JUDGMENT 1. - Challenge in this appeal is to the judgment dated February 15, 2003 of the learned Additional Sessions Judge (Fast Track) Alwar, whereby accused appellants Laxmi Narayan and Baburam @ Babu were convicted and sentenced as under : Laxmi Narayan U/s 302 IPC : to suffer imprisonment for life and fine of Rs. 5,000/-, in default to further suffer additional rigorous imprisonment for one year. Baburam @ Babu U/s 302 IPC : to suffer imprisonment for life and fine of Rs. 5,000/-, in default to 'further suffer additional rigorous imprisonment for one year. U/s 3/25 of Indian Arms Act : to suffer rigorous imprisonment for 3 years and fine of Rs. 2,000/-, in default to further suffer additional rigorous imprisonment for three months. All the sentences were ordered to run concurrently. 2. Briefly stated the prosecution case is that on 12.6.2001 at 5.30 PM while Shri Hari Singh (PW 23), SHO, Police Station Shivaji Park, Alwar was on patrolling duty, he received an information that quarrel had taken place between sweepers at 60 Feet Road, Alwar and the injured persons were admitted at General Hospital, Alwar. So, he arrived at the hospital at 7.00 PM and on contacting the Medical Jurist, he came to know that Ramesh S/o Shri Mangal had expired while Mangal was admitted in injured condition. So, he recorded 'Parcha Bayan' of Smt. Geeta W/o Shri Anil Mehtor R/o 60 Feet Road, Alwar wherein she stated that on that day at 3-3.30 PM Laxmi Narayan, Santra W/o Laxmi Narayan started abusing her father-in-law Manglaram while he asked them not to abuse Laxmi Narayan @ Katedi came armed with a gun while Santosh, Ram Singh, Mahesh, Santra and Kailash came armed with: 'Lathi' and 'Farsi'. Then, Laxmi Narayan first fired a gun shot hitting Ramesh and then to Mangal while his other family members Fema, Suresh, Manoj, Savitri, Manju W/o Shri Babu also came armed with 'Lathi'. Her father-in-law Mangal Ram and brother-in-law Ramesh were admitted in the hospital for their gun shot injuries. Ramesh succumbed to his injuries on arrival at the: hospital. The incident was seen by neighbours Suresh shop-keeper, Pratap Chamar, Bittu S/o Pratap, Ramphal S/o Mangal, Sona Devi and Prem Devi. The accused absconded from the place of occurrence on arrival of neighbours. Her father-in-law Mangal Ram and brother-in-law Ramesh were admitted in the hospital for their gun shot injuries. Ramesh succumbed to his injuries on arrival at the: hospital. The incident was seen by neighbours Suresh shop-keeper, Pratap Chamar, Bittu S/o Pratap, Ramphal S/o Mangal, Sona Devi and Prem Devi. The accused absconded from the place of occurrence on arrival of neighbours. On the basis of 'Parcha Bayan', a case u/s 147, 148, 149, 302 and 307 IPC was registered and the investigation commenced. Injured Manglaram was referred to SMS Hospital, Jaipur where he succumbed to his injuries and post-mortem was conducted on 13.6.2001. During the investigation, site map was prepared, necessary memos were drawn and after collecting necessary evidence, two appellants alongwith Mst. Santosh, Mst. Manju and Mst. Shakuntala were challaned. In due course, the case' came up for trial before Additional Sessions Judge (Fast Track), Alwar. Charges u/s 147, 148, 302 and 302/149, IPC were framed against all the accused while appellant Laxmi Narayan was additionally charge-sheeted for the offence u/s 29 and 30 of the Indian Arms Act and appellant Baburam was additionally charge-sheeted u/s 3/25 of the Indian Arms Act. The accused pleaded not guilty and claimed trial. The two appellants were convicted as indicated hereinabove while other co-accused were acquitted. 3. The appellants were examined u/s 313 Cr.PC., the appellants claimed innocence and explained that they were falsely implicated due to enmity. They also explained that the gun recovered was fired by the police in their presence. Balwantrai (DW 1) has been examined as defence witness on the point that on the day of incident, two appellants were present at Bhatinda (Punjab) where appellant Laxmi Narayan was married. 4. The death of deceased Manglaram and Ramesh was indisputably homicidal in nature. As per the post-mortem report of deceased Manglaram, the following ante mortem injuries were found on his body : Multiple round to oval puncture lacerated wounds of size 2 mm to 3.0 mm in diameter with surrounding aureola like red discoloration of size 3/4to 1.0 cm. All puncture lacerated wounds are dispersible in an area of 15.0 cm left side from mid sternal point and 26.0 cm from mid sternal to At. side of chest (zone of desperation) and to heel is 130.0 cm (sic) above. The individual distribution of puncture wounds is described and depicted as under : 1. One at middle of Rt. cheek. All puncture lacerated wounds are dispersible in an area of 15.0 cm left side from mid sternal point and 26.0 cm from mid sternal to At. side of chest (zone of desperation) and to heel is 130.0 cm (sic) above. The individual distribution of puncture wounds is described and depicted as under : 1. One at middle of Rt. cheek. 2. Two on center of chin. 3. One on left side of front of neck. 4. Two in number on front of right side of chest in 3rd Inter costal space. 5. Two on right costal margin & lateral side of upper 1/2of abdomen. The gap between wounds is 4.0 cm. 6. Three in number on left side front of chest in 3rd inter-costal space. 7. One on just above left nipple. 8. One on lobule of left ear. 9. Two on At. arm upper part & medial side of axilla. 10. One on left costal margin on mid clavicular line. Total number of 16 puncture wounds. On dissection finding : (A) All the puncture wounds found crossing the while thickness of covering of stain with ante mortem haematoma as extravasation of blood in the layer of the skin surrounding the puncture wounds. (B) The puncture wound No. (6) found communicating with left thoracic cavity by passing through 3rd inter costal space left side and forming retro setronal haematoma found over internal surface of sternum about 15.0 cm x 10.0 cm x 1.0 cm and the puncture lacerated wound in the pleura and upper lobe of left lung anterior corresponding to the external puncture wound left plural cavity found full of blood about 1 liter partially clotted blood on palpation of lung tissue a small rounded metallic pellet found in the purenchyma of left lung upper lobe which is isolated for Ballistic examination (C) the puncture wound No. (5) communicating with abdominal cavity by piercing the peritoneum & right lobe of liver antero-lateral (right) axed ante morteni haematoma found inferior surface of right lobe of liver around hilum and about one liter partially clotted blood present in peritoneal cavity.All above finding are ante mortem in nature.In the opinion regarding cause of death is haemorrhagic shock brought about as a result of ante mortem injuries to left lung & liver. (ii) All injuries are ante -mgrtem in nature. (iii) caused by a fire arm weapon (shot gun). (ii) All injuries are ante -mgrtem in nature. (iii) caused by a fire arm weapon (shot gun). (iv) the sample of blood & isolated pellet has been preserved sealed & handed over to accompanied police person for serological examination & ballistic examination respectively. 5. As per the post mortem report of Ramesh, the following ante mortem injuries were found on his body : 1. Lacerated wound 1 x 1 cm fore head with red clotted blood with color of abrasion. 2. Lacerated wound 1 x 1 cm Lt. side face near outer corner of Lt. eye with red clotted blood with color of abrasion. 1. Subscalp haematoma present over forehead, there is fracture of frontal bone with tissue staining 1 x 1 at fracture 1 site. Laceration of meninges with bone at place with subdural i haemorrhage all over both hemispheres. One pellet is recovered from brain matter of Rt. side hemisphere. 2. Contusion into orbit then enter into brain matter & meninges crossing the brain matter & meninges at places crossing haematoma (Reddish). All above injuries are ante mortem in nature. In the opinion of the medical jurist, the cause of death is coma due to brain injury caused by fire arm weapon & sufficient to cause death in ordinary course of nature. Duration of injuries are within 24 hours duration. 6. On re-appraisal of the prosecution evidence, it is revealed that the, occurrence took place in front of the house of the appellants on the 60 Feet Road, Harijan Basti, Alwar as shown in the site map Ex.P 23. The place from where the gun was fired is shown as X-2 in the site map which is just inside 3V2 feet high boundary wall of the house of the appellants. Two deceased were shot dead at a place marked X and X-1 which is situated at a distance of 13 feet from the house of the appellants. The house of the deceased Mangal and Ramesh is shown at number six which is at a distance of about 200 steps from the place of the occurrence. Adjoining to the house of the appellants in the north there was a shop facing the road belonging to Suresh as shown in the site map. The prosecution examined as many as 9 eye witnesses to the occurrence, out of them seven belonged to the family of the deceased Mangal and Ramesh. Adjoining to the house of the appellants in the north there was a shop facing the road belonging to Suresh as shown in the site map. The prosecution examined as many as 9 eye witnesses to the occurrence, out of them seven belonged to the family of the deceased Mangal and Ramesh. Smt. Sona (PW 15) is wife of deceased Mangal, Raju (PW 9), Anil Kumar (PW 10) and Suresh (PW 11) are sons of deceased Mangal Ram while Asha (PW 18) is daughter of Mangala Ram and Prem Devi (PW 21) is wife of Suresh (PW 11). Deceased Ramesh was also son of deceased Mangal. The prosecution story is unfolded by Geeta (PW 17) who is daughter-in-law of deceased and on the basis of her 'Parcha Bayan' the FIR was registered at the police station. 7. Geeta (PW 17) stated in her statement that on the day of incident at 3-4 PM in the evening, she was present at her residence. As her husband was' abused by accused Laxmi Narayan, so her father-in-law had told Anil that he could make Laxmi Narayan understand and ask him not to abuse. On hearing the noise, she alongwith Asha, Anil, Suresh, Sona, Prem and Raju went to the place of occurrence, there they saw that stones were being pelted by Manju, Santra, Santosh and Babu. Then Babu went inside the house and came out with a gun and fired at Ramesh which hit him. Then her father-in-law Mangal tried to lift Ramesh as he fell down. On this Laxmi Narayan snatched the gun from Babu and fired at Mangal. Ramesh sustained bullet injuries on his head while Mangal sustained injuries at his chest. Both of them sustained injuries just in front of the shop of Suresh. Then they were taken to the hospital in a Tempo where Ramesh expired while her father-in-law was sent for treatment to Jaipur. She had given `Parcha Bayan' (Ex.P 22) to the police. The testimony of Geeta (PW 17) has also been corroborated by Raju (PW 9), Anil Kumar (PW 10), Suresh (PW 11), Smt. Sona (PW 15), Asha (PW 18) and Prem Devi (PW 21). The other eye-witness Suresh Chandra (PW 1) was declared hostile as he deposed that when it was fired, he had already retired from the shop to his house as the stones were being thrown by both the sides. The other eye-witness Suresh Chandra (PW 1) was declared hostile as he deposed that when it was fired, he had already retired from the shop to his house as the stones were being thrown by both the sides. Likewise, Tara Chand (PW 2) was also declared hostile as he did not support the incident of firing in his presence. 8. Dr. Kishan Lal Dhanak (PW 3) conducted post mortem of deceased Manglaram on 13.6.2001 at SMS Hospital, Jaipur where he had succumbed to the injuries. As per the post-mortem report (Ex.P 3) the doctor had collected sample of isolated pellets found in the dead body. Likewise, Dr. Amar Singh Rathore (PW 16) who conducted post mortem of deceased Ramesh and prepared post-mortem report (Ex.P 21) also collected sample of pellets from the dead body. Muzzle loading double barrel gun allegedly used in the crime belonged to appellant Laxmi Narayan and the gun alongwith the licence was recovered vide recovery memo (Ex.P 30) on 27.6.2001 from the house of Laxmi Narayan, of course on the basis of his disclosure statement as well as that of his son Baburam as both were arrested on 26.6.2001 from Bhatinda (Punjab). Alongwith the aforesaid gun 'Chharre' (small pellets), gun powder and percussion caps used for firing a Muzzle loading gun were also recovered vide recovery memo Ex.P 31. Mangal Ram (PW 19) 'Motbir' has been examined on the point of the aforesaid recovery apart from the Investigating Officer, Hari Singh (PW 23). Ram Kishan (PW 5) Malkhana In-charge has been examined for keeping the seized articles in the police station and despatching the same to FSL for examination vide 'Malkhana Register' Ex.P 6-A. Rohitash (PW 13) and Suresh Kumar (PW 7) police constable were examined on the point that they carried these seized articles ,for FSL examination and obtained receipts from FSL, Ex.P 11 and Ex.P 10. respectively. On examination by ballistic expert, the Double Barrel Muzzle loading gun was found to be in serviceable condition and the pellets, percussion caps and gun powder seized were found to be the articles which could be used in such a gun. The gun was found to have been fired but no definite time could be stated about its last fire. The gun recovered in the case indisputably belonged to the appellant Laxmi Narayan who was its license-holder. The gun was found to have been fired but no definite time could be stated about its last fire. The gun recovered in the case indisputably belonged to the appellant Laxmi Narayan who was its license-holder. Moreover, the appellants have taken a plea in their explanation u/s 313 Cr.PC. that the gun was fired by the police so as to show that the gun was not in fact used by them in the crime. A question has also been asked from Motbir (witness) to the recovery memo of the gun Mangal Ram (PW 19) about the gun being fired by the police and he has replied in affirmative. But this question has not been asked to the Investigating Officer Hari Singh (PW 23). Apart from this, there was no occasion to test fire the gun at the time of recovery by the police as alleged. Moreover, the fact of recovery of double barrel Muzzle loading gun alongwith the usable articles such as gun powder, percussion caps and pellets from the appellants is a strong circumstance which corroborates that the two deceased could be shot dead with the gun recovered and the pellets recovered from the body of the deceased also correspond to articles recovered and further correspond to the nature of gun shot injury sustained by the two deceased. 9. In support of the appeal, learned counsel for the appellants submitted that the case is based on the eye witnesses account and the same runs counter to the narration in first information report (Ex.P 22) wherein it was stated that the two deceased were shot dead by appellant Laxmi Narayan while all the eye witnesses including informant Geeta (PW 17) who are 1 members of the family of the deceased have come out with the version that the gun was brought by Babu and who shot at Ramesh deceased and when Mangla Ram deceased tried to support falling Ramesh, the gun was snatched by appellant Laxmi Narayan and he then shot at Mangla Ram deceased. Therefore, according to the learned counsel for the appellants, the i prosecution has failed to prove the manner in which occurrence has taken place especially in the absence of testimony of independent witnesses, who have been declared hostile. 10. The seven eye witnesses examined in this case belonged to the family of the two deceased persons. Therefore, according to the learned counsel for the appellants, the i prosecution has failed to prove the manner in which occurrence has taken place especially in the absence of testimony of independent witnesses, who have been declared hostile. 10. The seven eye witnesses examined in this case belonged to the family of the two deceased persons. Their presence was natural at the place of occurrence as their house was nearby and on hearing noise, it was quite natural to reach at the place of occurrence. Names of eye witnesses Prem Devi (PW 21), Smt. Sona Devi (PW 15) are also mentioned in the 'Parcha Bayan' (Ex.P 21) which was lodged first in time by Smt. Geeta (PW 17) at 7.30 PM to the police officer who recorded 'Parcha Bayan'. almost within four hours of the incident. Geeta (PW 17) has been confronted with her earlier statement in 'Parcha Bayan' in her cross examination but she has not given any explanation as to why she did not name Baburam as the person who brought the gun from inside and first he fired hitting Ramesh and then the gun was snatched from him by accused Laxmi Narayan who fired hitting Manglaram (deceased). Therefore, the deposition of these eye witnesses to the extent of aforesaid improvement do not appear to depict the true and spontaneous version of the incident to the extent of role assigned to appellant Baburam. The possibility of such an improvement being an afterthought, cannot be ruled out in the , absence of there being corroboration in the first information report which is of immense use so as to curb the tendency of over implication in the wake of emotional set back as in the present case on account of murder of two of their family members. On closely scrutinising the testimony of such of the witnesses in the facts and circumstances discussed above, the prosecution version of the incident to the extent of the aforesaid improvement is liable to be discarded in the wake of spontaneous declaration of the name of the accused committing murder in the FIR lodged without any loss of time, as indicated by the Hon'ble Apex Court in Chandra Mohan Tiwari v. State of M.P., AIR 1991 SC 891 . 11. 11. The duty of the court is to visualise the situation at the time of occurrence of incident while appreciating the evidence and to separate truth from falsehood and the chaff from the grain even with regard to the interested witnesses and that the prosecution case is not to be thrown over board if the substratum of the prosecution stands proved, as observed by the Hon'ble Supreme Court in State of Haryana v. Tek Singh & Others, AIR 1999 SC 1742 , as under : ''Further, the Court while appreciating the evidence ought to have kept in mind and visualised the situation at the time of occurrence of the incident. Evidence of the witness should be appreciated by keeping ground reality and fact situation in mind. It is also established law that even with regard to the interested witness, it is the duty of the Court to separate truth from falsehood and the chaff from the grain. In view of the close relationship, witnesses naturally would have a tendency to exaggerate or add facts but while appreciating the evidence exaggerated facts are to be ignored unless it affects substratum of prosecution story. In the case of State of U.P. v. M.K. Anthony, AIR 1985 SC 48 , this Court pointed out that while appreciating the evidence of a witness, the approach must be whether evidence of the witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies, trivial matters not touching the core of the case, hyper-technical approach in persuasion of the evidence should be avoided. The Court pertinently observed (at p. 55 of AIR) : "Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross-examination is an unequal duel between a rustic and refined lawyer." 12. In view of above guidelines, on evaluation we find that the FIR in the case was lodged without loss of time. Cross-examination is an unequal duel between a rustic and refined lawyer." 12. In view of above guidelines, on evaluation we find that the FIR in the case was lodged without loss of time. The ocular testimony of the witnesses stands corroborated from the medical evidence as well as the evidence of the ballistic expert on the point of examination of the weapon and firing material recovered at the instance of appellant Laxmi Narayan (license holder), corresponding with injuries and the pellets recovered from the body of the deceased to the extent of culpability of accused Laxmi Narayan. But we do not find any convincing and consistent evidence on the point of participation of accused Baburam in causing fire injury to deceased Ramesh. 13. On analysing the evidence adduced at the trial by the yardstick of probabilities and its intrinsic worth, we find that the prosecution is only able to establish beyond reasonable doubt that appellant Laxmi Narayan is responsible for committing murder of deceased Ramesh and Manglaram. Therefore, the conviction of appellant Laxmi Narayan recorded by the trial court is liable to be confirmed while the offence u/s 302 IPC and 3/25 of the Indian Arms Act against Baburam @ Babu is not proved beyond reasonable 5 doubt and hence appeal to that extent deserves to be admitted. 14. For these reasons, we dispose of instant appeal in the following terms : (i) We allow the appeal of appellant Babu Ram @ Babu and acquit him of the charges under sections 302 IPC and 3/25 Arms Act. Appellant Babu Ram @ Babu, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case. (ii) Appeal of appellant Laxmi Narayan fails and is hereby dismissed. Conviction and sentence awarded to appellant under section 302 IPC are maintained. (iii) The impugned judgment of learned trial court stands modified as indicated above. Appeal of B Allowed but that of L Dismissed. *******