maman Singh and PW2 Vidhya Devi. She told that her daughter in law Vimlesh was cooking food while she alongwith other ladies was sitting in the chowk. Her husband was inside the ``Baithak. Her son Hari Singh after taking meals had already gone away to the field, that her three other sons, namely Jai Singh, Ganga Singh and Narsingh were taking their meals. At that time, somebody knocked the door of their ``Baithak and she heard the shouts of appellant Dharampal Singh, asking them to come out. He was threatening that he would kill all of them. At that time, somebody knocked the door of their ``Baithak and she heard the shouts of appellant Dharampal Singh, asking them to come out. He was threatening that he would kill all of them. When the doors of ``Baithak were not opened, appellant Dharampal Singh armed with a rifle and Jaivir Singh, who followed him, came inside the house through the main gate. Seeing the appellants Jaisingh and Gangasingh went inside the room and closed the doors. At that time, her another son Narsingh was drinking water near the ``Pari- nda. She deposed that at that point of time, appellant Dharampal Singh fired a gun shot on the chest of Narsingh, who cried and fell down in the chowk. Thereupon she alongwith her daughter-in-laws and daughter raised alarm, whereupon appellant Jaivir Singh told Chillati Kya Ho, Mera Bhai Dharampal Sabhi Ko Marega. She fell down on the feet of appellant Dharampal, wereupon he pushed her and at that time Jaivir Singh asked Dharampal to take out all the four persons and finish them. (39). It may be mentioned that Ms. Chandra Bai in her police statement Ex.D.4, dated 9.12.89 did not state about the alleged exhortations made by Jaivir Singh for killing Narsingh and others. She was confronted with this material omission in Ex.D.4 but she did not give any plausible explanation. Apparently Chandra Bai has improved her statement during trial in this regard. Therefore, the story of alleged exhortations made by Jaivir Singh does not inspire credence. PW10 Chandra Bai stated that appellant Dharampal also pushed the door of the room, wherein Jai Singh and Ganga Singh had taken shelter and that when the door of room could not be opened, they went away. Thereafter PW5 Munshi, Sanwat Singh and Harnath Singh came to their house and informed them that appellant Dharampal had also shot dead Hari Singh near Dharamshala. She admitted that the appellants had land dispute with them that her husband had installed an engine in their common well, which infurated another co-sharer Chajju Singh and that at his behest, appellant Dharampal Singh had committed murders of her two sons. She stated that about 8 days prior to this incident, appellant Dharampal Singh armed with a rifle had also come to their house at about 12 O Clock in the night but at that time, she any how managed to pacify him, whereupon he went away. She stated that about 8 days prior to this incident, appellant Dharampal Singh armed with a rifle had also come to their house at about 12 O Clock in the night but at that time, she any how managed to pacify him, whereupon he went away. For that incident, they had lodged a report against him in the police station. In her cross examination, she told that since her two sons had been murdered, she was grief stricken and she remained unconcious for 3-4 days as such she did not remember whether the police had come to their house for 3-4 days or not. She told that Shribux Singh had a separate house but admitted that the chowk was being shared by them joingly. Except for the improvement in her statement regarding the alleged exhortations made by appellant Jaivir Singh to Dharampal, she has stuck to her police statement. She has been cross examined at length but her testimony hs remained unshaken and unshattered in respect of the overtact of Dharampal Singh. In our considered opinion, her presence at the time of the alleged incident was most natural and she is a reliable witness, so far as the overt act attributed to appellant Dharampal is concerned. However, for the alleged exhortation made by appellant Jaivir Singh, we do not place any reliance on her statement. The learned trial Judge has conveniently ignored the material improvement made by her during trial alleging exhortations made by Jaivir Singh. (40). PW 3 Jai Singh is the brother of deceased Narsingh and Hari Singh and the informant. He deposed that at the time of the incident, at about 7-7.30 P.M. his brother Ganga Singh, sister Saroj, Vidhya Devi and mother Chandra Bai were taking their meals in the chowk of their house. Suddenly somebody knocked the doors of `Baithak. They heard the voice of Dharampal Singh, who was shouting, ``Baahar Nikalo, Mein Maroonga. Since the doors of `Baithak were bolted from inside, app- ellant Dharampal Singh entered into the chowk from the main gate and he was armed with rifle. His brother Narsingh after taking dinner was drinking water on the side of `Parinda and at that time, appellant Jaivir Singh exhorted Dharampal Singh to shoot Narsingh. Thereupon, appellant Dharampal Singh fired from the rifle and caused injuries to Narsingh on his chest, who cried and fell down. His brother Narsingh after taking dinner was drinking water on the side of `Parinda and at that time, appellant Jaivir Singh exhorted Dharampal Singh to shoot Narsingh. Thereupon, appellant Dharampal Singh fired from the rifle and caused injuries to Narsingh on his chest, who cried and fell down. Jaivir Singh then told Dharampal Singh that two more brothers have remained alive and that they should also be finished. Jai Singh stated that Dharampal Singh inserted the barrel of the rifle into the ``Jangla (window having iron bars) of their room but they hided themselves inside their room. Thereafter the appellants went away hurling abuses. He stated that sometime thereafter Munshi Singh, Sanwant Singh & Har- nath Singh came there and they informed that the appellants had shot dead Hari Singh near Dharamshala. He told that Narsingh, who was alive at that time, was bleeding profusely, that he asked his neighbour Ashok and uncle Harnath Singh to bring a Maruti Car but the owner thereof refused to oblige them and thereupon they carried, Narsingh in a camel cart for Bassai but the latter breathed his last in the way. He further told that he alongwith Ganga Singh had also gone to Dharamshala and saw that Hari Singh was also lying there dead. He stated that after Narsingh had succumbed to his injuries, he brought back his dead body to his house, where he got written report Ex.P.1 scribed by his brother Ganga Singh and lodged the same at police station Khetri, which is situated at a distance of about 20 kms. He has pro- ved written report Ex.P.1, FIR Ex.P.2 and site plans Ex.P.3 & P.4. He admitted that at the time of scribing the report Ex.P.1. Harnath Singh was not present there. He deposed that at the time of incident Ganga Singh, Vimlesh and Jaivir Singh were present in the house and he had asked Ganga Singh to mention their names. He, however, admitted that their names were not mentioned in the written report Ex.P.1. He stated that appellant Dharampal Singh had fired towards Narsingh from a distance of about 6-7 ft., that the police had reached their village in the night around 3 A.M. and at that time, PWs Harnath Singh, Munshi Singh and Sanwat Singh were not present there. He, however, admitted that their names were not mentioned in the written report Ex.P.1. He stated that appellant Dharampal Singh had fired towards Narsingh from a distance of about 6-7 ft., that the police had reached their village in the night around 3 A.M. and at that time, PWs Harnath Singh, Munshi Singh and Sanwat Singh were not present there. The police had stayed in the village for about 1 or 2 hours and then again had come around 6 A.M. next day and remained in the village upto 3 P.M. He told that the police inspected the places of occurrence, prepared inquest reports, got post mortems of the dead bodies conducted by the doctor and also interrogated their family members. He admitted that in the written report Ex.P.1, it has not been mentioned that appellant Jaivir Singh had asked abetted or exhorted appellant Dharampal Singh to gun down Narsingh. He has failed to give any satisfac- tory explanation for this material omission. Similarly, he has failed to give any plausible explanation as to why this fact was also not mentioned in written report Ex.P.1 that Jaivir had also told Dharampal Singh that two of their brothers have remained alive and that they should also be finished. This witness in his police statement Ex.D.3 dated 7.12.98, also did not state that Jaivir Singh had exhorted Dharampal Singh to shoot Narsingh, and his two other brothers, and for this material omission, he has also miserably failed to give any satisfactory explanation. Thus, it is abundantly apparent that this witness has tried to materially improve his statement during trial regarding alleged exhortation made by appellant Jaivir Singh. (41). PW3 Jai Singh admitted that two rooms of Shribux Singh are also situated nearby his house, wherein the appellants have a right of way through the chowk. He further admitted that the doors of rooms of Shribux Singh open in this chowk. He deposed that the ladies of his family were cooking food on the `chulaha situated in the chowk. He specifically and firmly stated that he had seen appellant Dharam- pal Singh firing a gun shot from the rifle and causing injuries to Narsingh from his room, which opens in the chowk. He stated that the wall of `Parinda was stained with blood and the blood of Narsingh was also splashed on the floor (Aangan). He specifically and firmly stated that he had seen appellant Dharam- pal Singh firing a gun shot from the rifle and causing injuries to Narsingh from his room, which opens in the chowk. He stated that the wall of `Parinda was stained with blood and the blood of Narsingh was also splashed on the floor (Aangan). Despite searching cross examination his testimony has remained consistent and unshattered, so far as the overt act of appellant Dharampal Singh is concerned, but his statement regarding the alleged exhortation made by appellant Jaivir Singh to Dharampal does not appear to be reliable, because such an important fact neither finds mention in his report Ex.P.1 nor in his police statement. (42). PW4 Ganga Singh aged 24 years is another brother of the deceased. He has fully corroborated testimony of PW1 Maman Singh, Vidhya Devi PW2, Jai Singh PW3, Chandra Bai PW10 and other eye witnesses. He stated that appellant Dharampal had fired his gun and caused injuries on the chest of Narsingh, who was standing near the `Parinda in their chowk. The presence of this witness at the time of the incident was quite natural, which stands well established by the testimony of all eye witnesses. Since his two young brothers had been murdered, apparently he was grief stricken, while scribing written report Ex.P.1, he even forgot to mention his name as also names of his wife PW8 Krishna & Jai Singhs wife Vimlesh in Ex.P.1. This manifestly reflects his perplexed state of mind. Therefore, non mention of their names in report Ex.P.1 is not fatal to the prosecution. He admitted that civil, criminal & revenue cases were pending between his father and Shri Bux and the appellants even prior to this incident. (43). PW6 Kumari Saroj aged 16 years, PW 7 Smt. Vimlesh w/o Jai Singh and PW 8 Smt. Krishna have also deposed likewise and fully corroborated the sworn testimony of PW1, PW4, PW3 and PW10. They have specifically stated that appellant Dharampal Singh had fired a gun shot and caused injuries on the chest of Nar- singh, who died while being taken to the hospital in the way. These witnesses have also stated that appellant Jaivir Singh had exhorted Dharampal Singh but they have failed to give any satisfactory explanation as to why in their respective police statements, they did not mention this material fact. These witnesses have also stated that appellant Jaivir Singh had exhorted Dharampal Singh but they have failed to give any satisfactory explanation as to why in their respective police statements, they did not mention this material fact. They have further stated that the appellants bore animosity with them, due to installation of an engine by Maman Singh in their common well. These witnesses in most unambiguous and clear terms have also deposed that due to murders of Narsingh & Harisingh, they were grief stricken. The presence of these eye witnesses, who admittedly are the family members of Maman Singh and his deceased sons at the place of incident in the chowk of their house, is quite natural. No suggestion was put to these witnesses during their statements that they were not present at the time and place of incident. They have also fared the test of cross examination valiantly so far as the overt-act of appellant Dharampal Singh is concerned. (44). As regards the alleged exhortation made by appellant Jaivir Singh, we feel that they have made material improvement in their statements during trial since no such act of exhortation was attributed to appellant Jaivir Singh even in the F.I.R. and their police statements. In our considered opinion, the prosecution case that appellant Jaivir Singh had exhorted/abetted Dharampal Singh to shoot Narsingh or his brothers, cannot be taken to be true, firstly because Jaivir Singh was admittedly unarmed, secondly, no overtact was attributed to him in the FIR and even during investigation either for the murder of Hari Singh near Dharamshala or the murder of Narsingh in the chowk; thirdly the appellants had a right of way from the chowk for going to their rooms situated in the same chowk. (45). PW 5 Dr. NS Gill, who conducted medico-legal autopsies of deceased Narsingh and Hari Singh has proved post mortem reports Ex. P.7 & P.8 respectively and stated that the deceased had sustained fire arm injuries, which were sufficient in the ordinary course of nature to cause their deaths. (46). PW 11 Ashok Singh, whose house is situated near the house of Maman Singh, deposed that at the time of the alleged incident, he was seeing T.V. programme alongwith other neighbours; that he heard the noise and came out and that there was a hue and cry emanating from the house of Maman Singh. (46). PW 11 Ashok Singh, whose house is situated near the house of Maman Singh, deposed that at the time of the alleged incident, he was seeing T.V. programme alongwith other neighbours; that he heard the noise and came out and that there was a hue and cry emanating from the house of Maman Singh. Thereupon, he went there and saw that Narsingh was lying injured and his family members were standing there. Thus he reached inside the chowk of Maman Singh just after the incident. He told that he went to arrange for a Maruti car but could not get the same. He was also declared hostile by the prosecution. (47). PW 12 Dharampal Singh, motbir of the site plans Ex. P.3 & P.4, has also been declared hostile as he stated that those site plans were not prepared in his presence. However, he admitted that he had willingly put his signatures thereon. This witness, therefore, does not render substantial assistance to the prosecution. (48). PW15 Chandra Singh constable is the carrier, who on 8.1.1990 had taken seven sealed packets to the State Forensic Science Laboratory from the SHO PS Khetri and deposited those packets in the F.S.L., vide FSL receipt Ex. P.15. PW 16 Phool Chand Pareek, Head Mohrir, Incharge Malkhana PS Khetri has proved malkhana registers entries Ex. P.16. He stated that the SHO handed over him eight seal- ed packets marked A to H, which he had deposited in the Malkhana. He has also stated that on 8.1.1990 he had handed over seven sealed packets to Chandra Singh constable for depositing those in the F.S.L. Again on 2.6.90, PW 17 Sultan Singh handed over him a sealed packet containing rifle 7.62 mm marked C1 and another sealed packet containing two bandoleers having 66 live & 34 empty cartridges mar- ked A1, which he had deposited in Malkhana vide Malkhana entry Ex. P.18. He told that he had handed over those, two sealed packets to PW 19 Vikram Lal Constable, who in turn deposited those in the F.S.L. (49). PW 17 Sultan Singh SHO PS Khetri, who conducted initial investigation in this case from 4.12.1989 till morning 7.12.89, deposed that on the report Ex. P.1, submitted by PW 3 Jai Singh he drew F.I.R. Ex. P.2 and registered the crime. He rushed to the spot and prepared site plans Ex. P.3 & P.4. PW 17 Sultan Singh SHO PS Khetri, who conducted initial investigation in this case from 4.12.1989 till morning 7.12.89, deposed that on the report Ex. P.1, submitted by PW 3 Jai Singh he drew F.I.R. Ex. P.2 and registered the crime. He rushed to the spot and prepared site plans Ex. P.3 & P.4. He also prepared memoes of dead bodies of Narsingh & Hari Singh Ex. P.5 & P.6 respectively and their inquest reports Ex. P.19 & P. 18 respectively; that the dead body of Hari Singh was lying in the verandah of Dharamshala, from where he had seized and sealed the blood stai- ned soil and control sample vide seizure memoes Ex. P. 22 & P. 21 respectively. He also seized a bullet from the wall of the verandah of Dharamshala vide seizure memo Ex. P.23 and the blood stained garments of Hari Singh vide seizure memo Ex. P.20. He deposed that he found an empty cartridge and pieces of lead bullet lying in the chowk and seized those vide seizure memo Ex. P. 27. He also lifted sam- ple of blood stained and control sample of soil and prepared seizure memo Ex. P. 25 & 26 and blood stained garments of Narsingh vide seizure memo Ex. P.24. He told that he had sealed the packets of aforesaid articles and deposited them in Malkhana of the police station, which were later on sent to the FSL. He admitted that prior to the incident, the complainant party and accused party had civil, criminal and revenue litigation, which were pending. He also admitted that the chowk, where Narsingh was murdered was joint and that the houses of accused party and complainant party were situated there. He deposed that the garments of Narsingh and Hari Singh had corresponding holes at the site of injuries sustained by them. He also noticed the bullet marks on the wall of ``Parinda, which he had mentioned in the site plan. He deposed that he could not record the statements of Jai Singh, Ganga Singh, Saroj, Vimlesh, Krishna, Maman Singh and Chandra Bai as all of them were grief stricken due to murders of two young members of their family. He refuted the suggestion that he did not record their statements though they were willing and ready to give their statements. He deposed that he could not record the statements of Jai Singh, Ganga Singh, Saroj, Vimlesh, Krishna, Maman Singh and Chandra Bai as all of them were grief stricken due to murders of two young members of their family. He refuted the suggestion that he did not record their statements though they were willing and ready to give their statements. He stated that on the third day i.e. 7.12.88 the investigation of this case was taken up by PW 18 Gajanand Dy. SP. He also admitted that about 8 days prior to the incident on the complaint filed by complainant party, he after inquiry had filed a criminal complaint u/S. 107/116 Cr.P.C. against accused party in the court of SDM. (50). PW 18 Gajanand Dy SP deposed that he took the investigation of this case and on 7th and 9th December, 1989 recorded the statements of witnesses marked Ex. D. 1 to D. 9. He has proved FSL reports Ex. P. 29 and P. 30 and given details of investigation. (51). PW 19 Vikram Lal constable stated that on 23.6.90 he carried two sealed packets to the State FSL Jaipur and deposited those packets vide receipt Ex. P. 32. (52). It may be mentioned here that appellant Dharampal Singh was arrested on 1.6.90 vide memo Ex. P. 11 by Mool Chand ASI PS, Khetri from CRPF, 91 Battalion Bhatinda, where the latter had surrendered on the same day. Sarvjeet Singh, Inspector CRPF had produced on rifle 7.62 mm alongwith two bandoleers, which contained 66 live and 34 empty cartridges before Moolchand ASI, which the latter seized vide seizure memoes Ex. P. 9 & P. 10 and sealed those in two packets. The genuineness of the contents of the documents Ex. P.9, P. 10 & P. 11 was admitted by the learned counsel for the appellants before the trial Court. In such circumstances, the prosecution did not examine Mool Chand ASI & Sarvjeet Singh and non- examination of these witnesses is not at all fatal to the prosecution. (53). DW 1 Ashok Kumar Jain deposed that on 1.12.89 appellant Jaivir Singh was appointed as Store Keeper in the firm M/s Padma Automobile Private Ltd., New Delhi that on 3.12.1989 right from 9 A.M. to 5.30 P.M. appellant Jaivir Singh was on duty in the firm. He proved attendance register Ex. D. 10 but, in cross examination his testimony was completely shattered. He proved attendance register Ex. D. 10 but, in cross examination his testimony was completely shattered. The learned trial Judge has rightly disbelieved this witness and held that plea of alibi taken by appellant Jaivir Singh is false and concocted. (54). Now we proceed to decide various contentions submitted by Shri Bajwa. From the evidence recorded in this case, it is firmly established that the murders of Harisingh & Narsingh were committed in the evening of 3.12.89 in quick succession. The first place of incident namely, Dharamshala is situated just at a distance of about 100 paces from the house of PW 1 Maman Singh, where the second incident of pumping a bullet on the chest of Narsingh causing fatal injuries had taken place. From the testimony of eye witnesses PWs 1 to 4, 6 to 8 and 10 and the statements of investigating officers PW 17 Sultan Singh SHO and PW 18 Gajanand Sharma Dy SP as also suggestions put to these prosecution witnesses on behalf of the appellants, it stands well proved that prior to the incident, appellant Dharampal Singh and his family members had disputes pertaining to agricultural land and installation of an engine for lifting water from their common well by Maman Singh and that civil, revenue, and criminal cases were pending between them. From the statements of PW 10 Chandra Bai, PW 1 Maman Singh and other eye witnesses, it has also been amply proved that about 7-8 days prior to this incident, appellant Dharampal Singh, who was armed with a rifle, had come to the house of the complainant party and threatened to kill Jai Singh and his brothers, for which Jai Singh had lodged a report at police station Khetri and after inquiry, as per statement of PW 17 Sultan Singh, a criminal complaint under Section 107 read with S. 116 Cr.P.C. was filed by the police against Dharampal Singh and others. Even appellant Dharampal in his statement u/S. 313 Cr.P.C. has admitted that the prosecution witnesses deposed against him due to litigations pending between them. Thus, appellant Dharampal Singh, who was recruited as a sepoy in the C.R.P.F. had litigation and he bore animosity with Maman Singh and his sons and that he wanted to liquidate them. On the ill fated evening, Hari Singh & Narsingh were shot dead near Dharamshala and in the chowk of Maman Singhs house respectively. (55). Thus, appellant Dharampal Singh, who was recruited as a sepoy in the C.R.P.F. had litigation and he bore animosity with Maman Singh and his sons and that he wanted to liquidate them. On the ill fated evening, Hari Singh & Narsingh were shot dead near Dharamshala and in the chowk of Maman Singhs house respectively. (55). Section 218 Cr.P.C. deals with joinder of charges and mandates that for every distinct offence, of which any person is accused, there shall be a separate charge, and for every such charge, there shall be a separate trial. However, Section 220 Cr.P.C. proclaims that if in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence. In the instant case, as per the prosecution case, the alleged act of Dharampal Singh appellant for committing murder of Hari Singh near Dharamshala and then committing murder of Narsingh in the chowk of Maman Singhs house, which are situated nearby, were so connected together in time and place and motive that they clearly formed the same transaction. The appellants have been charged separately for the murders of Hari Singh and Narsingh. The appellants also knew the charges levelled against them and faced trial knowing fully about the indictment levelled against them. No prejudice was either contended or proved to have been caused to the appellants during trial. In such circumstances, we do not find any force in the argument advan- ced by Shri Bajwa that the provisions of Section 218, Cr.P.C. have been violated or it is a case of misjoinder of trial or that any prejudice has been caused to the appellants. Hence on this ground, the trial does not stand vitiated. In re. offence u/S. 459, IPC (56). PW 1 Maman Singh, PW 3 Jai Singh, PW 8 Krishna Devi & PW 10 Chandra Bai have in most unequi-vocal, unambiguous and clear terms admitted that the appellants have a right of way to go to their house through the chowk, where the murder of Narsingh was committed. They have also admitted that the doors of two rooms of Shribux Singh, the father of the appellants, open in this chowk. They have also admitted that the doors of two rooms of Shribux Singh, the father of the appellants, open in this chowk. Thus, there is voluminous evidence on record to show that the appellants had a right to go th- rough the said chowk, where Maman Singh had put a main gate. Hence no case of house trespassing is made out. The main ingredient for lurking house trespass is that the person, who is said to have committed trespass must have taken precautions to conceal such house-trespass from some person, who has a right to exclude or eject the trespasser from the building, tent or vessel, which is the subject of the trespass. In the instant case, even as per the prosecution case, the appellants did not take any precaution to conceal their presence. On the other hand, they had a right to go to the joint chowk in question, where the incident of murder of Narsingh had occurred. It is also not a case of house breaking by night. Section 459, IPC says that whoever, whilst committing lurking house-trespass or house breaking, causes grievous hurt to any person or attempts to cause death or grievous hurt to any person, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Therefore, from the prosecution evidence on record, main ingredients constituting an offence u/S. 459, IPC, have not been made out in this case. (57). Section 460, IPC lays down that if at the time of committing lurking house-trespass by night or house breaking by night, any person guilty of such offence voluntarily causes or attempts to cause death or grievous hurt to any person, then every person jointly concerned in committing such lurking house-trespass by night or house-breaking by night, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Admittedly, the learned trial Judge did not frame any charge against the appellants for the offence under Section 460, IPC. Admittedly, the learned trial Judge did not frame any charge against the appellants for the offence under Section 460, IPC. Moreover, the chowk where the murder of Narsingh was committed, was not exclusively owned and possessed by the complainant party and that the appellants also had a right of way through the said chowk and they did not take any precaution to conceal the house trespass from the inmates of the house. Hence in our considered opinion, the appellants can neither be convicted for offence under Section 459, IPC nor under Section 460, IPC. The learned trial Judge has, therefore, committed illegality of fact as also of the law in convicting appellant Dharampal Singh for offences u/S. 459 IPC and appellant Jaivir Singh u/S. 459 read with Section 34, IPC. As a matter of fact, charge u/S. 459 IPC read with S. 34 IPC, has also been wrongly framed against appellant Jaivir Singh. Therefore, conviction & sentence of the appellants u/Ss. 459, & 459/34 IPC deserve to be quashed. In re. Common Intention (58). In written report Ex. P.1 and F.I.R. Ex. P. 2 neither any overtact nor active participation of appellant Jaivir Singh in respect of the murders of Hari Singh & Narsingh has been assigned. Even in police statements of the eye witnesses, (Ex.D.1 to D.9), which were recorded on 7.12.89 and 9.12.89, none of these witnesses attri- buted any overt act to Jaivir Singh either for abetting or exhorting appellant Dharampal Singh to open fire or shoot Hari Singh or Narsingh. On the other hand, it was the case of the prosecution during investigation that after Dharampal Singh had fired a gun shot and caused injuries to Narsingh, appellant Jaivir Singh exclaimed that two other brothers have remained alive and that they should be finished/elimi- nated. Thus, allegation against appellant Jaivir Singh was that he had exhorted or abetted appellant Dharampal Singh to kill Ganga Singh & Jai Singh but, all the eye witnesses have clearly stated that appellant Dharampal Singh did not fire aiming at Jai Singh or Ganga Singh or caused injuries to them. Moreover, no injuring was caused by firearm to any of these eye witnesses. Admittedly appellant Jaivir Singh was unarmed. Moreover, no injuring was caused by firearm to any of these eye witnesses. Admittedly appellant Jaivir Singh was unarmed. The prosecution has not adduced even a fringe of evidence, from which it can be gathered or inferred that appellant Jaivir Singh had a pre-meeting of mind with appellant Dharampal Singh or he had common intention to commit murders of Hari Singh or Narsingh and that in pursuance thereof, appellant Dharampal Singh had fired from his rifle and committed their murders. Therefore, the mere fact that Jaivir Singh came alongwith Dharampal Singh to the chowk, and left the place of incident with him, is, itself not sufficient to conclusively prove that he had a common intention with appellant Dharampal Singh for committing murder of Hari Singh or Narsingh especially when he had a right of way or to stay in the chowk, which was jointly used by the appellants and the complainant party. (59). In Gajjan Singh vs. State of Punjab (1), the charge under Section 302/149 IPC was framed against eight accused persons for committing murder in prosecution of common object. After trial, accused B was convicted for murder of A by a single rifle shot and accused G was convicted u/s. 307 for attempting to murder D by a single rifle shot and he was also convicted u/S. 302/34 IPC for murder of A, whereas all other accused persons were acquitted. Their conviction and sentences were maintained by the High Court of Punjab. In the S.L.P. filed by accused appellant Gajjan Singh, the Apex Court held that mere fact that accused B & G came together armed with rifles was not sufficient to indicate that they had come having their common intention to commit the murder and that on the evidence and the facts, it was not possible to draw an inference that accused G had shared common intention with B for the murder of A. It was further held that it may be that he had such a common intention but it was difficult to file the gap between ``may and ``must to say that ``G must have shared common intention with B for causing death of A. The Apex Court, therefore, set aside the conviction and sentence of G under Section 302/149 IPC. Similar are the facts of the case on hand. (60). Similar are the facts of the case on hand. (60). The learned Public Prosecutor placed reliance is State of U.P. vs. Iftikhar Khan (2), wherein it has been held that in order to invoke Section 34 IPC. against the accused, prior concert or a pre-arranged plan has to be established and though common intention has to be inferred from his act, or conduct and other relevant circumstances, it is not necessary that any overt act must have been done by any particular accused. It is enough if the criminal act has been done by one of the accused in furtherance of the common intention. There is no dispute about this well crystalised principles of law. But it is needless to mention that common intention pre-supposes prior concert. It requires pre-arranged plan because before a person can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all. In other words, there must have been prior meeting of minds. The plan need not be elaborate nor is a long interval of time required. It could arise or be formed suddenly, as for exam- ple when one man calls on bystanders to help him to kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault. There is then the necessary meeting of the minds. There is a pre-arranged plan however hastily formed and rudely conceived. But, for pre- arrangement there must be a premeditated concert. In the instant case, the alleged eye witnesses of Hari Singhs murder namely, PW 13 Munshi Singh and PW 14 Sanwat Singh, who were named in the FIR, have stated that they were not present at the time of the alleged incident and they have been declared hostile. PW 9 Harnath Singhs name was not mentioned in the FIR. Though names of Munshi Singh and Sanwat Singh were mentioned therein. Harnath Singhs testimony has not been corroborated by any other eye witnesses. He is real uncle of the deceased and his presence at the time of the alleged occurrence has been held to be suspicious. He is not at all a reliable witness. Had appellant Jaivir Singh any common intention with appellant Dharampal Singh to commit murder of Hari Singh, he would not have gone empty handed. He is real uncle of the deceased and his presence at the time of the alleged occurrence has been held to be suspicious. He is not at all a reliable witness. Had appellant Jaivir Singh any common intention with appellant Dharampal Singh to commit murder of Hari Singh, he would not have gone empty handed. No active participation was alleged against him nor any overt-act was attributed to him regarding the murder of Narsingh either in the FIR or in the police statements of the eye witnesses. Therefore, in such circumstances, there is no evidence worth the name, from which it can be reasonably inferred that he had a pre-meeting of mind or pre-concert with appellant Dharampal Singh and that in furtherance of such common intention, Dha- rampal Singh had fired a gun shot and committed murder of Narsingh. Hence, Iftikhar Khans case renders little assistance to the prosecution. (61). The next case, on which the learned Public Prosecutor has placed reliance, is Rai Saheb vs. State of Haryana (3), wherein accused persons faced trial for offences u/Ss. 302/149, 148, IPC, & u/Ss. 25 & 27 of the Arms Act, and 6 of the TADA Act. The Designated Court convicted all of them under Section 302/149, IPC and sentenced to undergo life imprisonment. They were also convicted under Section 6 of the TADA Act. The appellant challenged their conviction. In that case, it was established that the accused persons came together and threw the deceased from the bus surrounding him and after firing 2 or 3 gunshots, ran away. It was held that those circumstances were sufficient to attract S. 149 or even S. 34. The facts of Rai Sahebs case (supra) are, therefore, clearly poles apart with the facts of the case on hand. Here the prosecution has miserably failed to prove beyond reasonable doubt that appellant Dharampal Singh had committed murder of Hari Singh near Dharamshala by firing gun shot, and that appellant Jaivir Singh had accompanied him or abetted/exhorted him for committing the murder of Narsingh. Here the prosecution has miserably failed to prove beyond reasonable doubt that appellant Dharampal Singh had committed murder of Hari Singh near Dharamshala by firing gun shot, and that appellant Jaivir Singh had accompanied him or abetted/exhorted him for committing the murder of Narsingh. In such circumstances, it cannot be said that since appellant Jaivir Singh after murder of Hari Singh had further accompanied appellant Dharampal Singh and went inside the chowk of Maman Singhs house and, therefore, it should be inferred that he had a pre-meeting of mind and common intention with Dharampal Singh and that in further rance of such common intention, Dharampal Singh had shot dead Narsingh in the chowk. In our considered opinion, from the facts and circumstances of this case and the evidence adduced on record, it can not reasonably be inferred that the appellant Jaivir Singh had a common intention with Dharampal Singh for committing murder of Hari Singh or Nar Singh or that he had actively participated in commission of their murders or even exhorted or abetted Dharampal Singh to commit those murders. Moreover, no charge was framed against Jaivir Singh for abetting or exhorting appellant Dharampal Singh to commit murder of Hari Singh or Narsingh. Hence for the aforesaid reasons, the learned trial Judge has misread the evidence against appellant Jaivir Singh and has committed patent error of fact as well as of law in convicting and sentencing appellant Jaivir Singh for offence under Section 302/34 IPC and, therefore, his conviction and sentence for the said offence cannot be sustained. (62). It is true that the eye witnesses PW 1 to PW 4, PW 6 to PW 8 and PW 10 are close relatives being father, mother, brothers, sister and sisters-in-laws of the deceased persons. But, this fact by itself, is not sufficient to discard their evidence straight away unless it is proved that it suffers from serious infirmities, which raises considerable doubt in the mind of the Court. Minor discrepancies or insignificant omissions in the evidence during trial and those made before the police, which do not affect the substratum of the prosecution story would not be sufficient to discard the testimony of such relative witnesses. Minor discrepancies or insignificant omissions in the evidence during trial and those made before the police, which do not affect the substratum of the prosecution story would not be sufficient to discard the testimony of such relative witnesses. On the other hand, the fact that the witnesses are close relatives of the deceased is all the more a good ground for believing their testimony because they are not expected to leave the real culprit and implicate an innocent person. (63). In State of Rajasthan vs. Kalki and Anr. (4), a DB of this Court set aside the order of conviction and sentence passed by the trial Judge on the ground that the sole eye witness, who was widow of the deceased, was a highly interested witness, that there was enmity between the deceased and the accused on account of dispute about their agricultural land and that there were material discrepancies in her statement. The Apex Court pointed out that there is distinction between ``nat- ural witness and ``interested witness and that a ``relative witness is not equivalent to ``interested witness. It was held that the widow of the deceased was most natural witness, who was present in the hut with the deceased, where the latter was murdered. The Apex Court further observed that ofcourse, statements of relative witnesses should be closely, critically and carefully examined. In the instant case, the presence of PWs 1 to 4, 6 to 8 and 10 in their house was most natural. They are close relatives of the deceased Narsingh. Their statements have been closely scanned, carefully scrutinised and critically assessed by us and we are of the considered opinion that so far as their evidence against appellant Dharampal Singh for committing murder of Narsingh is concerned, their testimony is worthy of credence. The prosecution case in respect of murder of Narsingh from the very beginning i.e. from the time of the lodging the FIR, during investigation and till the conclusion of the trial has been quite straight forward consistent and trustworthy. All these witnesses have in one voice deposed that appellant Dharampal Singh after coming inside the chowk had fired from his rifle towards Narsingh, who was stan- ding near the ``Parinda and caused injuries on his chest, which is a vital part and which proved fatal resulting into his death. All these witnesses have in one voice deposed that appellant Dharampal Singh after coming inside the chowk had fired from his rifle towards Narsingh, who was stan- ding near the ``Parinda and caused injuries on his chest, which is a vital part and which proved fatal resulting into his death. We also do not find any variance or contradiction in the ocular evidence of these witnesses and the testimony of PW 5 Dr. NS Gill, who has stated that the direction of the entrance would on the chest of Narsingh was upward. All the prosecution witnesses have stated that appellant Dharampal had fired gun shot to Narsingh from a distance of about 5-7 ft. No question has been elicited in the cross examination of these witnesses about the heights of Narsingh and appellant Dharampal Singh. From the eye witnesses it has also not been elicited that the level of Katcha floor (Aangan) where appellant Dharampal Singh was standing and where deceased Narsingh was standing near the `Parinda was of the same altitude or not. Therefore, in the absence of these basic parameters, we do not find any force in the contention of Shri Bajwa that the injuries sustained by Narsingh could have been caused only when Dharampal Singh had fired in a sitting position and thus, there is material variance between statements of the eye witnesses and the medical evidence. PW 5 Dr. NS Gill has specifi- cally stated that the entrance and the exit wounds sustained by the Narsingh, which are incorporated in the post mortem report Ex. P.7, were caused by firearm and that those were ante mortem in nature and sufficient in the ordinary course of nature to cause his death. (64). The murder of Narsingh was committed in the chowk of Maman Singhs house at about 7 P.M. Hence there was no possibility of any person from the locality or vicinity to have come inside the house to witness that incident. The prosecution examined PW 11 Ashok Singh, who is neighbour of the locality, but he had reached place of the occurrence after the murder of Narsingh had already been committed. He has also been declared hostile by the prosecution. No question was put to the investigating officer to establish that some independent persons from the locality were also present at that time of murder of Narsingh. He has also been declared hostile by the prosecution. No question was put to the investigating officer to establish that some independent persons from the locality were also present at that time of murder of Narsingh. Therefore, it cannot be held that the prosecution has deliberately withheld independent witnesses of the locality in this case. (65). A perusal of arrest memo Ex. P. 11 of Dharampal, seizure memoes of rifle and live & empty cartridges Ex. P. 9 & P. 10, respectively clearly indicates that the learned counsel for appellants had admitted the genuineness of those documents before the trial Court and their formal proof was dispensed with under Section 294 (3) Cr.P.C. In such circumstances, it was not necessary for the prosecution to have examined either Mool Chand ASI, who had arrested Dharampal Singh and who had seized rifle and the cartridges or Sarvjeet Singh Inspector of C.R.P.F. who had produced the said rifle and cartridges on 1.6.90 to Mool Chand. Therefore, non-production of these two witnesses is not at all fatal to the prosecution. (66). It is true that appellant Dharampal did not volunteer any information un- der Section 27 of the Evidence Act in respect of 7.62 mm rifle and 66 live and 34 empty cartridges nor got those articles recovered at his instance. On the other hand, the said rifle and the cartridges with bandoleers were produced by Sarvjeet Singh to Mool Chand ASI alleging that those were entrusted to appellant Dharampal Singh. (67). In Bahadul vs. State of Orissa (5), ``Tongia weapon of offence was mere- ly taken out by accused from beneath his cot and handed over by him to the police without any disclosure statement u/S. 27 of the Evidence Act; that place was also accessible to all, it was held that such a recovery was barred by Section 27 of the Evidence Act and that the same did not connect the accused with the crime. (68). In State of U.P. vs. Jageshwar and Ors. (6), the gun was alleged to have been recovered in pursuance of the statement made by the accused. The evidence of the ballistic expert showed that the empty shells or cartridges found at the scene of offence were fired from that gun. However, that gun was not recovered from the possession of the accused but from some other person, who was not examined by the prosecution. The evidence of the ballistic expert showed that the empty shells or cartridges found at the scene of offence were fired from that gun. However, that gun was not recovered from the possession of the accused but from some other person, who was not examined by the prosecution. It was held that the recovery of the gun coupled with the ballist expert report could have been very good evidence to connect the accused with the crime but since the police did not recover the gun from the accused nor did he make any statement that he had concealed the same at the spot, which he had pointed out, nor the person from whose possession the gun was recovered, was examined, and in such circumstances, there was no legal evidence to connect the accused with that gun. In the case on hand, admittedly, appellant Dharampal Singh did not volunteer and information under Section 27 of the Evidence Act nor be got recovered the rifle and the cartridges at his instance, nor those were recovered from his possession. On the other hand, the said rifle and live and empty cartridges were produced by Sarvjeet Singh Inspector of C.R.P.F., who has not been examined by the prosecution to prove that the said rifle and live & empty cartridges were handed over or entrusted to appellant Dharampal Singh or as to when those were returned or deposited by appellant Dharampal Singh. In such circumstances, the ballistic experts report Ex.P.31 to the effect that the said 7.62 mm rifle was a serviceable firearm and that the cartridges cases (which were alleged to have been recovered from the chowk of Maman Singhs house) had been fired from the said rifle, looses its significance. Hence, the seizure of the rifle and the live & empty cartridges as also recovery of the empty cartridges from the chowk of Maman Singhs house is worthless and the same does not render any assistance to the prosecution. (69). Hence, the seizure of the rifle and the live & empty cartridges as also recovery of the empty cartridges from the chowk of Maman Singhs house is worthless and the same does not render any assistance to the prosecution. (69). PW 17 Sultan Singh SHO, had conducted initial investigation from 4.12.89 to 7.12.89 and PW 18 Gajanand Sharma, thereafter conducted investigation, they have given satisfactory explanation for the delay in recording statements of the prosecution eye witnesses on 7.12.89 and 9.12.89 and on this ground, it cannot be held that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye witnesses to be introduced. On the other hand, in this case, the FIR was lodged promptly wherein sufficient details of the crime pertaining to the murder of Narsingh and names of eye witnesses were given. Ofcourse, since the FIR was lodged in hot haste and two real brothers of Jai Singh were murdered, the informant was in a perplexed state of mind, he forgot to mention name of his brother PW 4 Ganga Singh, who was the scribe of the written report Ex. P.1, and names of his wife Vimlesh as also PW 8 Krishna w/o Ganga Singh. The presence of these witnesses has been firmly established by the prosecution evidence on record. Therefore, the delay in recording statements under Section 161 Cr.P.C. of these witnesses is not at all a serious infirmity in this case and this fact does not cause any cloud of suspicion on the credibility of the entire warp and woof of the prosecution story. (70). The sealed packets of the blood stained soil lifted from the floor of the chowk, the blood stained garments of deceased Narsingh, were sent to the State F.S.L. and as per the report of the Serologist vide Ex.P.29 & P. 30, those articles were found to be stained with blood. This fact also corroborates the prosecution case. Moreover, as per the testimony of PW 5 Dr NS Gill and PW 17 Sultan Singh I.O., the Jersy (sweater), Baniyan, and the shirt which Narsingh was putting on at the time of the alleged incident, had holes caused by bullet at the corresponding places of the injuries on his body. This fact also finds mention in the seizure memo Ex. P. 24. This fact also finds mention in the seizure memo Ex. P. 24. This fact further corroborates the prosecution case and post mortem report Ex. P.7. (71). The conduct of Dharampal Singh, who immediately after the occurrence had absconded and even did not report on duty in his unit and was later on arrested as later as on 1.6.90 vide arrest memo Ex. P.11 is also a relevant circumstance pointing towards his guilt. (72). Therefore, in our considered opinion, the prosecution has successfully proved beyond reasonable doubt that appellant Dharampal Singh had intentionally and deliberately committed the murder of Narsingh by firing from the rifle causing fatal injuries on his vital part i.e. chest. Thus, the learned trial Judge has not committed any illegality either of fact or law in convicting him for offence under Section 302 IPC for committing the murder of Narsingh. Appellant Dharampal Singh has also been rightly convicted for the offence under Section 27 of the Arms Act. (73). Regarding the murder of Hari Singh, the evidence adduced by the prosecution on record is quite vague and unreliable and on the basis of unreliable and bald statement of PW 9 Harnath Singh, whose name also does not find mention in the FIR and whose testimony has not been corroborated by PWs Sanwat Singh and Munshi Singh, appellant Dharampal Singh cannot be held guilty for the offence under Sec. 302, IPC. Similarly, the prosecution has utterly failed to prove beyond reasonable doubt that appellant Jaivir Singh had common intention with appellant Dharampal Singh and that in furtherance of such common intention Dharampal Singh had committed murders of Narsingh or Hari Singh, and, therefore, the conviction & sentence of appellant Jaivir Singh for offence u/S. 302/34 deserve to be quashed. D.B.Criminal Appeal No. 155/95 In Re. Enhancement of sentence (74). It has not been conclusively proved beyond reasonable doubt that Dhar- ampal Singh had committed the murder of Hari Singh. Civil, Criminal and revenue cases were pending between the complainant party and accused party prior to the incident. PW 1 Maman Singh father of the deceased had installed an engine in the common well, wherein he and Shribux Singh, the father of the appellants had 1/4th common share. Thus we do not find any aggravating circumstance warranting for the exaction of the extreme penalty namely the capital punishment. PW 1 Maman Singh father of the deceased had installed an engine in the common well, wherein he and Shribux Singh, the father of the appellants had 1/4th common share. Thus we do not find any aggravating circumstance warranting for the exaction of the extreme penalty namely the capital punishment. To our mind, this is not such a rarest of the rare cases, wherein death penalty should be awarded to appellant Dharampal Singh. Therefore, the State appeal for enhancement of sen- tence deserves to be dismissed. (75). The net result of the above discussion is that (1) D.B. Cr. Appeal No. 155/95 State vs. Dharampal Singh and Anr. is hereby dismissed. (2) DB Criminal Appeal No. 463/93, Dharampal Singh and another vs. State is partly allowed and the convictions & sentence of appellant Dharampal Singh for offence u/s. 302, IPC for committing murder of Narsingh and for the offence u/S 27 of the Arms Act are hereby maintained. However appellant Dharampal Singh is acquitted for offences under Sections 459 & 302, IPC for committing the murder of Hari Singh by giving him benefit of doubt and his convictions & sentences for the said offence are hereby set aside. (3) Appellant Jaivir Singh is acquitted of offences u/Ss. 459, and 302/34 IPC for the murders of Hari Singh and Narsingh and his convictions & sentences are hereby set aside. Appellant Jaivir Singh, who is at present lodged in jail be released forthwith, if not required in any other case. The record of the trial court be sent back to the trial court.