JUDGMENT Prafulla C. Pant, J. This appeal, preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (for brevity hereinafter Cr. P.C.), is directed against the judgment and order dated 23-11-1987, passed in Sessions Trial No. 81 of 1983, by the then learned II Additional Sessions Judge, Dehradun, whereby accused / appellant Dhanraj has been convicted under Section 302 and 307 of the Indian Penal Code, 1860 (for brevity hereinafter I.P.C.), and sentenced to imprisonment for life under Section 302 of the I.P.C., and rigorous imprisonment of five years under Section 307 of the I.P.C. By the same judgment and order accused / appellant Bishan Lal @ Kishan Lal and accused / appellant Mohan have also been convicted under Section 201 of the I.P.C., and each one of them has been sentenced to rigorous imprisonment for five years. 2. We heard learned counsel for the parties and perused the entire record. 3. Prosecution story, in brief, is that late Sri Kul Prasad, father of P.W. 1 Prem Prakash, the informant, had two wives. Smt. Dilisara (deceased), the second wife of Kul Prasad, is mother of the informant. Kul Prasad had two sons from his second wife namely Prem Prakash (P.W. 1) and Luxman Prasad. The first wife of Kul Prasad had died about 16 years before the incident. Accused / appellant Dhanraj is one of the three sons of said first wife of Kul Prasad. The other two brothers of Dhanraj (appellant) are Bhoop Narain and Dhan Bahadur (P.W. 3). Sri Kul Prasad, father of the informant Prem Prakash and accused / appellant Dhanraj, died in the year 1976. On his death the land owned by him was mutated in the name of Dilisara (deceased). Accused / appellant Dhanraj used to suspect that Dilisara may transfer all the property in her name, in favour of informant and his real brother. Apart from this, three children of accused / appellant Dhanraj used to get fits due to epilepsy, and Dhanraj and his wife suspected that Dilisara (deceased), stepmother of accused / appellant Dhanraj, practices witchcraft which causes the illness in their children. On 21-04-1983 i.e. day of 'RAM NAVMI', there was 'POOJA' (worshiping) and 'HAWAN' (sacrificial ladle) in the family of the informant, which completed at about 1:00 PM. At about 4:00 P.M., one of the daughters of accused I appellant Dhanraj, got fits. On 21-04-1983 i.e. day of 'RAM NAVMI', there was 'POOJA' (worshiping) and 'HAWAN' (sacrificial ladle) in the family of the informant, which completed at about 1:00 PM. At about 4:00 P.M., one of the daughters of accused I appellant Dhanraj, got fits. At about 7:30 P.M., on the same day i.e. 21-04-1983, when informant Prem Prakash (P.W. 1 ) was sitting with his brother Luxman Prasad, accused / appellant Dhanraj, armed with his licensed SBBL gun, came in his house and told that due to witchcraft practiced by the informant's family, his daughter has got illness and he fired at the informant Prem Prakash. Only some pellets of the said shot could hit on temple near the right ear of the informant. Prem Prakash (P.W.1), informant along with his brother Luxman Prasad, rushed to a room in his house and locked it from inside to save their lives. Then, accused / appellant Dhanraj went to another room where Dilisara (mother of the informant) was in company of her daughter-in-law Khemawati (P.W. 5). He fired another shot from his gun, this time at Dilisara, which hit her and she died on the spot. Meanwhile, due to the sound of first shot, witnesses Dhan Bahadur (PW. 3), the real brother of the accused / appellant Dhanraj, and one Keshav Prasad also-rushed at the spot, but nobody could dare to apprehend Dhanraj as he was armed with a lethal weapon. After committing murder of Dilisara, Dhanraj fled from the scene. P.W.1 Prem Prakash got lodged the First Information Report (Ext. A-1) on the same day i.e. 21-04-1983, at about 9:40 P.M., with police station Dalanwala, which was at a distance of 8 kilometers from vmage Kidduwala, Raipur, Dehradun, where the incident took place. P.W.6 Head Constable Mangu Ram Tyagi prepared the check report (Ext. A-5) on the basis of the First Information Report, lodged by the informant. He further made necessary entry in the general diary, copy of extract of which is Ext. A -6. The crime was investigated by P.W.9 Sub Inspector Ram Kishore Sharma, who inspected the spot, collected simple soil and blood stained soil from the place of occurrence and prepared memo (Ext. A -10) with sample seal (Ext. A-11). He also collected the 'TIKLI' (small round pieces of metal filled in cartridges) found at the place of occurrence and prepared memo (Ext. A-12) with sample seal (Ext. A -10) with sample seal (Ext. A-11). He also collected the 'TIKLI' (small round pieces of metal filled in cartridges) found at the place of occurrence and prepared memo (Ext. A-12) with sample seal (Ext. A-13 and Ext. A-15). He further collected the empty cartridges and prepared memo (Ext.A-16) with sample seal (Ext. A -17). P.W. 2 Dr. M.B. Pandey, medically examined the injuries on the person of Prem Prakash and prepared the medical injury report (Ext. A-2). Next day i.e. on 22-04-1983, at about 7:00A.M., the Investigating Officer went again to the spot and took the dead body of Dilisara in his possession and got prepared inquest report (Ext. A -18). He further got prepared the sketch of the dead body (Ext. A -19), police form No. 33 (Ext. A -20), police form No. 13 (Ext.A-21) and letter (Ext. A-24) to the Chief Medical Officer, Doon Hospital, Dehradun requesting for postmortem examination of the dead body. P.W.4 Dr. O.P. Mishra conducted the autopsy on the dead body of Dilisara on 22-04-1983, at about 2:30 P.M. and prepared the postmortem examination report (Ext. A -4). He opined that the deceased had died due to shock with haemorrhage caused by gunshot injury. The Investigating Officer prepared the site plan (Ext. A-25). He also got sent the simple soil & blood stained soil and blood stained articles for examination to the Forensic Science Laboratory. During investigation, the gun used in the crime, was recovered and sent to the Ballistic Expert for examination. It is found during investigation that to conceal the evidence of commission of crime appellant Mohan, brother-in-law of appellant Dhanraj, got deposited the gun, used in the crime, with the arm dealer appellant Bishan Lal @ Kishan Lal, on a back date. After recording the statement of the witnesses, and on completion of the investigation, the Investigating Officer submitted the charge sheet (Ext. A -37) against all the three accused I appellants namely, Dhanraj, Bishan Lal @ Kishan Lal and Mohan to the Magistrate (a separate charge sheet (Ext.A-38) was filed against accused Saraswati, but she was acquitted by the trial court). 4. The Magistrate, on receipt of the charge sheet, it appears after giving necessary copies to the accused persons, as required under Section 207 of the Cr.P.C., committed the case to the court of Sessions for trial. 4. The Magistrate, on receipt of the charge sheet, it appears after giving necessary copies to the accused persons, as required under Section 207 of the Cr.P.C., committed the case to the court of Sessions for trial. The trial court, after hearing the Prosecution and the defence, framed charge of two heads against accused I appellant Dhanraj regarding the offences allegedly committed by him, punishable under Section 302 and 307 of the I.P.C. Charge of offence punishable under Section 201 of the I.P.C. was framed against rest of the accused namely, Bishan Lal @ Kishan Lal, Mohan and Km. Saraswati. All the accused persons pleaded not guilty and claimed to be tried. On this, the prosecution got examined P.W. 1 Prem Prakash (informant and injured eyewitness); P.W. 2 Dr. M.B. Pandey (who medically examined the injuries on the person of injured Prem Prakash); P.W. 3 Dhan Bahadur (eyewitness and real brother of accused Dhanraj); P.W. 4 Dr. O.P. Mishra '(who conducted the autopsy on the dead body of Dilisara); PW. 5 Smt. Khemawati (eyewitness and daughter-in-law of the deceased); P.W. 6 Head Constable Mangu Ram Tyagi (who prepared the check report (Ext. A -5) of the F.I.R. and made necessary entry in the general diary, copy of extract 'of which is Ext. A -6); PW.7 Narain Singh (declared hostile); P.W. 8 Constable Surender Kumar (who took the dead body in a sealed cover for postmortem examination}; P.W. 9 Sub Inspector Ram Kishore Sharma (who investigated the crime) and P.W. 10 am Prakash Mani Tripathi (the Ballistic Expert). The entire oral and documentary evidence was put to the accused persons under Section 313 of Cr.P.C. regarding which they denied the same as false. No evidence in defence was adduced on behalf of the accused persons. The trial court, on completion of the sessions trial, found accused / appellant Dhanraj guilty of the offences punishable under Section 302 and 307 of the I.P.C., and after hearing on sentence, sentenced accused Dhanraj to imprisonment for life and rigorous imprisonment for five years, respectively. The trial court further found accused / appellants Bishan Lal @ Kishan Lal and Mohan guilty of offence punishable under Section 201 of the I.P.C. and sentenced each one of them to rigorous imprisonment for five years. However, accused Km. The trial court further found accused / appellants Bishan Lal @ Kishan Lal and Mohan guilty of offence punishable under Section 201 of the I.P.C. and sentenced each one of them to rigorous imprisonment for five years. However, accused Km. Saraswati was not found guilty and she was acquitted of the charge of offence punishable under Section 201 of the I.P.C. Aggrieved by said judgment and order dated 23-11-1987, the Convicts Dhanraj, Bishan Lal @ Kishan Lal and Mohan preferred an appeal, before the Allahabad High Court in the year 1987, which was registered as Criminal Appeal No. 2831 of 1987. The same was received by way of transfer to this Court under Section 35 of the U.P. Re-organization Act, 2000, for its disposal. 5. Before further discussions, it is pertinent to mention here, the ante mortem injuries found on the dead body of Dilisara. The postmortem examination report (Ext. A-4) read with the statement of PW. 4 Dr. O.P. Mishra, discloses following ante mortem injuries on the dead body of the deceased, at the time of autopsy: 1. One big gunshot wound 2 inch x 2 inch x peritoneal cavity deep (wound of entry) (the margin of wound is scortched and loops of small intestine is coming out of this wound). This wound is situated at left side of upper abdomen 3 inch below left costal region in anterior axilliary line. One lump removed from deep surface of this wound. 2. One gunshot wound (wound of exit) 3/4 inch x 1/2 inch x peritoneal cavity deep, on upper part of right side of abdomen, just below the costal margin in anterior axilliary line. 3. Three gunshot wounds (wounds of exit) lying 3 inch apart from each other in right lumber area of abdomen. Two big irregular pellets and 12 small irregular pellets were removed from the muscle planes of right side upper abdomen. The cause of death of Dilisara, according to the Medical Officer, is due to shock with haemorrhage caused by gunshot injury. 6. P.W. 1, Prem Prakash, is informant and injured eyewitness. He states that his father Kul Prasad had two wives - first wife was Tulsi Devi. From Tulsi Devi his father had three sons namely, Bhoop Narain, Dhan Bahadur (P.W. 3) and Dhanraj (appellant). 6. P.W. 1, Prem Prakash, is informant and injured eyewitness. He states that his father Kul Prasad had two wives - first wife was Tulsi Devi. From Tulsi Devi his father had three sons namely, Bhoop Narain, Dhan Bahadur (P.W. 3) and Dhanraj (appellant). The second wife of his father was Dilisara (deceased), who had two sons - one the witness himself (Prem Prakash) and the another is Luxman Prasad. Tulsi Devi, the first wife of father of this witness, died long back. Kul Prasad, father of Prem Prakash (P.W. 1), died in the year 1976. He had some 8-9 Bigha of land, apart from the house. The partition had already taken place during the lifetime Kul Prasad between his sons. However, accused / appellant Dhanraj used to suspect that the land in the name of Dilisara would be given by her only to her real sons. Apart from this, three of the four children of accused / appellant Dhanraj used to get attack of epilepsy, and Dhanraj suspected Dilisara of practicing witchcraft on his family members. P.W. 1 Prem Prakash further states that it was 21-04-1983, the day of 'RAM NAVMI', when there was 'POOJA' (worshiping) and 'HAWAN' (sacrificial ladle) in his house, which completed at about 1 :00 P.M. On the same day, at about 4:00 P.M., one of the accused / appellant Dhanraj's daughter had a fit of epilepsy. At about 6:30 P.M., accused / appellant Dhanraj, armed with his licensed SBBL gun (Ext. 1), came in the house of informant Prem Prakash when he was sitting with his brother Luxman Prasad and fired at him. The witness further states that some .pellets from the- gunshot hit him near his right temple (KANPATTI). In order to save himself, he along with his brother went in a room and locked it from inside. From the window he saw that accused / appellant Dhanraj, thereafter, went to another room where his mother Dilisara was with Khemawati (PW. 5), her daughter-in-law. He (Dhanraj) then fired as hot from his gun at Dilisara, who died on the spot. Above statement of PW. 1 Prem Prakash is corroborated by accused / appellant Dhanraj's real brother P.W. 3 Dhan Bahadur, who has stated that on 21-04-1983 on hearing the sound of first fire he went to the house of Prem Prakash and saw accused / appellant Dhanraj fired second shot at Dilisara. Above statement of PW. 1 Prem Prakash is corroborated by accused / appellant Dhanraj's real brother P.W. 3 Dhan Bahadur, who has stated that on 21-04-1983 on hearing the sound of first fire he went to the house of Prem Prakash and saw accused / appellant Dhanraj fired second shot at Dilisara. This witness has corroborated that while firing at Dilisara, accused / appellant accused the deceased that she practices witchcraft against his daughters. 7. P.W. 5 Khemawati, daughter-in-law of the deceased, is also an eyewitness and she has also corroborated the prosecution story, as narrated by P.W. 1 Prem Prakash and P.W. 3 Dhan Bahadur. The presence of this witness in her house with her mother-in-law is natural and trustworthy. 8. From the statements of the above witnesses, which get corroborated by the medical evidence, charge of offences punishable under Section 302 and 307 of the I.P.C. are fully proved against accused / appellant Dhanraj. Apart from postmortem examination report (Ext. A -4), the medical evidence which corroborates statement of witnesses includes injury report of Prem Prakash (PW. 1) who was examined by PW. 2 Dr. M.B. Pandey, at about 10:40 P.M., on the day of incident i.e. 21-04-1983. Injury report (Ext. A -2) read with statement of P.W. 2 Dr. M .B. Pandey, discloses following injuries on the person of Prem Prakash (P.W. 1) : 1. Multiple gunshot wound~ (wounds of entry) 1/8 inch x 1/8 inch, skin deep over right side of face spread in an area of 4 inch x 3 inch. 2. Abrasion 1/2 inch x 1/4 inch behind the back, right scapular region, above 5 inch of spinal column from injury No.1. According to the Medical Officer, injury No.1 could have been possible by some firearm. He further opined that injury No. 2was simple and could have been possible by some blunt object. 9. Now, we have to examine whether, the charge of offence punishable under Section 201 of the I.P.C. is proved as against rest of the accused / appellants Bishan Lal @ Kishan Lal and Mohan, or not? It is argued by learned counsel for the appellants that in an attempt to prove the charge as against Mohan, the only witness produced by prosecution is P.W. 7 Narain Singh. The said witness has not supported the prosecution story and he was declared hostile. It is argued by learned counsel for the appellants that in an attempt to prove the charge as against Mohan, the only witness produced by prosecution is P.W. 7 Narain Singh. The said witness has not supported the prosecution story and he was declared hostile. As such, it is further argued that there is no evidence on record to prove charge as against accused / appellant Mohan. We have closely examined the statement of P.W. 7 Narain Singh and found that in the examination-in-chief he supported the prosecution story but in cross-examination he dwindled. This witness states that the gun, Mohan was carrying to deposit was a DBBL gun (while, gun' used in the crime is a SBBL gun). In the examination In-chief he is specific about the date when he met Mohan on 26-05-1983, but in the cross-examination he says it was the winter season and the month was that of January or February. In yet another paragraph, the witness says that it was a day of 'KARTIK PURNIMA' (which generally falls in the month of November) when he met Mohan. After he was recalled for cross-examination by the prosecution, P.W.7 Narain Singh states that Ext. 1 is not the gun which Mohan was seen taking to get it deposited. In the circumstances, the role of Mohan in depositing the SBBL gun, in our opinion, does not stand proved beyond reasonable doubt. Therefore, we have no hesitation in holding that the conviction of Mohan under Section 201 of the I.P.C. is bad in law. But, as far as accused / appellant Bishan Lal @ Kishan Lal (an arm dealer) is concerned, from the entry in the register (Ext. 39), it appears that he had shown the SBSL gun, used in the crime on 21-04-1983 deposited on back date i.e. 19-04-1983. In this connection, statement of P.W. 10 Om Prakash Mani Tripathi, Ballistic Expert of Forensic Science Laboratory, is relevant who has testified that cartridge E.C. 1 was fired from SBBL gun No. 495174, which is a licensed gun of accused / appellant Dhanraj. The said statement read with the statement of the Investigating Officer, prove the charge of offence punishable under Section 201 of the I.P.C. as against accused / appellant Bishan Lal @ Kishan Lal. 10. The said statement read with the statement of the Investigating Officer, prove the charge of offence punishable under Section 201 of the I.P.C. as against accused / appellant Bishan Lal @ Kishan Lal. 10. For the reasons as discussed above, the appeal of accused / appellant Dhanraj and that of accused / appellant Bishan Lal @ Kishan Lal is liable to be dismissed, while that of appellant No.3 Mohan deserves to be allowed. Accordingly, the appeal is partly allowed. Conviction of appellant No.3 Mohan and sentence awarded by the trial court against him under Section 201 of the I.P.C. is set aside. He (Mohan) is acquitted of the charge under Section 201 of the I.P.C. However the appeal of accused / appellants Dhanrai and that of Bishan Lal @ Kishan Lal is dismissed. Conviction of appellant Dhanraj under Section 302 and 307 of the I.P.C. and that of appellant Bishan Lal @ Kishan Lal under Section 201 and sentence awarded against them by the trial court is maintained. They are on bail. Their bail is cancelled. They shall be taken into custody forthwith by the court concerned to make them serve out the sentence, awarded against them by the trial court.