JUDGMENT 1. - Since these two appeals arise Is arise out of the same judgment. those a re being disposed of by a common judgment. 2. Appellants (1) Maharaj Singh, (2) Ram Prasad, (3) Ram Swaroop and co-accused persons/ respondents (1) Hansa alias Hansram, (2) Mardan, (3) Bhanwar, (4) Ratti, (5) Shiv Singh and (6) Man Singh, faced trial for offences under Sections 148, 302 / 149, 307, 307/149, 324, 324/ 149, 323, 323/149, Indian Penal Code before the learned Additional Sessions Judge Hindaun City (District Sawai Madhopur), who by his judgment dated 11.6.1993 convicted accused-appellants as under : 1. Maharaj Singh - u /Section 302 Indian Penal Code - Life imprisonment with a fine of Rs. one lac, in default seven years' RI. 2. Ram Prasad - u/Section 307, Indian Penal Code- 4 years' RI with a fine of Rs. 5,000/-, in default further 1 year's RI. 3. Ram Swarup - u /Section 324 Indian Penal Code- Six months' RI. The learned trial Judge also directed that in case the amount of fine is realised, then fine of Rs. one lac be given to the legal representatives of deceased Gajraj Singh and Rs. 5,000/- be given to injured Ram Singh and Revati. 3. The learned Trial Judge acquitted afore- named accused-appellants and co-accused persons of other offences for which they were charged. Therefore, the State has filed Criminal Appeal No. 477/1993 against the acquittal of the said accused-respondents for the offences under Sections 148, 302/149, 307/149, 324/149, 323 and 323/149, Indian Penal Code. 4. The facts of the prosecution case as projected from the evidence on record are short and simple and can be summarised in a short compass. On 17.12.90 at about 2 p.m, PW 4 Shishram and his brother deceased Gajraj Singh were working in their field situated near Bhahbalpur, which is a hamlet of village Durgsee. It is alleged that appellants (i) Maharaj Singh armed with a 12 bore gun, (ii) Ram Prasad having a "Katta" (country-made pistol), (iii) Ramswarup having a "Dharia", and co-accused persons armed with lathis, came there. Appellant Maharaj Singh fired a shot from his gun. Thereupon, Shishram and deceased Gajraj Singh in order to save their lives, ran away towards their houses situated in village Bhahbalpur. Appellant Maharaj Singh fired a shot from his gun. Thereupon, Shishram and deceased Gajraj Singh in order to save their lives, ran away towards their houses situated in village Bhahbalpur. Appellants and co-accused persons chased and followed them, PW 4 Shishram climbed over a 'Patore' (roof made by placing stone slabs) of his uncle PW 5 Roop Singh. PW 7 Giri Raj, who after hearing the bang of the gun shot had come out of his house, seeing the appellants, also climbed over Roop Singh's patore. It is the case of the prosecution that deceased Gajraj Singh, PW 3 Revti, PW 1 Ram Singh, PW 12 Gyarsia, and PW 11 Sampat apprehending danger went inside the 'Patore' of Revti. At that point of 'time, PW 2 Prakash, another brother of deceased Gajraj Singh, who was grazing she-goats in the nearby forest, hearing the bang of the gun shot, came towards his house and on the way, he was belaboured by co-accused Hansa, Ratti and others by lathis. He raised an alarm and in a hid to save him, Revti, Ram Singh, Gyarsia, and Gajraj Singh came out of Revti's 'patore'. It is further case of the prosecution that appellant Maharaj Singh fired from his gun causing injuries on the face and other parts of the body of Gajraj Singh, who fell down and died instantaneously on the way outside Revti's 'patore'. Appellant Ram Prasad, also 'fired from his 'Katta' and caused injuries to PW 1 Ram Singh and PW 2 Revti. Appellant Ram Swarup dealt' Dharia' blow sand caused injuries to PW 12 Cyarsia. The assailants also caused injuries to PW 10 Smt. Janki, It is alleged that the said incident was also witnessed by PW 4 Shishram, PW 5 Roop Singh, PW 6 Kanhiya, PW 7 Giri Raj, PW 11 Ganpat, all residents of Bahvalpur, and PW 13 Malli and PW 19 Swarup Gujar, who had reached the place of occurrence from their village Nangal. 5. On the same day at about 4.30 p.m. PW 7Giri Raj lodged a written report Ex. P.3 at Pol ice Station Suroth, which is situated at a distance of 6 Kms. from the place of occurrence. PW 17 Roshan Singh, ASI, who at that time was incharge of the Police Station, drew a formal FIR Ex. P.4. 5. On the same day at about 4.30 p.m. PW 7Giri Raj lodged a written report Ex. P.3 at Pol ice Station Suroth, which is situated at a distance of 6 Kms. from the place of occurrence. PW 17 Roshan Singh, ASI, who at that time was incharge of the Police Station, drew a formal FIR Ex. P.4. It may be mentioned here that in the written report Giriraj had also named Mushi, Giriraj, Lakhi and Mahendra Singh as assailants, besides afore-named appellants and co-accused persons. 6. On the same day, PW 17 Roshan Singh, who conducted the initial investigation, reached the place of incident at about 5.15 p.m. He prepared site plan Ex. P.1, conducted the autopsy and prepared inquest report Ex. P.S. He seized and sealed blood stained so and control sample of earth from the place of occurrence, where the dead body of Gajraj Singh was lying vide seizure memo Ex. P.6. He also found four empty cartridges of 12 bore gun lying on the place of incident,which he seized and sealed vide seizure memo Ex. P.7. 7. In the evening of 17.2.90, PW 16 Dr. Narain Lal examined injured, (i) Ram Singh, (ii) Revti, (iii) Janki, (iv) Gyarsia, and (v) Prakash and prepared their medico-legal reports Ex. P.12, P.14, P.16, P.17 and P.18, respectively. 8. On 18.12.90 at 10.30 a.m. PW 16 Dr. Narain Lal conducted medico-legal autopsy of deceased Gajraj Singh and prepared postmortem report Ex. P.19. He found following injuries: Punctured wound with lacerated contusion inverted margin 3/4" x 1/2". For determining the depth of the wound, he inserted probe, which reached upto cranial cavity on the left infra orbital region, which was surrounded by circular punctured wounds of 1 mm diameter on the front of upper lip, nose, both right and left orbit and infra and supra orbital regions, destroying both the eve balls, margins of the wounds were inverted, lacerated. No tattooing, blackening or scorching was present. Hair not singed. The area measured 41/2 inches transversely and 4" vertically. There was a fracture of left maxilla, left orbital plate, right orbital plate and multiple teeth in upper jaw. One disc like black coloured washer was found firmly impacted in the left naso labial region. All the above multiple wounds, about 40 in number, %-, ere suggestive of wounds of entry of pellets of j fire arm. One irregular shaped pellet was recovered. One disc like black coloured washer was found firmly impacted in the left naso labial region. All the above multiple wounds, about 40 in number, %-, ere suggestive of wounds of entry of pellets of j fire arm. One irregular shaped pellet was recovered. There were multiple sieve like punctured wounds of different sizes varying from 2 mm diameter to 3 mm diameter over the right posterior parietal and occipital region with fracture of right parietal and right side of occipital bones. Margins of these wounds were irregular and everted,suggestive of entrance of pellets of a firearm. One cylindrical object, opening at both ends containing one black disc like washer was also found in the cranial cavity in the brain matter. 9. The doctor opined that all those injuries were antemortem in nature, caused by firearm, and that the cause of death was extensive fire arm injuries to the brain and that the death had occurred within 24 hours from the time of postmortem examination. 10. As per M.L.R. Ex. P.12, Dr. Narain Lal found the following injuries on the person of Ram Singh : 1. Punctured wound circular, of 2 mm diameter with lacerated, contused inverted margins, outer right infra scapular region. 2. Punctured wound, circular of 2 mm diameter, with lacerated, contused inverted margins on right renal area. There were corresponding holes on the baniyan which Ram Singh was putting on. 3. Oblique deep abrasion ⅓" x 1/10" on the Rt. ear pinna, anterior aspect on the ante tragis. 4. One hard circular solid pellet like object embedded in the right parotid region. 5. Circular punctured wound of 2 mm diameter, lacerated, contused inverted margins on the front of left shoulder. 6. Deep abrasion ⅓" x ⅕" on the right middle finger. 7. Punctured wound of 2 mm diameter circular, with lacerated contused inverted margin on the right hand dorsal medial aspect. 8. Oblique lacerated wound 'h" x ⅕" x ⅕" on the dorsal aspect of the left forefinger middle digit. Radiological examination of Ram Singh as per report Ex. P.13 revealed radio-opaque shadow on the right side of face region suggestive of lead pellet shadow. Similar rounded radio- opaque shadow was seen on the right side of the chest suggestive of lead pellet shadow. Radiological examination of Ram Singh as per report Ex. P.13 revealed radio-opaque shadow on the right side of face region suggestive of lead pellet shadow. Similar rounded radio- opaque shadow was seen on the right side of the chest suggestive of lead pellet shadow. Further, on right hand four rounded radio-opaque shadows suggestive of lead pellets shadows were seen, and on left shoulder one rounded radio- opaque shadow on left humorous region, suggestive of lead pellet shadow was seen. The doctor, therefore, opined that injuries Nos. 1,2, 4,5 and 7 sustained by Ram Singh were caused by firearm and that injuries Nos. 3,6 and 8 were simple and caused by blunt object. 11. Dr. Bhardwaj found following injuries on the person of Revti vide M.L.R. Ex. P.14: "1. Circular punctured wound with' lacerated bruised inverted margins, diameter 2 mm on the left side of front of lower chest 1" abrasion right sternum; a corresponding hole in the 'Baniyan', which he was putting on, was seen. 2. Abrasion ⅕" x 1/10" on the right side of upper lip." 12. Radiological examination of chest and abdomen of Revti vide X-ray report Ex. P.15 revealed that there was one rounded radio- opaque shadow, suggestive of lead pellet shadow in the cavities of posterior abdominal wall of abdomen and chest area. 13. As per M.L.R. Ex. P.16, Smt. Janki had one contusion 1" x 1"on left thigh. This injury was simple being caused by blunt object. 14. As per M. L.R. Ex. P.17, Gyarsia had the following injuries: "l. Oblique gaping incised wound, 3" x l" x 1" on the front of right knee with clean cut regular margins. 2. Deep abrasion vertical 1/2"x 1/4' on the front of left knee. 3. Abrasion 1 /3" x 1 /4" on the front of left leg, middle 1 /3rd. Injury No. 1 was caused by sharp object while rest of the injuries were caused by blunt object and were simple in nature." Dr. Bhardwaj as per MLR Ex. P.18 detected following injuries on the person of Prakash: "1.Oblique lacerated would 2" x ⅓" x'/a" on the mid line of posterior parietal region. 2. Oval shaped lacerated wound of 2.5 mm diameter on the left parietal region. 3. Abrasion t/L" x 1/4" on the left forearm, dorsal aspect upper 1 /3rd. 4. Abrasion 1 /3" x 1/4" on the knob of the left index finger. 2. Oval shaped lacerated wound of 2.5 mm diameter on the left parietal region. 3. Abrasion t/L" x 1/4" on the left forearm, dorsal aspect upper 1 /3rd. 4. Abrasion 1 /3" x 1/4" on the knob of the left index finger. 5 Oblique red contusion 5" x 1"on the right scapular region. All these injuries were caused by blunt object and simple in nature." 15. During investigation, it transpired that Munshi, Giri Raj, Lakhi and Mahendra Singh were not among assailants and they were not present at the time of incident. Appellants, Ram Prasad and Ramswaoup and other co-accused persons were arrested on 3.1.1991 and at the time of their arrest from their possession one country made pistol (Katta) and 'Dharia' respectively were recovered. Since appellant Maharaj Singh was employed in the Indian Army and after the incident he had joined his duties, therefore, after a long correspondence, he was arrested as late as on 5.2.1992. After completion of investigation, the police submitted a challan against the present appellants and six co-accused persons only. 16. All the accused persons pleaded not guilty and claimed trial. 17. To prove its case, the prosecution examined as many as 24 witnesses. Appellant Maharaj Singh in his statement u/Section 313, Criminal Procedure Code denied all the circumstances appearing against him in the prosecution evidence and asserted that due to enmity, he has been falsely implicated. Appellant Ram Prasad denied the indictment and asserted that on the day of the incident, he alongwith co-accused Hansa, after purchasing stones from the quarry at Khanka, were returning to their village Durgsee via Bhahbalpur; that when they reached near the patore of Revti, deceased Gajraj Singh, who was armed with a naked sword, and PWs Revti, Ram Singh, Prakash and Gyarsia came out from their "patore" and attacked on them; that thereupon in exercise of his right of private defence, he fired shot from his 'Katta' towards Gajraj Singh causing injuries to him; that hearing the noise, appellant Ram Swarup having a 'Dharia' and co-accused Shiv Singh armed with lathi came there from their nearby field to rescue them and that thereafter they went away to their village. He asserted that appellant Maharaj Singh had not fired any gun shot and caused any injury to Gajraj Singh. Appellant (DW 1) Ram Prasad also examined himself under Section 315, Criminal Procedure Code and repeated the same story. 18. He asserted that appellant Maharaj Singh had not fired any gun shot and caused any injury to Gajraj Singh. Appellant (DW 1) Ram Prasad also examined himself under Section 315, Criminal Procedure Code and repeated the same story. 18. Appellant Ram Swarup pleaded ignorance about the circumstances appearing against him in the prosecution evidence and stated that he alongwith Shiv Singh were working in their field situated near 'patore' of Revti, that after hearing the noise to the effect that Prakash, Giri Raj, Gajraj Singh and Revti had attacked on Ram Prasad and Hansa (accused); and that Gajraj Singh had attacked by a naked sword, they went to rescue them; and that in exercise of right of private defence, appellant Ram Prasad fired gun shot by country made pistol "Katta" causing injuries to Gajraj Singh. He claimed that he has been falsely implicated due to animosity. 19. After trial, the learned Sessions Judge held that as no specific charge was framed for causing injuries to Prakash, co-accused Hansa and Ratti cannot beheld liable for causing injuries to him; that the prosecution miserably failed to prove that nine co-accused respondents had formed an unlawful assembly with a common object to commit murder, and that no specific overt act of co-accused persons except appellants (i) Maharaj Singh, (ii) Ram Swarup, and (iii) Ram Prasad, was established from the prosecution evidence and as such none of the accused persons could be held vicariously liable for the act of other accused persons. He however, concluded that it was established beyond reasonable doubt that appellant Maharaj Singh was present at the time and place of the incident, that he had fired from his 12 bore gun causing injuries to Gajraj Singh, which proved fatal, resulting in his instantaneous death, that appellant Ramswarup fired from his "Katta" and caused firearm injuries to Revti and Ram Singh and that appellant Ramswarup had deliberately inflicted injuries, by 'Dharia' to PW 11 Gyarsia and that each one of them was liable for his own act. The learned Trial Judge held that theory of private defence of person put forward by the defence was patently false and concocted and that immediately after the occurrence appellant Maharaj Singh went away to his military unit, that after a long correspondence, he was arrested as late as on 5.2.1992 and that is why no gun could be recovered from his possession. The learned Trial Judge further held that though there were some contradictions and improvements in the statements of the prosecution witnesses but by separating the chaff from the grain, the substratum of the prosecution story has been well proved beyond reasonable doubt against the appellants. He, therefore, by impugned judgment convicted and sentenced the appellants in the manner indicated ad ultra. 20. In D.B. Crl. Appeal No. 234/93, an application was filed under Section 391, Criminal Procedure Code on behalf of the appellants for taking report of the State Forensic Science Laboratory on record, which was allowed vide order dated 12.1.1996. On 15.1.1996 the accused-appellants were further examined by this Court under Section 313,Cr.P.C. in respect of the said F.S.L. report. Appellant Maharaj Singh pleaded his ignorance. Appellant Ram Prasad admitted that the country made pistol received in the State F.S.L. belonged to him, that the same was in serviceable condition and that on the day of incident, he had fired from the said 'Katta'. He denied the report of the ballistic expert to the effect that on stereo and comparison microscopic examination, 12 bore gun's four cartridges, which were sent to him (Dr. Manocha) had not been fired from the said 12 bore gun (country made pistol 'Katta'). On the other hand, appellant Ram Prasad asserted that those cartridges were fired by him from his 'katta'. Appellant Ramswarup also stated that 'Katta' which was examined in the S.F.S.L., was in a serviceable condition and that on the day of incident, those cartridges were fired from the said 'Katta'. 21. We have heard Mr. Jagdeep Dhankhar, learned Counsel for the appellants, Mr. M.L. Goyal, learned Public Prosecutor and Mr. S.K. Jain with Mr. Jitendra Pandey, learned Counsel for the complainant at length, and carefully perused the record of the Trial Court in extenso. 22. Mr. Dhankhar assailed the impugned judgment on multiple grounds. He strenuously canvassed that the prosecution story has been massively altered during investigation from the one rendered in the written rep s art Ex. P.3 lodged by PW 7 Girraj; that in written report as many as 13 persons were mentioned as assailants; while after investigation challan was filed against nine accused persons and that it is a clear-cut case of over implication of accused persons. P.3 lodged by PW 7 Girraj; that in written report as many as 13 persons were mentioned as assailants; while after investigation challan was filed against nine accused persons and that it is a clear-cut case of over implication of accused persons. No specific overt act of appellant Maharaj Singh causing injuries by gun shot to Gajraj Singh was mentioned in the initial version given out in written report Ex. P.3 and FIR Ex. PA. On the other hand, it was mentioned in written report Ex. P.3, that co-accused Mardan, Munshi and Girraj were also armed with guns and Katta, besides appellants Maharaj Singh and Ram Prasad. Similarly, in written report Ex. P.3, it was alleged that co-accused Hansa, Mansingh, Bhanwar and Lakhi were armed with 'Dharias' besides appellant Ram Swarup. He has pointed out that in the FIR, it was mentioned by PW 7 Girraj that all the 13 assailants armed with guns, Katta, 'Dharia' and Lathi had forcibly broken open the doors and windows of Revti's 'patore' and forcibly taken out Gajraj Singh, Ram Singh, Revti, Prakash and Gyarsia and that thereafter they fired shots by gun, and Katta and inflicted injuries by Dharia and lathi causing injuries. But during trial, the initial prosecution version incorporated in the FIR Ex. P.4 has been given a go-bye and a new story has been introduced that the assailants first inflicted injuries to Prakash and on the alarm raised by the latter, deceased Gajraj Singh and others had come out from 'patore' of Revti. According to him, the prosecution version to the effect that deceased Gajral Singh and PW 1 Ram Singh and PW 3 Revti had sustained firearm injuries by separate and independent gun shots fired by Maharaj Singh and Ram Prasad is unsustainable keeping in view respective areas of firearm injuries sustained by them. Mr. Dhankhar asserted that the prosecution has suppressed the genesis of the incident and invented a new story during trial; and that the prosecution witnesses are related inter se, highly interested and inimical to the appellants and as such their testimony is unworthy of credence and, therefore, the prosecution case deserves to be discarded. 23. Mr. Dhankhar asserted that the prosecution has suppressed the genesis of the incident and invented a new story during trial; and that the prosecution witnesses are related inter se, highly interested and inimical to the appellants and as such their testimony is unworthy of credence and, therefore, the prosecution case deserves to be discarded. 23. Another thrust of his argument is that the investigation in this case has been casual, unfair and tainted; that it is unbelievable that when PW 17 Roshan Singh ASI reached the place of occurrence at about 5.15 p.m. he found all injured persons lying on the place of incident at various points shown in site plan Ex. P.1 and that there has been inordinate delay in recording police statements of various witnesses, for which no explanation has been rendered by the Investigating Officer, which casts a cloudy suspicion on the entire prosecution fabric. The Investigating Officer also did not care to send various objects recovered from the dead body to wit metallic pellets, disc like washer etc., to the State Forensic Science Laboratory for examination. Thus, there has been a serious investigational lapse, which is fatal to the prosecution case. Shri Dhankhar has submitted that the video graphic description of the incident with precision and striking similarity given by various eye witnesses is a pointer towards concoction and tutoring and as such, the learned Trial Judge has committed grave error in blindly placing reliance on their testimony. He has pointed out that there exist glaring inconsistencies between the ocular and medical evidence on many material aspects. The motive of the alleged crime has also not been proved. He further asserted that the defence theory stands probabilised from the evidence on record and that the sworn testimony of appellant Ram Prasad inspires confidence but the learned Trial Judge has committed an illegality in brushing aside the defence version, and in convicting the appellants, who deserve to be acquitted. 24. Mr. M.L. Goyal, the learned Public Prosecutor and Mr. S.K. Jain with Mr. 24. Mr. M.L. Goyal, the learned Public Prosecutor and Mr. S.K. Jain with Mr. Jitendra Pandey, learned Counsel for the complainant have vehemently contended that from the clear and cogent, and convincing evidence adduced by the prosecution, the presence of all the nine accused persons, who were armed with gun, 'Katta', Gandasi and lathis at the time and place of incident stands well-established; that the way, in which this heinous crime has been perpetrated dearly manifests that the common object of unlawful assembly was to commit murder of Gajraj Singh to cause injuries on the vital parts of Ram Singh and Revti by firearm and sharp edged injuries to Gyarsia and to cause injuries to other injured persons and that in such circumstances, even if the specific overt act of each of the accused was not described by the prosecution still then since they were members of the said unlawful assembly, each one of the assailants is squarely and vicariously liable for the acts of others. The learned Trial Judge has, therefore, erred in acquitting the accused- respondents from offences under Sections 148, 307/149,302/149, Indian Penal Code. They have reiterated that the substratum of the prosecution story has not at all been altered. It is true that PW 7 Girraj had tried to exaggerate the version of the incident in his report Ex. P.3 but since he was neither an injured person nor had seen the incident from the very beginning hence from the exaggeration made by him, the entire prosecution story cannot be disbelieved and rejected. Other' witnesses in their police statements had at the very outset informed the Investigating Officer that co-accused (i) Munshi, (ii) Girraj, (iii) Lakhi, and (iv) Mahendra Singh, whose names find mention in the report Ex. P.3 were not present at the time and place of incident. They have contended that FIR is neither an encyclopedia No. 1t is a substantial piece of evidence and that it can only be used for corroboration and contradicting the maker thereof. They have submitted that defence version put forward by the accused is concocted and totally false and the same does not stand even probablised from the evidence recorded in this case. As regards the conviction of the accused appellants, they have supported the impugned judgment and reiterated the reasons incorporated therein. 25. We have given our most anxious and thoughtful consideration to the rival submissions. As regards the conviction of the accused appellants, they have supported the impugned judgment and reiterated the reasons incorporated therein. 25. We have given our most anxious and thoughtful consideration to the rival submissions. Before we proceed to decide various contentions put forward at the Bar, we would like to briefly scan and scrutinise the evidence recorded in this case. 26. The prosecution case' rests on sworn testimony of injured witnesses, namely (i) PW 1 Ram Singh, (ii) PW 2 Prakash, (iii) PW 3 Revti, (iv)PW 1O Janki,(v)PW 12 Gyarsia,(vi) informant PW 7 Girraj, and eye witnesses (vii) PW 4 Sheeshram, (viii) PW 5 Roop Singh, (ix) PW 6 Kanhaiya, and (x) PW 11 Sampat besides the medical evidence which comprises of statements of PW 16 Dr. Narainlal and PW 23 Dr. Nandlal Sharma Radiologist. It also gets corroboration from the statements of various motbirs and Investigating Officers namely PW 17 Roshan Singh ASI, and PW 23 Ramhet Sharma SHO. 27. PW 1 Ram Singh, PW 2 Prakash, PW 4 Sheeshram are real brothers; PW 5 Roop Singh is uncle, while PW 10Smt. Janki, and PW 11 Gyarsia are the mother and father respectively of the deceased Gajraj Singh. Their presence at the time of incident was quite natural, but since they are relative witnesses, their testimony has to be closely scrutinised with care and caution. 28. PW 4 Sheeshram, aged 30 years deposed that on the ill-fated day, he alongwith deceased Gajraj Singh was working in their field; that appellants Maharaj Singh, Ram Prasad and Ram Swarup armed with gun, 'Katta' and 'Dharia' respectively and co-accused Mardan, Ratti, Hansa, Bhanwar, Man Singh etc., having lathis came to their fields to commit murder of Gajraj Singh. Appellant Maharaj Singh fired from his gun. Thereupon they were frightened. They ran away towards their house and that the said accused persons chased them. PW 4 Sheeshram stated that he climbed over the 'patore' of Roop Singh. PW 7 Girraj also came there. Accused persons pelted stones at the door of Revti's house. In the meanwhile, PW 2 Prakash, who had gone for grazing she goats in the jungle, came there running. Thereupon accused persons belaboured him. PW 4 Sheeshram stated that he climbed over the 'patore' of Roop Singh. PW 7 Girraj also came there. Accused persons pelted stones at the door of Revti's house. In the meanwhile, PW 2 Prakash, who had gone for grazing she goats in the jungle, came there running. Thereupon accused persons belaboured him. Prakash raised an alarm, whereupon Gajraj Singh came out from the house of Revti and at that moment of time, appellant Maharaj Singh fired another shot from his gun causing injuries on the face of Gajraj Singh, who fell down and died. Revti also came out of his house, appellant Ram Prasad fired from his 'katta', which caused injuries on his chest and abdomen. Appellant Ram Prasad again fired towards Ram Singh causing injuries on latter's head and shoulder, while appellant Ram Swarup dealt a 'Dharia' blow on the head of Gyarsia. co-accused Mardan gave a thrust blow by lathi to Smt. Janki. Thereafter the accused persons fled away, Girraj went to the Police Station to lodge the report. PW 4 Sheeshram further stated that the police came there after about two hours. He proved site plan Ex. P.1 and the seizure memo Ex. P.2 of blood stained garments of Gajraj Singh. In cross-examination, he admitted that the deceased was his real younger brother and that he had apprised the Investigating Officer about the incident on the same day. However, the police had recorded his statement after three days. A perusal of the police statement Ex. D.4 of Sheeshram indicates that it was recorded on 20.12.90. He told that he alongwith Gajraj Singh were working in their field; that the assailants had fired one gun shot and that when they were being hotly chased, the assailants had fired two more gun shots; and that the assailants were at about 14 paces behind them. He deposed that he had seen appellant Maharaj Singh firing from his gun in their field and that at that time, Gajraj Singh was running and had not been injured. He told that when he reached the roof of the 'patore' of Ram Singh, the assailants were at a distance of about 30-40 paces from him; that he alongwith PW 7 Girraj had witnessed the said incident hiding themselves behind the 'Til' crop, which was lying on the 'patore'. He told that when he reached the roof of the 'patore' of Ram Singh, the assailants were at a distance of about 30-40 paces from him; that he alongwith PW 7 Girraj had witnessed the said incident hiding themselves behind the 'Til' crop, which was lying on the 'patore'. He deposed that Prakash was grazing she-goats at a distance of about 2 fields away from the said 'patore'; that after hearing the bang of the fire and the notice, Prakash leaving his she-goats came running towards his house and while he was in the way, co-accused Ratti and Hansa waylaid and belaboured him. He specifically stated that the appellants did not cause any injury to Prakash. When confronted to portion A to B of his police statement Ex. D.4, wherein he had stated that when Prakash came from the jungle, Maharaj Singh, Ramswarup, Ram Prasad, Mardan, Ratti, Hansa, Bhanwar, Man Singh and Shiv Singh came there and started belabouring Prakash, he asserted that he had not named appellants as the persons who had caused injuries to him. We do not find any material inconsistency in his police statement Ex. D.4 and the statement made before the Trial Court, because in Ex. D.4 it has not been specifically mentioned that the appellants had also caused injuries to Prakash. He admitted that when Prakash raised the alarm, deceased Gajraj Singh, Revti and his father Gyarsia had came out of his house and tried to rescue Prakash and that thereupon the assailants leaving Prakash started belabouring them. He told that Gajraj Singh, Revti, Ram Singh and Gyarsia had not come out from Revti's 'patore' together but had come one after the other. When confronted to his police statement Ex. D.4, wherein it has not been mentioned that four aforementioned accused had come out from Revti's 'patore' one after other, he told that he had informed the Investigating Officer about it and that if the latter had not written the said facts in his police statement Ex. D.4, he cannot give any reason for this omission. Apparently this is neither a material omission nor a significant improvement during trial and on this count, the testimony of this witness cannot be discarded. He categorically refuted the suggestion that the deceased Gajraj Singh had come armed with a sword. D.4, he cannot give any reason for this omission. Apparently this is neither a material omission nor a significant improvement during trial and on this count, the testimony of this witness cannot be discarded. He categorically refuted the suggestion that the deceased Gajraj Singh had come armed with a sword. He stated that Malli, Pritam and Amar Singh, who came to the place of occurrence, had tried to rescue them. He told that the Investigating Officer did not go to his field. This witness has been cross examined at length but in our considered opinion, his testimony has remained unshaken and he is a reliable witness. 29. PW 2 Prakash aged 17 years deposed that on the day of occurrence at about 3 p.m. he was grazing she-goats, that accused persons attacked on his house, and that appellants, Maharaj Singh, Ram Prasad and Ram Swarup were armed with gun and Katta respectively, Ramsarup had a 'Dharia' while others had lathis. He further deposed that he was given beating in the way and when he started weeping and crying, Ram Singh, Revti, Gajraj Singh, Gyarsia, and Smt. Janki came out of Revti's 'Patore'. First of all, Gajraj Singh came out and appellant Maharaj Singh fired his gun towards him causing injuries on his face. Gajraj Singh fell down and died then and there. Appellant Ram Prasad fired from his 'Katta' and caused injuries to Ram Singh. He told that Hansa and Ratti (co-accused persons) inflicted injuries on his head and back; that appellant Ram Swarup dealt a 'Dharia' blow causing injuries on the left leg of his father Gyarsia and that accused persons also belaboured his mother Smt. Janki. He told that PWs Sheeshram and Girraj, who were hiding behind 'Til' crop ('Til-chhatta'), had also witnessed the said incident. He deposed that in the past Gajraj Singh had caused injuries to the father of appellant Maharaj Singh and due to that animosity, accused persons belaboured him. He specifically stated that he was not dragged out from 'Patore' of Revti, but was beaten in the pathway at a distance of about 25 ft. away from the said 'Patore' and that he did not receive any injury from 'Dharia'. When confronted to the portion A to B of his police statement Ex. He specifically stated that he was not dragged out from 'Patore' of Revti, but was beaten in the pathway at a distance of about 25 ft. away from the said 'Patore' and that he did not receive any injury from 'Dharia'. When confronted to the portion A to B of his police statement Ex. D.2, wherein it has been mentioned that Ram Swarup, Shiv Singh, Hansa, Bhanwar, Munshi, Ratti and Mardan having 'Dharia' and lathis came there, that they fell him down on the pathway and inflicted injuries by 'Dharia' and lathis, he denied to have stated to the Investigating Officer that he was also sustained injury by 'Dharia'. PW 16 Dr. Narainlal stated that Prakash did not receive any injury by a sharp weapon. In such circumstances, we do not find any significant contradiction or material improvement in the testimony of this witness during trial. As per M.L.R. Ex. P.18, Prakash had sustained as many as five lacerated wounds/bruises by blunt object. Thus, his testimony also gets due corroboration from the medical evidence. Since specific charge in respect of the injuries sustained by Prakash, was not framed against the accused persons, the learned Trial Judge has not taken into consideration the alleged acts of accused persons causing injuries to this witness. In our opinion, Prakash has valiantly withstood the test of cross examination and his testimony has remained shattered. The learned Trial Judge has, therefore, not committed any illegality in placing reliance on his sworn testimony. PW 1 Ram Singh aged 27 years is the injured witness and his presence at the time and place of incident stands firmly established. He deposed that on the ill-fated day at about 2-3 p.m., he alongwith his father Gyarsia, mother Smt. Janki was at the house of Revti, that the appellants alongwith six co-accused persons armed with gun, Katta,'Dharia',and lathis came there hotly pursuing Gajraj Singh and Sheeshram, who had come running from their field, that thereupon, he alongwith Revti, Gyarsia and Smt. Janki, Gajraj Singh and Ram Singh entered into the house of Revti. He stated that accused persons forcibly broke open door and window of their house. In the meanwhile, Prakash who had gone to graze his she-goats came there; that co-accused Hansa, Ratti and others belaboured him on the pathway. Thereupon Prakash raised an alarm and that thereafter they came out of their house. He stated that accused persons forcibly broke open door and window of their house. In the meanwhile, Prakash who had gone to graze his she-goats came there; that co-accused Hansa, Ratti and others belaboured him on the pathway. Thereupon Prakash raised an alarm and that thereafter they came out of their house. He deposed that Gajraj Singh was the first to come out from Revti's house and that appellant Maharaj Singh fired a shot from his gun at a distance (if 15 ft. and caused injuries on Gajraj Singh's chin, who fell down and died instantaneously. Appellant Ram Prasad fired from his 'Katta' towards Revti from a distance of 20-21 ft. and caused injuries on latter's chest. Ram Singh further deposed that appellant Ram Prasad again fired from his 'Katta' towards him causing injuries on left side of his chest and abdomen. While appellant Ramswarup dealt a 'Dharia' blow causing injuries on the right knee of leis father Gyarsia. He stated that other accused persons also inflicted lathi blows on him and caused injuries on his left leg and right hand. PW 16 Dr. Narainlal has proved M.L.R. Ex. P.12 of Ram Singh and informed that he found as many as eight injuries, on the person of Ram Singh by fire-arm and blunt object in the manner detailed in the M.L.R. PW 23 Dr. Nandlal Bhardwaj, Radiologist proved X-ray plates Ex. P.39 of Ram Singh and X-ray report and deposed that on radiological examination, he had seen radio- opaque shadows on various body parts of Ram Singh in the manner stated in Ex. P.13, including chest and face. Thus, this witness has received fire-arm injuries on vital parts of his body. The oral testimony of Ram Singh thus finds substantial corroboration from the medical evidence. PW 1 Ram Singh appears to us to be a reliable witness. 30. PW 1 Ram Singh further deposed that accused persons had also caused injuries to his mother Smt. Janki (PW 10). Regarding motive for the crime, he stated that on or about 12/13.6.1990, deceased Gajraj Singh had inflicted injuries to Lakhi, the father of appellant Maharaj Singh and for that incident, Gajraj Singh and his four brothers Revti, Mardan etc. were facing trial before the Additional Sessions Judge Hindaun. Regarding motive for the crime, he stated that on or about 12/13.6.1990, deceased Gajraj Singh had inflicted injuries to Lakhi, the father of appellant Maharaj Singh and for that incident, Gajraj Singh and his four brothers Revti, Mardan etc. were facing trial before the Additional Sessions Judge Hindaun. He told that he alongwith his brothers were also arrested in that case and that due to enmity the appellants and their companions had committed murder of Gajraj Singh and belaboured them. He categorically refuted the suggestion that on the day of incident, appellant Ram Prasad and co-accused Hansa, while they were returning from 'Khanaka' (quarries) and reached near their 'patore' situated in village Bhahbalpur,deceased Gajraj Singh and attacked on them with a sword. He denied the suggestion that PW 2 Pra ka.h had also entered inside the house of Revti alongwith him. He specifically stated that except appellants Ram Prasad and Maharaj Singh, no other accused had fired any shot. He told that appellant Ram Prasad had fired towards him from his 'Katta' from a distance of about 15-20 ft, and that appellant Maharaj Singh (lid not fire any gun shot towards him. He stated that Prakash was beaten on the pathway at a distance of 40-50 ft. from the 'patore' of Revti, and that appellant Maharaj Singh had fired towards Gajraj Singh from a distance of about 10 ft. He was confronted with his police statement Ex. D.1, wherein it has not been mentioned that the accused persons had forcibly broken open the door and window (jangla) of their house. This witness stated that he had informed the Investigating Officer about this fact and that he could not give any reason for this omission. It may be mentioned here that PW 17 Roshan Singh ASI, who inspected the site immediately after the occurrence and prepared the site plan, deposed that he had found the door and window of Revti's house broken. This fact also finds mention in the site plan Ex. P.I. In such circumstances, if the Investigating Officer did not care to mention this fact in police statement Ex. D.1 of Ram Singh then the latter cannot be blamed and this omission does not cause any substantial dent to the testimony of this witness. This fact also finds mention in the site plan Ex. P.I. In such circumstances, if the Investigating Officer did not care to mention this fact in police statement Ex. D.1 of Ram Singh then the latter cannot be blamed and this omission does not cause any substantial dent to the testimony of this witness. Ram Singh stated that he had come out from Revti's house within five minutes, but this fact does not find mention in his police statement Ex. D.10 Ram Singh is an illiterate and uneducated person and he does not have any idea about time and duration of a minute. This omission is, therefore, not material. Ram Singh has been grilled through intensive cross examination, but his testimony has not been shaken. The Trial Judge has, therefore, not committed any illegality in placing reliance on his testimony. 31. PW 3 Revti aged 55 years, stated that on the day of incident, he saw appellants Maharaj Singh, Ram Prasad and Ram Swarup, who were armed with gun,'Katta', and 'Dharia' respectively and six co-accused persons, who were armed with lathis, hotly chasing Sheeshram and Gajraj Singh deceased, who in turn came running from their fields towards their house. Thereupon he alongwith Gajraj Singh, Gyarsia, Smt. Janki and Ram Singh went inside his house. The assailants started belabouring Prakash, who raised an alarm and that thereupon they came outside from their house and at that time, Maharaj Singh fired a gun shot towards Gajraj Singh causing injuries on his face, and that Gajraj Singh fell down and died instantaneously. PW 3 Revti further stated that appellant Ram Prasad fired from his 'Katta' towards him causing injuries on his chest, and that latter again fired from his ' Katta' and caused injuries to Ram Singh on his chest. Appellant Ramswarup dealt a 'Dharia' blow causing injuries on right knee of Gyarsia. Co-accused persons gave thrust blows to Smt. Janki. He deposed that Girraj and Sheeshram, who were hiding behind "Til-chhatta" stacked on the 'patore' of Roop Singh,also witnessed the said incident. Appellant Ramswarup dealt a 'Dharia' blow causing injuries on right knee of Gyarsia. Co-accused persons gave thrust blows to Smt. Janki. He deposed that Girraj and Sheeshram, who were hiding behind "Til-chhatta" stacked on the 'patore' of Roop Singh,also witnessed the said incident. Regarding motive for the crime, he told that about six months prior to the ill-fated incident, deceased Gajraj Singh had caused injuries to Lakhi, the father of Maharaj Singh and for that, they were facing session's trial, Maharaj Singh used to tell that he would kill Gajraj Singh and due to that animosity, the accused persons had committed the murder of Gajraj Singh and also belaboured them. He admitted that in his police statement Ex. D.3 the fact regarding motive does not find mention and for this omission, he has failed to give any explanation. But from the suggestion put by the warned Advocate for the appellants and the testimony of other prosecution witnesses, it stands well -established that sometime in June, 199O Gajraj Singh, had inflicted injuries to Lakhi, the father of appellant Maharaj Singh, that the police filed a challan against the former and his brothers and that a sessions case was pending against them in the Court of the learned Trial Judge. In such circumstances, this omission in police statement Ex. D.3 is not so material, so as to make PW 3 Revti's testimony incredible. We do not find any material improvement or significant omission in the testimony of this witness.and any valid reason to disbelieve his statement. 32. PW 5 Roop Singh aged 32 years, told that at the time of the incident, he was in his 'Chhapra', that he heard a bang of gun shot coming from the side of his field and that he also saw PW 4 Sheeshram and Gajraj Singh running towards their house and appellants with six co-accused persons hotly chasing them. Maharaj Singh had a gun while Ram Prasad and Ramswarup were armed with 'Kattas' and Dharia respectively and other accused persons were having lathis. Seeing the accused persons, Gyarsia, Revti, Ram Singh, Smt. Janki and Gajraj Singh went inside their 'patore' while Sheeshram and Girraj took shelter behind 'Til Chhatta'. In the meanwhile, PW 2 Prakash, who was grazing his she-goats in the nearby jungle came there. He was waylaid by co-accused Hansa, Shiv Singh, Mardan and Ratti. Seeing the accused persons, Gyarsia, Revti, Ram Singh, Smt. Janki and Gajraj Singh went inside their 'patore' while Sheeshram and Girraj took shelter behind 'Til Chhatta'. In the meanwhile, PW 2 Prakash, who was grazing his she-goats in the nearby jungle came there. He was waylaid by co-accused Hansa, Shiv Singh, Mardan and Ratti. Ratti and Mardan belaboured him, who raised an alarm. Thereafter Gajraj Singh and Revti came out of their house and at that moment of time, Maharaj Singh fired a gun shot towards Gajraj Singh causing injuries on his face, who died on the spot. Appellant Ram Prasad fired towards Revti causing injuries to him. Ram Prasad again fired from his 'Katta' and caused injuries to Ram Singh on his chest. Appellant Ramswarup gavea 'Dharia' blow causing injuries to Gyarsia on his right leg. Smt. Janki was also beaten by co-accused persons- He told that the police had come to the place of occurrence after about 2 hours. A perusal of police statement Ex. D.5 of Ram Singh indicates that his statement was recorded by PW 24 Ramhet SHO on 7.1.91. This witness has been confronted with his police statement Ex. D.5 but no material or significant omission has been elicited. He has also admitted that he has been facing trial regarding the incident wherein deceased Gajraj Singh had inflicted injuries to Lakhi. He told that due to that animosity, accused-appellants had attacked it on them and committed murder of Gajraj Singh. He categorically denied the suggestion that at the time of incident, Gajraj had come out with a sword from Revti's 'pator' and attacked upon Ram Prasad and Hansa (accused persons). He told that he had seen the incident from his thatched. A perusal of site plan Ex. P.1 shows that PW 5 Roxop Singh's house is situated just adjacent to the 'patore' of Revti, His presence has been proved by the testimony of other witnesses also. Therefore, his presence at the time and place of incident was quite natural. He is a reliable witness. 33. PW 6 Kanhaiya aged 45 years is also a resident of village Bhahhalpur. He stated that at the time of the alleged incident, he was in his house. He heard a sound of a gun fire. He saw that Gajraj Singh and Sheeshram were running and that they were being chased by the appellants and six co-accused persons. 33. PW 6 Kanhaiya aged 45 years is also a resident of village Bhahhalpur. He stated that at the time of the alleged incident, he was in his house. He heard a sound of a gun fire. He saw that Gajraj Singh and Sheeshram were running and that they were being chased by the appellants and six co-accused persons. Appellants Maharaj Singh, Ram Prasad and Ramswarup had 12 bore gun, 'Katta' and 'Dharia' respectively and while co-accused persons were armed with lathis. Seeing them, Gyarsia, Ram Singh, Smt. Janki, deceased Gajraj Singh and Revti hided themselves in Revti's 'Pattor'. Accused persons threw stones on the door of Revti's 'Pattor'. In the meanwhile Prakash who had gone to graze his she-goats, came on the pathway. Accused Ratti, Hansa, Man Singh, Mardan, Shiv Singh belaboured him. Rrakash shouted, whereupon Gajraj Singh came out of his house and at that moment of time, appellant Maharaj Singh fired his gun towards Gajraj Singh causing injuries on his face. Gajraj Singh fell down and died then and there. PW 3 Revti also came out from his 'Pattor'. Appellant Ram Prasad fired from his 'Katta' towards PW 3 Revti causing pellet injuries on latter's chest. Ram Prasad again fired from his 'Katta' and caused injuries to Ram Singh while appellant Ramswarup gave a Dharia blow and caused injuries on the right leg of Gyarsia. co-accused persons also inflicted injuries to Ram Singh. Thereafter Pukhraj, Ratti and Malli, all residents of village Nangal also came there and intervened and accused persons went away. In his cross examination, he admitted that he alongwith five sons of Gyarsia are facing trial for the injuries sustained by Lakhi in an incident, which took place about 6 months prior to the present incident. He told that the police had recorded his statement after 20 days of incident. He admitted that his name finds place in the voter's list of Rajan Ka Nangla and that his name is not mentioned in the voter's list of village Bhahbalpur. However, in his ration card, he has been shown as a resident of village Durgsee. Name of this witness also finds mention in the FIR, which was promptly lodged after the incident. This witness has been grilled extensively and confronted with his police statement Ex. D.6, but nothing material discrediting his testimony has been elicited. However, in his ration card, he has been shown as a resident of village Durgsee. Name of this witness also finds mention in the FIR, which was promptly lodged after the incident. This witness has been grilled extensively and confronted with his police statement Ex. D.6, but nothing material discrediting his testimony has been elicited. We do not find any valid reason to disbelieve his testimony. 34. PW 7 Girraj aged 45 years deposed that on the ill-fated day, at about 2.30 p.m. he was in his house; that he heard noise from the side of Jatwara. He saw from Roop Singh's 'Pator' that appellants alongwith six co-accused persons were chasing Gajraj Singh and Sheeshram. Gajraj Singh, Sheeshram, Ram Singh, Revti and Janki entered into their 'Pator'.He further deposed that accused persons threw stones on the windows and doors and also broke open the 'jungla' of Revti's 'Pator'. Meanwhile, Prakash after grazing the she-goats came there, who was belaboured on the pathway. Prakash cried. Thereupon Gajraj Singh came outside from the courtyard of Revti's house. Appellant Maharaj Singh fired a gun shot from his gun and caused injuries on the face of Gajraj Singh, he died instantaneously. Appellant Ram Prasad fired from his 'Katta' and caused injuries to Revti and Ram Singh. Appellants Rarnswarup inflicted 'Dharia' blow causing injuries on the knee of Gyarsia. Smt. Janki was also belaboured by the accused. He told that Roop Singh, Kanhaiya and Sampat had also witnessed the said incident. He told that he lodged the report at the Police Station, whereupon FIR Ex. P4 was drawn. He proved the site plan Ex. P1, inquest report, Ex.P 5, seizure memo of blood stained soil and controlled sample of soil, Ex. P6, which bear his signatures. He told that four empty cartridges, which were lying at the place of incident, were also seized and sealed by the Investigating Officer vide seizure memo Ex. P.7. He admitted that he alongwith Sheeshram had witnessed the incident taking shelter behind the 'Til Chhatta' stackedon the 'Pator' of Roop Singh. He told that he had mentioned in report Ex. P.3 that he had seen the accused persons chasing Gajraj Singh and Sheeshram. But this fact does not find mention in written report Ex. P.3 in this sequence. A careful perusal of the report Ex. He told that he had mentioned in report Ex. P.3 that he had seen the accused persons chasing Gajraj Singh and Sheeshram. But this fact does not find mention in written report Ex. P.3 in this sequence. A careful perusal of the report Ex. P.3 indicates that Girraj had mentioned therein that on the day of incident, at about 2-3 p.m., he was at his house; that he had heard a bang of gun fire emanating from the field of Sheeshram and thereupon, he came out of his house and saw Gajraj Singh and Sheeshram running away and entering into house of Revti; that Sheeshram came to him while Gajraj Singh, Revti, Ram Singh, Prakash had Gyarsia, who we real ready thereat the place of incident at once entered into Revti's 'Pator' and closed the doors; that he alongwith Sheeshram climbed over the 'pattor' of Roop Singh and hided himself behind 'Til Chhatta', that at the same time, appellants Maharaj Singh, Ram Prasad and co-accused Mardan and one Munshi of village Dhahar having guns, Girraj armed with Katta, Lakhi, Swarup, Hansa, Bhanwar, Mansingh having 'Dharias', and Ratti, Shiv Singh and Mahendra Singh armed with lathis, came there. They forcibly broke open the door and window of Revti's house and dragged out Gajraj Singh, Ram Singh, Prakash and Cyarsia and with an intention to kill them fired from gun and 'Katta' and inflicted injuries by 'Dharia' and lathi. Gajraj Singh died on the spot, while Revti, Ram Singh, Prakash, Gyarsia and Smt. Janki sustained injuries. The condition of Revti was serious. I n report Ex. P.3, it was also mentioned that Roop Singh from his 'Chhapra', Kanhaiya, who was near the 'Pator' of Roop Singh, had also witnessed the said incident and that Malli, Swarup, who are residents of Nangal had also come there and seen the incident. He further mentioned in FIR Ex. P.3 that dead body of Gajraj Singh as also injured persons were lying on the spot. 35. A careful persual of the written report Ex. P.3 reveals that though it has not been specifically mentioned that accused persons were chasing Sheeshram and Gajraj Singh, who came running from their fields, but from the reading of written report Ex. P.3 that dead body of Gajraj Singh as also injured persons were lying on the spot. 35. A careful persual of the written report Ex. P.3 reveals that though it has not been specifically mentioned that accused persons were chasing Sheeshram and Gajraj Singh, who came running from their fields, but from the reading of written report Ex. P.3, as a whole, it becomes abundantly clear that in order to save their lives, Gajraj Singh and Sheeshram had come running from their fields and had taken shelter alongwith others in Revti's house and that at the same time, the appellants alongwith 10 other persons armed with gun, 'Katta', 'Dharia', and lathis had come there, and that they forcibly tried to break open the door and window of Revti's house. Thus, it is implicit in report Ex. P.3 that the assailants running after Gajraj Singh and Sheeshram had come to Revti's house situated in village Durgsee. Since PW 7 Girraj was not present at the field of Gajraj Singh and Sheeshram, it was not expected of him to have mentioned in his written report Ex. P.3 that the accused persons had first come to the field of Gajraj Singh and Sheeshram, where appellant Maharaj Singh had fired a gun shot and in order to save their lives they fled away from their field and were chased by the accused. It is needless to mention that the FIR is not an encyclopedia of all the facts of the incident and it is not at all necessary to stuff it with all minutest details.Therefore, mere absence of the fact that 13 accused persons had come to Revti's 'Pater' hotly chasing Gajraj Singh and Seeshram, in written report Ex. P.3, does not make the entire prosecution story unreliable. Moreover this is not an important and material omission. It is true that Girraj in his written report Ex. P.3 exaggerated the version of the incident, inasmuch as that he has mentioned that Gajraj Singh, Ram Singh, Revti, Prakash and Gyarsia were d ragged out by the accused persons and that number of assailants was thirteen. It is just a case of exaggeration. It appears that Girraj in his enthusiasm for one reason or the other, tried to implicate as many as 13 persons and to exaggera to the incident in his report Ex. P.3. Admittedly Girraj did not sustain any injury. It is just a case of exaggeration. It appears that Girraj in his enthusiasm for one reason or the other, tried to implicate as many as 13 persons and to exaggera to the incident in his report Ex. P.3. Admittedly Girraj did not sustain any injury. He did not witness the first incident which took place in the field of Gajraj Singh and Sheeshram. After hearing the bang of a gun shot, he had come out from his house situated in village Durgsee and then reached to the 'Pator' of Roop Singh, situated in nearby village Bhahbalpur situated at a distance of about 1 km. Thus, it is doubtful that he had actually seen the incident from the beginning to the end, though he has claimed to have witnessed the whole incident. It appears that he was only an informant of the incident. In our considered opinion, he in his over enthusiasm exaggerated facts of the incident and tried to implicate as many as thirteen accused persons in his report Ex. P.3. As a matter of fact, PWs Ram Singh, Prakash, Revti, who were examined on 18.12.90 i.e., next day of the incident and PW Sheeshram, Girraj, Ram Singh, Sampat and Smt. Janki, who were examined on 20.12.90, in their police statements did specifically inform the Investigating Officer that Munshi, Girral, Lakhi and Mahendra Singh, who were named as assailants by Girraj in his written report Ex. P.3 were not at all present at the time and place of the incident. They also did not state in their police statements that the appellant sand the remaining six co-accused persons had physically dragged out Gajraj Singh, Ram Singh, Revti, Prakash and Gyarsia from the house. On the other hand, they categorically stated in their respective police statements that Prakash was waylaid in the pathway and belaboured and that when he raised an alarm, Gajraj Singh and others had come out from Revti's house that Maharaj Singh fired a shot from his gun and caused injury on the face of Gajraj Singh, who died on the spot, that Ram Prasad fired from 'Katta' and inflicted injuries to Ram Singh and Revti and that Ram Swarup belaboured Gyarsia by 'Dharia' and that other accused persons caused injuries to Smt. Janki by lathis. Thus, a clear picture of the incident had emerged and projected from the police statements of these witnesses, recorded on the very next day of the incident. Therefore, the substratum of the prosecution story was that a bang of the gun fire had emanated from the field of Sheeshram, that Sheeshram and Gajraj Singh were seen running away from their field, that Gajraj Singh took shelter inside Revti's house, while Sheeshram climbed over the roof of 'Pator' of Roop Singh, where he hided himself behind 'Ti lchhatta', that Revti, Ram Singh and Gyarsia, had also gone inside Revti's house and bolted the doors. It is true that in written report Ex. P.3. Girraj had mentioned that Prakash had also went inside the 'Pator' of Revti but this fact was stoutly denied by Prakash in his police statements Ex. D.2, who asserted that after hearing the noise, he came from the jungle, where he was grazing his she goats and that when he came towards his house, he was waylaid in the pathway, and belaboured by accused Hansa and others, that when he raised alarm, Gajraj Singh, Ram Singh Revti, Gyarsia and Smt. Janki came out of their house and that appellant Maharaj Singh fired his gun, causing injuries on the face of Gajraj Singh, who died then and there, that appellant Ram Prasad fired his 'Katta' and inflicted injuries to Ram Singh and Revti and that appellant Ramswarup dealta 'Dharia' blow and caused injury to Gyarsia.During trial, PW 2 Prakash has consistently deposed likewise and his testimony has been fully corroborated by all the injured witnesses. Therefore, another part of the substratum of the prosecution story is that appellant Maharaj Singh fired a shot from his gun towards Gajraj Singh causing injuries on his face, which proved fatal, and who died instantaneously. Thereafter appellant Ram Prasad fired twice from his 'Katta' causing injuries to Revd and Ramsingh on their chest and other parts of the body in the manner detailed in their M.L.Rs. Ex. P12 and P14 respectively and that Ramswarup deliberately had dealt a 'Dharia' blow causing injuries on the right knee of Gyarsia. All these facts and circumstances have been firmly established by the clear, consistent and credible testimony of aforementioned injured eye witnesses and the medical evidence. PW 5 Roop Singh and PW 6 Kanhaiya have also proved material facts of the substratum of the prosecution story. All these facts and circumstances have been firmly established by the clear, consistent and credible testimony of aforementioned injured eye witnesses and the medical evidence. PW 5 Roop Singh and PW 6 Kanhaiya have also proved material facts of the substratum of the prosecution story. In such circumstances, some insignificant improvements in the prosecution story made d wring trial cannot completely demolish the truthfulness of the fabric of the prosecution case. In our considered opinion, Girraj is partly a reliable and partly unreliable witness. But his testimony in respect of the substratum of the prosecution story stands fully corroborated and firmly established by straight forward and trustworthy testimony of injured eye witnesses and the medical evidence. PW 8 Pritam aged 30 years is resident of village Durgsee. His name does not find mention in the FIR. He deposed that on the ill-fated day at about 2-3 p.m. he was at his house. He heard the noise and then he came out of his house and saw the appellants and six co-accused persons coming. Appellant Maharaj Singh was armed with a gun, appellant Ram Prasad had a 'Katta' and Ramswarup was having a 'Dharia', and other accused persons had lathis in their hands. Maharaj Singh fired from his gun towards Gajraj Singh, while appellant Ram Prasad fired from his 'Katta' towards Revti and Ram Singh and appellant Ramswarup inflicted 'Dharia' blow to Gyarsia. Other co-accused persons d id No. Inflict any injury. Thereafter, this witness was declared hostile. In cross examination he admitted that his house was situated 2-3 houses away from the house of Revti and that when he heard bangs of the gun fire, he had come to Ravti's house and that at that time, he had seen Gajraj Singh, Revti, Ram Singh and Prakash lying injured. Thus he is not an eye witness and it appears that he had reached the place of occurrence after the incident had taken place. However, he specifically stated that he did not see deceased Gajraj Singh armed with a sword nor see Cyarsia and others throwing stones. We do not place any reliance on the testimony of this witness. 36. PW 9 Amar Singh aged 28 years is resident of village Durgsee. However, he specifically stated that he did not see deceased Gajraj Singh armed with a sword nor see Cyarsia and others throwing stones. We do not place any reliance on the testimony of this witness. 36. PW 9 Amar Singh aged 28 years is resident of village Durgsee. He stated that at the time of the alleged incident, he had seen appellants namely, Maharaj Singh, Ram Prasad and Ram Swarup duly armed with gun, 'Katta' and 'Dharia' respectively and six co-accused persons having lathis, in front of the door of house of Revti, that accused persons threw stones towards Revti's house and at that time Prakash came there with she-goats and was belaboured by co-accused persons. After Prakash sustained injuries, Gajraj Singh came out of his house. Appellant Maharaj Singh then fired a gun shot towards Gajraj Singh causing injuries on his face, who died on the spot. Appellant Ram Prasad fired from his 'Katta' causing injuries to Revti and Ram Singh,while appellant Ram Swarup inflicted 'Dharia' blow to Gyarsia causing injury on his right leg. He told that his brother Pritam was also there. In cross examination he told that he had heard the noise coming from the side of Revti's house and that he did not hear the bang of the gun emanating from the house of Gyarsia. In his police statement Ex. D.8, he had stated that he had heard the bang of the gun shot from the side of house of Gyarsia. It may be mentioned here that Gvarsia is the father of deceased and uncle of Revti and their houses are situated facing each other as shown in site plan Ex. P.I. In such circumstances, it is not at all a material contradiction. In his police statement Ex. D.8, he did not mention about the incident of belabouring Prakash and for this omission, he could not assign any reason. It appears that this witness had come from village Durgsee and reached the place of occurrence later on after hearing the noise. Therefore, we do not place much reliance on his statement. 37. PW 10 Smt. Janki is another injured eye witness. She has proved the prosecution case in details. She has also been extensively cross examined. We do not find any material improvement or inconsistency in her evidence. Therefore, we do not place much reliance on his statement. 37. PW 10 Smt. Janki is another injured eye witness. She has proved the prosecution case in details. She has also been extensively cross examined. We do not find any material improvement or inconsistency in her evidence. She has categorically denied the suggestion that Gajraj Singh had come out of his house having a sword. The learned Trial Judge has correctly assessed her testimony and not committed any error in treating her as a truthful witness. 38. PW 11 Sampat has stated that at the time of the alleged incident, he was at his house. He saw Gajraj Singh and Sheeshram running towards their house, who were followed by the appellants and six other co-accused persons. Appellants Maharaj Singh, Ram Prasad and Ramswarup were having gun, 'Katta' and 'Dharia' respectively, while other six accused persons were having lathis; that Gajraj Singh, Ram Singh, Revti, Gyarsia and Smt. Janki entered into their house, while Sheeshram hided himself by climbing over the 'Pator' of Roop Singh, taking shelter behind 'Til Chhatta'. Accused persons threw stones towards the door and window of Revti's house and at that time, Prakash came there, who was beaten by 5-6 accused persons. Thereupon, Gajraj Singh came out from Revti's- house and appellant Maharaj Singh fired from his gun causing injuries on his face. Gajraj Singh died instantaneously. Appellant Ram Prasad fired from his 'Katta' causing injuries to Ram Singh and Revti. While appellant Ramswarup caused injuries to Gyarsia on his right leg by in flicting 'Dharia' blow. In his cross examination, he stated that his statement was recorded by the police after two days of the incident. Ex. D.1(1 is his police statements which was recorded on 20.12.1990. This witness was examined before the Trial Court on 22.10.)2. Therefore, after lapse of about two years it is not expected of him that he should exactly remember number of days when he was examined by the Investigating Officer. So this inconsistency in his statement is natural, minor and insignificant. He deposed that in his police statement Ex. D.10, it was wrongly mentioned that Gajraj Singh had come out of the house armed with a sword. It may he mentioned here that admittedly none of the appellants or co-accused had sustained any injury and no sword was recovered by the Investigating Officer. He deposed that in his police statement Ex. D.10, it was wrongly mentioned that Gajraj Singh had come out of the house armed with a sword. It may he mentioned here that admittedly none of the appellants or co-accused had sustained any injury and no sword was recovered by the Investigating Officer. It appears that the story of sword has been introduced later on. The learned Trial Court has correctly discussed and evaluated the statement of this witness and has not committed any error in placing reliance on his testimony. 39. PW 12 Gyarsia is an injured witness, whose presence a t the time of the alleged incident stands firmly established. He has fully proved the prosecution story in details. He has also been cross examined at length; but nothing substantial has been elicited to discredit his testimony. In our considered opinion, he is a reliable witness. 40. PW 13 Malli has been declared hostile but, this witness has also specifically stated that Gajraj Singh had not come out from Revti's house armed with a sword. Similarly, PW 14 Ratti and PW 15 Pukhraj have also been declared hostile and they do not support the prosecution story. PWs 13, 14 and 15, therefore, do not render any assistance to the prosecution. PW 16 Dr. Narainlal has proved post-mortem report (Ex. P.19) of deceased Gajraj Singh and injury reports Ex. P.14, P.12, P.18, P.17 and P.16 of injured persons namely Revti, Ram Singh, Prakash, Gyarsia and Smt. Janki respectively. From his testimony, the statements of injured witnesses and aforesaid eye witnesses stand substantially corroborated. PW 23 Dr. Nandlal Radiologist has proved X-ray plates and X-ray reports of injured Ram Singh and Revti. His testimony also corroborates the ocular evidence. 41. PW 17 Roshan Singh, ASI has proved written report Ex. P.3 and FIR Ex. P.4 and details of initial investigation, conducted by him in this case on 17 and 18.12.90. He has proved the site plan Ex. P.1, seizure memo Ex. P.2 of blood stained garments of the deceased, seizure memo Ex. P.6 of blood stained soil and controlled sample lifted by him from the place of incident. He deposed that he found 4 empty cartridges of 12 bore gun lying on the place of occurrence, which he seized and sealed vide seizure memo Ex. P.7. P.1, seizure memo Ex. P.2 of blood stained garments of the deceased, seizure memo Ex. P.6 of blood stained soil and controlled sample lifted by him from the place of incident. He deposed that he found 4 empty cartridges of 12 bore gun lying on the place of occurrence, which he seized and sealed vide seizure memo Ex. P.7. He stated that on 18.12.90 he a l so recorded statements of Ram Singh, Prakash and Revti/ Section 161, Criminal Procedure Code. 42. PW 18 Brijvasi resident of village Nangal had arrived at the place of occurrence after the incident. He has been declared hostile. Similarly PW 19 Swarup Gujar resident of village Nangal had also reached at the place of occurrence after the incident. He has also been declared hostile as he did not support the prosecution story. PW 20 Mani Ram Constable is the motbir of various arrest and seizure memos. He has not been cross examined. PW 21 Lakhan Singh Constable deposed that on 29.3.91, he had taken five sealed packets from the Malkhana of the Police Station and deposited those in the State F.S.L. and procured receipts Ex. P.37 and P.38. He has also not been cross examined. PW 22 Zamil Khan F.C. has proved various arrest memos of accused persons and seizure memos including Ex. P.35 pertaining to 'Dharia' which was seized from accused-appellant Ramswarup at the time of his arrest and seizure memo Ex. P.36 of 12 bore country made pistol ('Katta'), which was seized from appellant Ram Prasad at the time of his arrest. He admitted that appellants Ram Prasad and Ramswarup and other accused persons had surrendered at Police Station. 43. PW 24 Ramhet Sharma SHO, PS Suroth stated that he took over the investigation of this case on 20.12.90, and recorded statements of various witnesses, that on 3.1.91 he arrested appellants Ramswarup and Ram Prasad and six co-accused persons and also seized 'Katta' from the possession of Ram Prasad and 'Dharia' from possession of Ramswarup vide seizure memos Ex. P35 and P36 respectively. 44. FSL report dated 22.9.92 Ex. P.42, which has been admitted in evidence under Section 391, Criminal Procedure Code on the application of appellants, contains result of the examination of the four empty cartridges, which were sent to F.S.L. in a sealed packet and 12 bore country made pistol, which was seized from possession of appellant Ram Prasad. 44. FSL report dated 22.9.92 Ex. P.42, which has been admitted in evidence under Section 391, Criminal Procedure Code on the application of appellants, contains result of the examination of the four empty cartridges, which were sent to F.S.L. in a sealed packet and 12 bore country made pistol, which was seized from possession of appellant Ram Prasad. The ballistic expert has opined therein that the said 12 bore country made pistol was found in a serviceable condition, however, the said pistol got damaged during test fire in laboratory; and that examination of the barrel residue of the said country made pistol indicated that it had been fired. However, definite time of its last fire could not be ascertained. On the basis of stereo comparison and microscopic examination, it was also opined that the said four 12 bore cartridge cases had not been fired from the said 12 bore pistol. This opinion of the ballistic expert completely disproves, negatives and falsifies the statement of DW 1 Ram Prasad (appellant) to the effect that at the time of the incident, he had fired from his said country made pistol, 'Katta'; which was seized by the Investigating Officer at the time of his arrest and that the four empty cartridges, found lying on the spot at the place of occurrence, were fired from his 'Katta'. Appellant Ram Prasad in his subsequent plea recorded under Section 313, Criminal Procedure Code has reiterated that he had fired those four empty cartridges from his 'Katta' but this fact stands totally falsified from the F.S.L. report Ex. P.42, wherein it has been clearly mentioned that the said four empty cartridges were not fired from the said 12 bore country made pistol sent to the F.S.L. 45. Now we advert to the rival contentions raised before us. The main thrust of the arguments raised by Shri Dhankhar is that in this case, the initial version of the incident mentioned in written report Ex. P.3 lodged by PW 7 Girraj has been given a go-bye and the same has been massively altered inasmuch as in written report Ex. P.3, 13 persons (9 accused persons and Munshi, Girraj, Lakhi and Mahendra Singh) were mentioned as assailants, but the police after investigation, submitted challan against 9 accused persons only; secondly in report Ex. P.3 lodged by PW 7 Girraj has been given a go-bye and the same has been massively altered inasmuch as in written report Ex. P.3, 13 persons (9 accused persons and Munshi, Girraj, Lakhi and Mahendra Singh) were mentioned as assailants, but the police after investigation, submitted challan against 9 accused persons only; secondly in report Ex. P.3, the fact that PW 4 Sheeshram and deceased Gajraj Singh were chased by the assailants, was conspicuously missing, but during investigation and trial, the prosecution story was improved on this count. Thirdly, in FIR Ex. P.3 it was mentioned that deceased Gajraj Singh, PWs Revti, Ram Singh, Prakash and Gyarsia after seeing the assailants had entered into house of PW Revti and that thirteen assailants mentioned therein after breaking open the door and window of the house of Revti had dragged out Revti, Ram Singh, Prakash and Gyarsia, that the assailants belaboured by aforementioned persons by firing shot from gun, 'Katta' and inflicting 'Dharia' blow and committed murder of Gajraj Singh and inflicted injuries to Ram Singh, Prakash, Revti, Smt. Janki and Gyarsia, PWs Girraj Sheeshram, Math, Ram Singh and Brijwasi in their police statements dated 17.12.90 and PW 7 Girraj in his police statement dated 19.12.90 had also reiterated these facts, but the prosecution story was materially altered during investigation and thereafter during trial. Shri Dhankhar has pointed out that a new story was introduced that PW 4 Sheeshram and deceased Gajraj Singh were chased by nine accused persons, that Prakash, who as per written report Ex. P.3, had taken shelter inside the house of Revti but during investigation a new story was developed that Prakash had reached the place of incident from the jungle, that the assailants belaboured him on the pathway and when he raised alarm, Gajraj Singh, Ram Singh, Revti and Smt. Janki had come out from the house of Revti. Thus the genesis of the incident was changed. Thus the genesis of the incident was changed. It may be mentioned here that a careful perusal of the evidence collected by the Investigating Officer and the evidence recorded by the Trial Court manifestly indicates that at the time of the alleged incident the informant PW 7 Girraj was at his house situated in a nearby village Durgsee, that when he heard a bang of gun shot emanating from the field of Sheeshram, he came out and saw deceased Gajraj Singh and PW 4 Sheeshram running towards the house of PW 3 Revti, that Sheeshram came near him, while deceased Gajraj Singh, Revti, Ram Singh, Gyarsia and Prakash secured themselves inside the house of Revti and bolted the doors, whereas as per testimony of PW 4 Sheeshram, on the ill-fated day, he alongwith deceased Gajraj Singh was working in their field, that nine accused persons came there, who were armed with gun, 'Katta','Dharia' and lathis; that accused Maharaj Singh opened fire from his gun and that thereupon in order to save their lives, he alongwith Gajraj Singh ran away towards their house and that those nine accused persons chased them and came in front of 'pattor' of Revti. Thus, it is abundantly apparent that PW 7 Girraj was not an eye witness of the incident from the beginning till the end. Rather he had come out from his house after hearing the bang of gun shot, and at that time, he had seen Gajraj Singh, Revti and others taking shelter in the house of Revti and nine accused persons coming there. A careful perusal of the written report Ex. P.3 reveals that PW 7 Girraj had mentioned that when Gajraj Singh, Revti and others had entered into the house of Revti, thirteen accused persons armed with gun, Katta','Dharia' and lathis had come running. It impliedly shows that the said assailants had come to the place of incident chasing Gajraj Singh and Sheeshram. Thus the story of chasing Gajraj Singh and Sheeshram by accused persons is not at all a new story No. 1t is an improvement. 46. It is true that PW 7 Girraj in his written report Ex. It impliedly shows that the said assailants had come to the place of incident chasing Gajraj Singh and Sheeshram. Thus the story of chasing Gajraj Singh and Sheeshram by accused persons is not at all a new story No. 1t is an improvement. 46. It is true that PW 7 Girraj in his written report Ex. P.3 has mentioned presence of as many as 13 assailants but PWs Ram Singh, Prakash, Revti, Smt. Janki and Gyarsia, whose statements were recorded under Section 161, Criminal Procedure Code by PW 17 Roshan Singh on 18.12.90 i.e. next day of 4he incident, had in most unambiguous, unequivocal and categorical terms informed him that only nine assailants had arrived there and that Munshi, Giriraj, Lakhi and Mahendra Singh had not accompanied them. Even, in site plan Ex. P.1, Roshan Singh had made a specific note that Sheeshra an Malli at the time of the inspection of the site d not tell about the presence of Munshi, Girraj, Lakhi and Mahendra Singh at the time of the incident. Thus, it is clear that immediately after the incident PWs Sheeshram and Malli had informed the Investigating Officer that only nine assailants were there. The Investigating Officer, therefore, had adequate reasons to infer that PW 7 Girraj had falsely implicated Munshi, Lakhi Giriraj and Mahendra Singh and that it was a case of over implication. Except PW 7 Girraj all other witnesses in their police statements have shown the presence of only nine accused persons at the time of the incident. Thus, simply because PW 7 Girraj made over implication of the said four persons, it cannot be said that the prosecution has materially changed its story. 47. PW 7 Girraj has been held to be a partly reliable and partly not reliable witness. Injured PW 1 Ram Singh, PW 2 Prakash, PW 3 Revti, PW 10 Smt. Janki and PW 12 Gyarsia and other eye witnesses namely, PW 5 Roop Singh, PW 6 Kanhaiya consistently informed the Investigating officer and deposed during trial that Prakash, who had come from the jungle side, was way laid by assailants and belaboured on the pathway and that on the alarm raised by him, deceased Gajraj Singh, Revti and others had come out from 'Bakhar' of Revti. We do not find any valid and adequate reason to disbelieve the testimony of these witnesses. 48. Mr. We do not find any valid and adequate reason to disbelieve the testimony of these witnesses. 48. Mr. Jagdeep Dhankhar has placed reliance on the decision in Ram Kumar v. State of M.P. ( AIR 1975 SC 1026 ) , wherein it has been held that omission of the important facts in the F.I.R. affecting the probabilities of the case are relevant under Section 11 of the Evidence Act, in judging the veracity of the prosecution story. We respectfully agree with this principles of law, but in the instant case, there is no material omission of any important fact in the F.I.R. The factum of chasing Sheeshram and Gajraj Singh by accused persons is impliedly borne out from written report Ex. P.3 lodged by Girraj. It is true that PW 7 Girraj had made mention in the report Ex. P3 that Prakash had also taken shelter inside the house of Revti, but this fact was found incorrect during investigation from the very beginning. The facts narrated by various witnesses to the Investigating Officer while inspecting the site and mentioned by him in the site inspection note are hit by Section 162, Criminal Procedure Code. Only the facts, which the Investigating Officer noticed and observed inspecting the site and incorporated in the site inspection note are admissible in evidence. In the instant case, PW 17 Roshan Singh found that the door and the window of the house of Revti were lying broken. Similarly, he noticed that the dead body of Gajraj Singh was lying at the place marked 'XA' and that blood was also lying there. There facts find mention in the site plan Ex. P.1. He also noticed marks of pellets shots on the front wall of the house of Revti. Therefore, only these facts mentioned in the site plan, which were noticed or observed by the Investigating Officer are admissible in evidence whereas other facts mentioned in the site plan, based on hear say evidence of the witnesses are not at all admissible in evidence. 49. Even PW 7 Girraj has specifically deposed that Prakash had come there after grazing she-goats, that he was belaboured by accused persons and that when he raised hue and cry then deceased Gajraj Singh, Revti, and Smt. Janki etc. came out from the house of Revti. 49. Even PW 7 Girraj has specifically deposed that Prakash had come there after grazing she-goats, that he was belaboured by accused persons and that when he raised hue and cry then deceased Gajraj Singh, Revti, and Smt. Janki etc. came out from the house of Revti. In cross mentioned that Prakash had also entered into the house of Revti, he stated that he had not mentioned likewise therein. In our considered opinion, Girraj has spoken a lie on this aspect. But only for this contradiction and improvement he cannot be held to be a wholly unreliable witness. Moreover, on the basis of his partly unreliable testimony, entire prosecution case cannot beheld to be doubtful or false and thrown over board. 50. Mr. Dhankhar has also placed reliance on the decision in Pyare Mian and others v. State of Rajasthan (1976 Raj. Cr. Cases 243) , wherein it has been held that salient omissions of certain very important facts in First Information Report cast a cloud on the correctness of the initial prosecution story. In that case, in the FIR the scene of occurrence was stated to be on the road in front of the house of "B" and the FIR was conspicuously silent about the invitation alleged to have been extended by the accused party to the injured party for bringing about compromise regarding an old dispute as to the lending of bullock, but during trial, the place of occurrence was substantially changed and the story of invitation extended by the accused party was introduced. Thus, the story incorporated in the FIR was materially different from the prosecution version developed during trial. It was held that the theory of the invitation extended by the accused party for a compromise developed during trail was a significant omission in the FIR, which did cast a cloud on the correctness of the initial prosecution story. Evidently, such are not the facts here in the case on hand. Moreover, as has been held in Surjit Singh v. State of Punjab (1993 Supp. (1) SCC 208) , an FIR is not an encyclopedia of the entire case and is even not a substantive piece of evidence. It has value, no doubt, but only for the purpose of corroborating or contradicting the maker. Moreover, as has been held in Surjit Singh v. State of Punjab (1993 Supp. (1) SCC 208) , an FIR is not an encyclopedia of the entire case and is even not a substantive piece of evidence. It has value, no doubt, but only for the purpose of corroborating or contradicting the maker. Since in the case on hand, Girraj (informant) had not seen the occurrence from the very beginning, which had commenced from the field of Gajraj Singh and Sheeshram, any material omission in his written report Ex. P.3 can only be used for discrediting his testimony. 51. In the instant case, we do not find any omission of significant facts in the FIR Ex. P.3 touching the core of the prosecution case. The presence of injured PW 1 Ram Singh, PW 2 Prakash, PW 3 Revti, PW 10 Smt. Janki and PW 12 Gyarsia stands firmly established at the time of incident. Their presence at the place of occurrence was quite natural. Their testimony is consistent, convincing and credible. They have stated that on hearing the alarm raised by Prakash, when deceased Gajraj Singh, Revti came out of the 'Pator', appellant Maharaj Singh fired a gun shot causing injuries on the face of Gajraj Singh, who died there instantaneously and when Revti came out of his house, accused Ram Prasad fired from his 'Katta' causing injuries on the chest and abdomen of Revti and that Ram Prasad again fired from his 'Katta' and caused injuries to Ram Singh on his hand and shoulder while accused Ramswarup dealt 'Dharia' blow and caused injuries on the knee of Gyarsia. Their testimony has been substantially corroborated by statements of PW 16 Dr. Narainlal and PW 23 Dr. Nandlal. 52. Eye witnesses PW 4.Sheeshram, PW 5 Roop Singh, PW 6 Kanhaiya, whose names find mention in the FIR have also deposed likewise and fully corroborated the testimony of the injured witnesses. The alleged eye witnesses PW 8 Pritam, PW 13 Malli, and PW 19 Swarup had reached the place of occurrence after the incident. They have been declared hostile. Thus we do not find any substantial force in the contention of Mr. Dhankhar that in this case, initial version of the prosecution has been given a go-bye and that during trial, the prosecution has substantially improved and massively altered the prosecution case and has presented a tailor-made story. They have been declared hostile. Thus we do not find any substantial force in the contention of Mr. Dhankhar that in this case, initial version of the prosecution has been given a go-bye and that during trial, the prosecution has substantially improved and massively altered the prosecution case and has presented a tailor-made story. In our considered opinion, from the evidence recorded in this case, the main substratum of the prosecution case stands firmly established beyond any reasonable doubt. We also do not find any significant or salient omission of important facts in the FIR affecting the probabilities of the case. 53. The next limb of argument advanced by Mr. Dhankhar is that the investigation in this case has been causal, unfair and tainted and that the investigation thrust is apparent being with the object to secure the conviction of the accused rather than engaged in discovery of truth. It has been me coned in the site plan Ex. P.1 by PW 17 Roshan Singh, who inspected the place of occurrence that he found injured Ram Singh, Gyarsia, Prakash and Smt. Janki lying at the places marked as "B", "C", "E" and "F" respectively cL. in the site plan. But in his deposition before the Trial Court, Foshan Singh has not stated likewise. He has simply stated that when he inspected the site, he found the dead body of Gajraj Singh lying at the place marked "XA", where pool of blood was i so lying scattered and that he seized and sealed sample of blood stained soil and controlled sample. In cross examination he told that injured Prakash was lying outside 'Pator' of Revti at point "E" as marked in site plan. He has not deposed that when he had inspected the site, he has seen the aforementioned injured persons lying at the places marked "B", "C", "D" and "F" respectively shown in the site plan. No other prosecution witness has stated that when Roshan Singh inspected the site, the aforementioned injured persons were lying at various places at the scene of occurrence. It appears that at the time of inspection of the site, the witnesses had informed Roshan Singh and shown various places, where injured witnesses were lying before they were to ken to the hospitals after the incident. It appears that at the time of inspection of the site, the witnesses had informed Roshan Singh and shown various places, where injured witnesses were lying before they were to ken to the hospitals after the incident. As mentioned earlier, all these facts told by the witnesses to the Investigating Officer are hit by Section 162,Cr.P.C.and inadmissible in evidence. Therefore, the contention of Mr. Dhankhar that the description rendered in the site plan Ex. P.1 about places where various injured were lying at the time of inspection of the site does No. Inspire any confidence, is devoid of any force and substance. 54. Mr. Dhankhar has pointed out that in this case, there has been inordinate delay in recording police statements of various witnesses and that the said delay has not been explained, which reveals serious investigational lapse and casts serious suspicion against the prosecution. We are No. 1 Impressed by this argument. The alleged incident took place on 17.12.90 at about 2-3 p.m. PW 7 Girraj submitted the written report Ex. P.3 on the same day at about 4.30 p.m. at Police Station Suroth, which is situated at a distance of about 6 Kms. from village Bhahbalpur where the incident had taken place. The FIR Ex.P 4 had reached the concerned Magistrate at Hinduaun City next day at 11.30 a.m. Thus, the FIR was promptly lodged and the same was sent to the concerned Magistrate without delay. Initial investigation was conducted by PW 17 Roshan Singh ASI, who was the then I/C P.S. Suroth. He reached the place of occurrence in the evening of 17.12.90 and prepared the site plan Ex. P.I. He also seized and sealed 4 empty cartridge cases vide seizure memo Ex. P.7 from the place of occurrence and conducted autopsy and prepared Panchayatnama Ex. P.5 of the deceased, besides seizing and sealing the sample of blood stained soil and controlled sample. On 18.12.90 he recorded statements u /Section 161, Criminal Procedure Code of as many as five witnesses namely, Prakash, Revti, Ram Singh, Smt. Janki and Gyarsia. Thereafter on 20.12.90, PW 24 Ramhet Sharma SHO took over the investigation, and he recorded statements of PWs Sheeshram, Girraj, Amar Singh, Sampat, Pritam, Malli, Ratti, Pukhraj, Brijwasi, and Swarup on 20.12.90 and those of PWs Roop Singh, Kanhaiya on 7.1.91. Thereafter on 20.12.90, PW 24 Ramhet Sharma SHO took over the investigation, and he recorded statements of PWs Sheeshram, Girraj, Amar Singh, Sampat, Pritam, Malli, Ratti, Pukhraj, Brijwasi, and Swarup on 20.12.90 and those of PWs Roop Singh, Kanhaiya on 7.1.91. It is significant to note that no question has been put in cross examination either to PW 17 Roshan Singh ASI or to PW 24 Ramhet about the alleged delay in recording statements. Thus, no opportunity was given to these Investigating Officers for offering their explanation about the alleged delay. There was no inordinate delay on the part of Roshan Singh in recording statements of the injured witnesses. Similarly, PW 24 Ramhet Sharma immediately after he took over the investigation had recorded police statements of other eye witnesses and material witnesses. In our considered opinion, there had not been any inordinate delay and the same does not cast any cloud or suspicion on the prosecution fabric. 55. Mr. Dhankhar has placed reliance on the decision in G.B. Patel v. State of Maharashtra (1979 SCC (Cr.) 1=1978 (4) SCC 372) , wherein there was inordinate delay in recording statement of "R", on the basis of which FIR was registered and there was further inordinate delay in recording statements of eye witnesses. The conduct of witness Welji was strange and inconsistent with the normal conduct of an eye witness. In the backdrop of many infirmities and flaws, it was observed that undue delay in recording Parcha Bayan on the basis of which the FIR was lodged, and further the delay in recording police statements of the eye witnesses, looming large in the background, inevitably lead to the conclusion that the prosecution story was conceived and constructed after a good deal of deliberation and delay in a shady setting, highly redolent of doubt and suspicion. Apparently such are not the facts of the case on hand. Therefore, G.B. Patel's case (supra) does not come to the rescue of present appellants. 56. Another serious investigational lapse pointed out by Shri Dhankhar is that the objects like metallic pellet disc like washer, cylindrical object and washer found by PW 16 Dr. Narainlal in the dead body of deceased Gajraj Singh vide postmortem report Ex. P.19 and handed over to the police were not sent to the Forensic Science Laboratory for examination. 56. Another serious investigational lapse pointed out by Shri Dhankhar is that the objects like metallic pellet disc like washer, cylindrical object and washer found by PW 16 Dr. Narainlal in the dead body of deceased Gajraj Singh vide postmortem report Ex. P.19 and handed over to the police were not sent to the Forensic Science Laboratory for examination. It is true that those objects have not been sent to the F.S.L. but again, no question was put to any of the Investigating Officers in cross examination in this regard. Moreover, since appellant Maharaj Singh, who was working in the Army had absconded and afters great deal of correspondence with Military Authorities, he was arrested as late as on 5.2.92 and no gun was recovered from his possession. Therefore, in such circumstances, this alleged investigational lapse does not cause any prejudice to the appellants, and they cannot derive any substantial benefit, on this count. 57. It has been strenuously urged by Mr. Dhankhar that the prosecution version that deceased Gajraj Singh and injured PW Ram Singh and PW 3 Revti had suffered fire-arm injuries by separate independent shots is not sustainable keeping in view the area on their bodies where fire-arm injuries were caused. He has asserted that these injuries were caused by single gun shot fired by appellant Ra m Prasad by his 'Katta'. We do not find any substance in this argument. Firstly as.per FSL report Ex. P.42 on stereo and comparison by microscopic examination, ballistic expert has opined that four 12 bore cartridges sent to him had not been fired from the submitted 12 bore empty country made pistol (Katta) marked W 1, which was admittedly recovered from the possession of appellant Ram Prasad vide recovery memo Ex. P.36. Hence, it stands conclusively proved that the said four 12 bore empty cartridges, recovered from the place of occurrence, were not fired from the said country made 'Katta' of accused- appellant Ram Prasad. Secondly, PW 16 Dr. Narainlal stated that deceased Gajraj Singh had sustained extensive fire arm injuries with inverted margins in an area 3/4 x 1/2" x cranial cavity of the left infra orbital region, surrounded by circular punctured wound of 1 mm diameter on the front of upper lip both noses, left and right infra and supra orbital destroying both eye balls. Narainlal stated that deceased Gajraj Singh had sustained extensive fire arm injuries with inverted margins in an area 3/4 x 1/2" x cranial cavity of the left infra orbital region, surrounded by circular punctured wound of 1 mm diameter on the front of upper lip both noses, left and right infra and supra orbital destroying both eye balls. He further stated that there was no tattooing, blackening or scorching present on the wound. The hairs were not singed. The area of fire arm wounds measured 41/2 x 4" vertically. The doctor has stated that all these facts indicate that the gun shot was not fired from a close range. He, however, stated that he did not know as to what could be area of the dispersal of pellets, if the gun is fired from a distance of 25 ft. He has also stated that injured Ram Singh had punctured wound on his left infra scapular region of the back, another punctured wound of 2 mm. diameter on his left cranial area on his right parieto regions of the face and another punctured wound of 2 mm diameter on his left shoulder. He has also found punctured wound of 2 mm diamater of the left side of his chest and fire-arm injuries on his abdomen. As per evidence recorded in this case Gajraj Singh, Ram Singh and Revti were standing at different places. In such circumstances, it cannot be inferred that all of them had received fire-arm injuries by one gun shot.On the other hand, injured eye witnesses and other eye witnesses have categorically deposed that first of all Maharaj Singh fired his gun and caused injuries on the face of Gajraj Singh, who died on the spot and thereafter appellant Ram Prasad fired from his country made pistol (Katta) twice causing injuries to Ram Singh and Revti. Therefore, the argument advanced by Mr. Dhankhar on this count is against the evidence on record and the same is hereby foiled down. 58. We also do not find any force in the submission of Mr. Dhankhar that the prosecution has suppressed the genesis of the prosecution case and that on this count, the prosecution case deserves to be discarded lock, stock and barrel. 59. Mr. Dhankharhas lastly argued that the defence version stands probablised from the evidence recorded in this case. 58. We also do not find any force in the submission of Mr. Dhankhar that the prosecution has suppressed the genesis of the prosecution case and that on this count, the prosecution case deserves to be discarded lock, stock and barrel. 59. Mr. Dhankharhas lastly argued that the defence version stands probablised from the evidence recorded in this case. According to him, even during investigation, PW 8 Pritam, PW 13 Malli and PW 15 Pukhraj in their police statements Exs. P.8, P.9, and P.11 respectively stated that Gajraj Singh armed with a sword had come out from Revti's house. Therefore, this act of Gajraj Singh deceased caused a reasonable apprehension of the death or grievous hurt. Admittedly, there was previous litigation pending between the parties regarding an attempt made by Gajraj Singh and others for committing murder of Lakhi,the father of appellant Maharaj Singh. Appellant Ram Prasad (DW 1) in his statements u/Sections 313 and 315, Criminal Procedure Code has stated that he alongwith co-accused Hansa, was returning from 'Khanka' (quarries), where they had gone to purchase stones and they were going to their village, apprehending danger to their lives or grievous hurt, he fired from his 'Katta' in right of his private defence. Mr. Dhankhar has thus asserted that the learned Trial Judge has conveniently ignored the defence version and its probability and committed illegality in holding that the accused-appellant had no right of their private defence. 60. Appellant Ram Prasad has examined, himself, as DW 1 under Section 315, Criminal Procedure Code He deposed that on 17.12.90 he along with co-accused Hansa had gone from village Durgsee to village 'Khanka' to purchase stone slabs ('Pattis'), that while returning from 'Khanka' when they passed through village Bhabalpur around 2-2.30 p.m. and came near 'Pator' of Revti, deceased Gajraj Singh armed with a sword, PWs Revti, Prakash and Gyarsia having lathis attacked on them and that he thereupon in the self-defence fired from his country made pistol 'Katta' and caused injuries to Gajraj Singh. He further stated that Hansraj in his self-defence dealt lathi blows and raised alarm, which attracted co-accused Ram Swarup and Shiv Singh, whose fields are situated near the 'Pator' of Revti. He deposed that appellant Ram Swarup had 'Dharia' while Shiv Singh was armed with lathi, and that they dealt lathi blows and thereafter they ran away. He further stated that Hansraj in his self-defence dealt lathi blows and raised alarm, which attracted co-accused Ram Swarup and Shiv Singh, whose fields are situated near the 'Pator' of Revti. He deposed that appellant Ram Swarup had 'Dharia' while Shiv Singh was armed with lathi, and that they dealt lathi blows and thereafter they ran away. He told that he used to keep 12 bore country made 'Katta' with him. In his cross examination, he pleaded his ignorance about the name of those persons to whom, he had gone to purchase stone-patti. He stated that he had contacted about 20 persons at the quarries but he could not name even any one of them. He admitted that he had old enmity with Gajraj Singh and his companions. He also admitted that on the day of the incident, appellant Maharaj Singh had come to his village Durgsee on leave from the Army but stated that he was not present at the time and place of incident. He further admitted that neither he nor his companions received any injury. He told that Ram Singh and Revti did not sustain any firearm injuries. He pleaded his ignorance as to whether Ram Singh and Revti he received any injury or not. However, he admitted that Prakash and Gvirsia did receive injuries. He pleaded ignorance as to whether the door and window of house of Revti and Gyarsia were damaged or broken. He also admitted that he did not lodge any report against Gajraj Singh or his companions regarding the alleged attack made by them and that he was telling about this incident in the Court for the first time. He also admitted that even after he and Maharaj Singh were arrested, they did not disclose about the alleged incident of the attack made on them by Gajraj Singh and his companions to the police. He even did not remember as to which brand of the cartridges were lodged in his 12 bore 'Katta'. He told that he fired towards Gajraj Singh from a distance of 8- 10 ft. He denied his suggestion that since Maharaj Singh is his nephew and a young person, in order to save him, he was telling a lie. He also denied the suggestion that he alongwith co-accused persons had, in fact, attacked on the complainant party. He told that he fired towards Gajraj Singh from a distance of 8- 10 ft. He denied his suggestion that since Maharaj Singh is his nephew and a young person, in order to save him, he was telling a lie. He also denied the suggestion that he alongwith co-accused persons had, in fact, attacked on the complainant party. The statement of DW 1 Ram Prasad does not find any corroboration either from the medical evidence or any other evidence. From the testimony of PWs Ram Singh, Prakash, Revti, Smt. Janki Gyarsia, and Sheeshram and others it stands firmly established beyond reasonable doubt that the appellants were the aggressors. There was no reason as to why appellants Ram Prasad and accused Hansa had gone armed with unlicensed country made pistol, to purchase the stone slabs. Ram Prasad has miserably failed to name even one person, with whom he had contacted for the purchase of the stone slabs. Admittedly, on that day Ram Prasad did not purchase any stone slab from 'Khanka'. There is also no dispute that none of the appellants and co-accused persons had sustained any injury either by sword or lathi, nor any sword or lathi was found at the place of incident nor recovered by the Investigating Officer. As mentioned earlier, FSL report Ex. P.42 totally falsifies the statements of DW 1 Ram Prasad that he had fired from his country made 'Katta' causing injuries to Gajraj Singh because as per ballistic expert report, none of those four empty cartridge cases, which were found lying at the place of occurrence and seized by the Investigating Officer and sent to FSL, were fired by the country made 12 bore 'Katta', which was recovered from the possession of appellant Ram Prasad. Since appellants were aggressors, legally no right of private defence could accrue to them and even there was no danger or reasonable apprehension to them of their death or sustaining grievous hurt. PW 8 Pritam, PW 11 Sampat, PW 13 Malli, PW 15 Pukhraj have been declared hostile and their testimony was not reliable. In fact, they had reached the place of occurrence after the incident had taken place. Another factor to be taken into consideration is that while returning from 'Khanka' to village Durgsee, the pathway passing through village Bhahbalpur is on the north side and at a distance of more than 40-45 ft. In fact, they had reached the place of occurrence after the incident had taken place. Another factor to be taken into consideration is that while returning from 'Khanka' to village Durgsee, the pathway passing through village Bhahbalpur is on the north side and at a distance of more than 40-45 ft. from the house of Revti. In such circumstances, there was no occasion for the appellants to have gone in front of 'Pator' of Revti. Appellants and co-accused were armed with gun, 'Katta', 'Dharia' and lathis, whereas members of the complainant party were unarmed. All these facts lead to one and only one irresistible conclusion that the defence theory is fabricated, palpably false and is a creature of an afterthought. The bald and uncorroborated statement of DW I Ram Prasad is totally unreliable and unworthy of credence. Therefore, from the evidence on record, the defence story floated by the appellants does not stand probablised. In our considered opinion, the learned Trial Judge has not committed any illegality either of fact or law in discarding the defence version, which is totally false and concocted. The learned Trial Judge has scrutinised, scanned, analysed and evaluated the evidence in right perspective and correctly held that appellant Maharaj Singh had deliberately fired a gun shot with an intention to commit murder and caused fatal injuries to Gajraj Singh, who died instantaneously, and that appellant Ram Prasad fired from his country made pistol 'Katta' twice with intention to commit murders of Revti and Ram Singh and that appellant Ramswarup intentionally dealt 'Dharia' blow for causing injuries to Gyarsia on his knee. Therefore, their convictions recorded by the learned Trial Judge does not warrant any interference. D.B. Crl. Appeal No. 234/93, therefore, deserves to be and the same is hereby dismissed. 61. Now we take up arguments raised by the learned Public Prosecutor and the learned Counsel for the complainant and learned Counsel for the accused-respondents in the State appeal. PW 7 Girraj in his report Ex. P.3 mentioned that as many as 13 assailants armed with gun,'Katta', 'Dharia', and lathi had taken part in the incident but on the same day, during investigation, it was revealed that four alleged assailants namely, Munshi, Girraj, Lakhi and Mahendra Singh were neither present nor had taken part in the alleged incident. PW 7 Girraj in his report Ex. P.3 mentioned that as many as 13 assailants armed with gun,'Katta', 'Dharia', and lathi had taken part in the incident but on the same day, during investigation, it was revealed that four alleged assailants namely, Munshi, Girraj, Lakhi and Mahendra Singh were neither present nor had taken part in the alleged incident. Specific overt act of appellant Maharaj Singh, Ram Prasad, Ram Swarup only have been stated by the injured witnesses as well as other eye witnesses. Thus as regards co-accused (1) Hansa alias Hansraj, (2) Man Singh, (3) Mardan, (4) Bhanwar, (5) Ratti, and (6) Shiv Singh, no specific overt act was alleged. Even during trial, no active participation by these co-accused respondents has been disclosed by the prosecution witnesses. Even their presence at the time and place of incident has not been established beyond reasonable doubt. Thus, the basic ingredients for forming an unlawful assembly as also common object have not been convincingly established by the prosecution evidence. In such circumstances, the learned Trial Judge has not committed any illegality in acquitting these accused-respondents for offences under Sections 148, 307, 302 and 324 read with Section 149 Indian Penal Code and 323, Indian Penal Code. He has rightly held that the acquitted accused-respondents cannot be held vicariously liable for the acts of other accused persons. In our considered opinion, these findings arrived at by the learned Trial Judge are not perverse or against the record, and these do not warrant any interference. Therefore, the appeal filed by the State also deserves to be dismissed. 62. In the result, both these appeals fail and are hereby dismissed. The conviction and sentence of appellants Maharaj Singh for offence u /Section 302 Indian Penal Code, appellant Ram Prasad for offence u/Section 307 Indian Penal Code and appellant Ramswarup for offence u/Section 324 Indian Penal Code are hereby maintained. Appellant Maharaj Singh is in jail. The sentences of appellants Ram Prasad and Ram Swarup were suspended u/Section 389, Criminal Procedure Code Warrants for their arrest be issued and they be committed to jail to serve out the remaining sentences.Appeals dismissed. *******