JUDGMENT Hon’ble A.K. Roopanwal, J.—Both these criminal appeals have been filed against the judgment and order dated 13.12.2005 passed by the learned IIIrd Additional Sessions Judge, Ghaziabad in Session Trial No. 821/2004 (State v. Sushil and others), under Section 302/34, I.P.C, 504 and 506, I.P.C. P.S. Haafizpur, District Ghaziabad and S.T. Nos. 822/2004, 823/2004 and 824/2004 under Section 25 of the Arms Act by which the appellants were found guilty for the offences punishable under Section 302, I.P.C. read with Section 34, I.P.C. Section 504 and 506,—I.P.C. and Section 25 of the Arms Act and each of them have been sentenced to death for the offence punishable under Section 302 read with Section 34, I.P.C., two years rigorous imprisonment for the offence punishable under Section 504, I.P.C. and 506, I.P.C. and two years rigorous imprisonment under Section 25 Arms Act and a fine of Rs. 1,000/- and in default of payment of fine further imprisonment for two months. 2. Criminal reference is for the confirmation of the death sentence awarded to the appellants. 3. The brief facts, which gave rise to these appeals are that Complainant Anil Kumar son of Kishan Swaroop of Village Rampur, P.S. Haafizpur, District Ghaziabad and his brother Hari Raj had old litigation with accused Sushil and Babloo sons of Raj Singh of their village. Hari Raj was engaged in the business of milk selling at the time of the incident. Due to fear, the complainant and his father used to accompany Hari Raj. 4. On 8.1.2004 at about 5.45 a.m., the complainant, his father and Hari Raj were going to the house of Nanak Jatav to take milk where they were surrounded by accused Sushil, Babloo and Arvind at the culvert of a drain. They all were having pistols in their hands. The complainant and his father took shelter in the nearby house while Hari Raj was murdered by indiscriminate firing done by the accused persons. In the meantime Satyaveer son of Swaraj Singh, cousin of the complainant also reached there and witnessed the occurrence. Due to fear of the accused, persons of the vicinity closed their doors and some of them ran towards the fields in order to save their lives. In the meantime Satyaveer son of Swaraj Singh, cousin of the complainant also reached there and witnessed the occurrence. Due to fear of the accused, persons of the vicinity closed their doors and some of them ran towards the fields in order to save their lives. The accused left the place of occurrence by challenging that if anybody helps the complainant or gives evidence against them, he would also be given the same treatment as was given to Hari Raj. The occurrence was seen by the witnesses in the full moonlit night. Hari Raj died in front of the house of Des Raj Prajapati. 5. The complainant got the report of the occurrence written from Mohd. Salim son of Tahir Husain of Sultanpur, P.S. Hapur Dehat, went to the police station, Haafizpur where on the basis of this report, F.I.R. was lodged on 8.1.2004 at 6.30 a.m. at crime No. 4/04, under Sections 302, 504, 506/34, I.P.C. The case against the accused persons was registered at G.D. No. 12 at the same time. 6. The investigation of the case was taken up on 8.1.2004 by S.I. Jeevaram Yadav, the then S.O., Haafizpur, District Ghaziabad. He recorded the statement of the complainant Anil Kumar on the same day and got prepared the inquest report of the deceased under his supervision by S.I. Amar Singh and sent the dead body for postmortem. He recovered five empty cartridges of 315 bore and four empty bullets from the place of occurrence. The I.O. also collected the blood stained and plain earth from the place of occurrence and also recorded the statement of the eye-witness, Kishan Swaroop Yadav. He also inspected the site of occurrence and prepared the site plan. During investigation the I.O. recorded the statements of the persons of vicinity and also of the Panchayatnama. The statement of the scribe of the F.I.R. was also recorded by him. He arrested the accused Babloo on 11.1.2004 and on his pointing out recovered a pistol on the same day at 7.30 a.m. 7. After S.I. Jeevaram Yadav, the investigation was taken up by S.I. Vijay Prakash Singh, who succeeded S.I. Jeevaram Yadav as S.O. Haafizpur. He prepared the site plan of the place from where the pistol was recovered on the pointing out of accused Babloo. After S.I. Jeevaram Yadav, the investigation was taken up by S.I. Vijay Prakash Singh, who succeeded S.I. Jeevaram Yadav as S.O. Haafizpur. He prepared the site plan of the place from where the pistol was recovered on the pointing out of accused Babloo. He took the accused Sushil Kumar on police custody remand and on his pointing out recovered a pistol and an empty cartridge on 21.1.2004 at 7.50 a.m. 8. On 19.2.2004 accused Arvind was taken into police custody remand by the I.O. and on his pointing out a pistol with a cartridge in its barrel was recovered on 19.2.2004 at 1.35 p.m. 9. The recovered weapons from the accused persons and the cartridges and the bullets recovered from the place of occurrence were sent to Forensic Science Laboratory for testing. 10. The autopsy on the dead body of Hari Raj was conducted by Dr. Virendra Nath (P.W. 5) on 8.1.2004 at 4.20 p.m. at mortuary Ghaziabad. Half day had passed since the time of the death of the deceased. He was of average built and rigor mortis had established on the upper parts of the body and was passing through the lower parts. Eyes were open. The following ante mortem injuries were found on the dead body : 1. A wound of entry of fire arm discharge of size 3 cm.x 2 c.m. x depth not proved 8 cm. Above the right ear, blackening, tattooing and scorching in an area of 6 c.m. x 7 cm. was present all around the wound. 2. A wound of entry of fire arm discharge 2 cm. x 2 cm. just above the right ear, blackening and tattooing was present. 3. A wound of exit of fire arm of size 3 cm. x 2 cm. connected with injury No. 1 on the left side of head, 4 cm. above the left ear. 4. A wound of exit of fire arm discharge connecting to injury No. 2 of size 3 cm. x 3 cm., 5 cm. above the left ear. 5. A wound of entry of fire arm discharge of size 0.5 cm. x 0.5 cm. x neck deep in front and middle of the neck. Blackening and tattooing was present. 6. A wound of exit of fire arm discharge of size of 1 cm. x 0.5 cm. connecting to injury No. 5 on the lower part of the back of the neck. x 0.5 cm. x neck deep in front and middle of the neck. Blackening and tattooing was present. 6. A wound of exit of fire arm discharge of size of 1 cm. x 0.5 cm. connecting to injury No. 5 on the lower part of the back of the neck. It was 12 cm. below the left ear. 7. A wound of entry of fire arm discharge of size 1 cm. x muscle deep on forearm back 4 cm. below the right elbow. Blackening and tattooing was present on the wound. 8. A wound of exit of fire arm discharge of size 2.5 cm. x 2.5 cm. connecting to injury No. 7 on the outer part of the right forearm. 9. A wound of entry of fire arm discharge of size 5 cm. x 2 cm. on the middle of left forearm, 10 cm. below the elbow. Blackening and tattooing was present. 10. A wound of exit of fire arm discharge of size 6 cm. x 3 cm. x connected to injury No. 9 on the outer part of left forearm, 8 cm. below the left elbow. This was 3 cm. inner to injury No. 9. 11. In the internal examination parietal and temporal bones of both the sides of the head were fractured, brain and its membranes were lacerated. About 100 gms. of semi digested food was present in the stomach. In the opinion of the Doctor the death was due to shock and haemorrhage as a result of ante mortem injuries. 12. After investigation charge sheets were submitted against the accused persons under Sections 302, 504, 506, I.P.C. and Section 25 of the Arms Act. 13. All the accused appellants were charged under Section 302 read with Section 34, I.P.C., Sections 504 and 506, I.P.C. and Section 25 of the Arms Act by the learned Additional Sessions Judge (Fast Track Court No. 4) on 16.7.04. Each of them denied from the charges and claimed to be tried. 14. The prosecution in order to prove its case examined P.W.I Kishan Swaroop Yadav, P.W.2 Anil Kumar, P.W.3 Constable Jai Singh, P.W. 4, S.I. Vijay Prakash Singh, P.W.5, Dr. Each of them denied from the charges and claimed to be tried. 14. The prosecution in order to prove its case examined P.W.I Kishan Swaroop Yadav, P.W.2 Anil Kumar, P.W.3 Constable Jai Singh, P.W. 4, S.I. Vijay Prakash Singh, P.W.5, Dr. Virendra Nath, P.W.6, S.I. Jeeva Ram, P.W. 7, S.I. Bacchu Singh, P.W.8, S.I. Ishwar Chandra Sharma, P.W.9, Constable Brijesh Kumar, P.W. 10, Constable Dharmendra Singh, P.W. 11, Constable Munnu Singh, P.W. 12, Head Constable Chandra Pal Singh, P.W. 13, S.I. Amar Singh Rathi and P.W. 14, Rohtash, Assistant Director, Forensic Science Laboratory, Agra. Defence has examined D.W. 1 Satyaveer. 15. P.W. 1 Kishan Swaroop deposed that on 8.1.2004 at about 5.45 a.m. his son Hari Raj was going to take milk from Nanak Jatav. He and his younger son Anil were accompanying him. Hari Raj was on a cycle carrying milk container. He and Anil were behind him. When Hari Raj reached near the culvert of a drain Sushil, Babloo, Arvind and one unknown person came from the side of culvert and fired at Hari Raj. Hari Raj fell on the northern corner of the culvert and thereafter he ran for about 2-4 steps. All the three accused and one unknown started firing at Hari Raj. After sustaining fire arm injuries, Hari Raj fell in front of the door of Deshraj Prajapati and died. Satyaveer also reached there. He had witnessed the occurrence from the side of wall of house of Surendra, there was moon light and there was no fog. The accused had also challenged that if any one will help Hari Raj, he will also face the same consequences. About two and a half year back, wife of Hari Raj was raped by Sushil and his companion. Hari Raj had opposed this and the informant had lodged a case against them. Sushil was sent to jail and after his release on bail he had fired at Hari Raj and a case was registered against Sushil under Section 307 I.P.C. He did not know whether Sushil was sent to jail or not. On account of this enmity accused had committed the murder of Hari Raj. The inquest on the dead body of Hari Raj was prepared in his presence and he had also signed the inquest memo. The dead body was sealed and sent for post mortem examination. 16. On account of this enmity accused had committed the murder of Hari Raj. The inquest on the dead body of Hari Raj was prepared in his presence and he had also signed the inquest memo. The dead body was sealed and sent for post mortem examination. 16. P.W. 2 Anil deposed that Hari Raj was his elder brother and he used to do business of milk. He and his father used to help him in his work. On 8.1.2004 at about 4.45 a.m. his brother Hari Raj was going to the house of Nanak Jatav for collecting milk. He and his father Kishan Swaroop were also accompanying him. When Hari Raj reached at Pullia Nala, from the left side of the culvert Arvind, Sushil, Babloo and one unknown person came. Arvind fired first shot which hit Hari Raj, after sustaining the fire arm injury Hari Raj fell from the cycle and tried to run away and fell near the house of Deshraj Prajapati. Arvind Babloo, Sushil fired at Hari Raj, they had fired 14-15 shots, Hari Raj died on the spot. The accused had also extended threats and then ran away. In the year 1987 father of Sushil had fired at Harkesh and a case was registered, after that incident accused had committed rape with the wife of Hari Raj and a case was registered thereafter Sushil had fired at Hari Raj and a case was registered. Sushil and Raj Singh had assaulted him and demanded Rs. Two lacs and on account of these enmities the accused had committed murder of Hari Raj. He had scribed the F.I.R. by Mohd. Salib and lodged at the police station. The F.I.R. is Ext. Ka-2. 17. P.W. 3 constable Jai Singh deposed that on 8.1.2004 he was posted as a constable clerk at P.S. Hafizpur, the F.I.R. of case crime No. 4 of 2004 was registered on the basis of a report lodged by Anil Kumar, Chik F.I.R. is Ext. Ka-3 and it was also registered in the G.D. Copy of the G.D. is Ext. Ka-4. 18. PW. 4 S.I. Vijay Prakash deposed that he was posted on 13.1.2004 as Station House Officer, P.S. Hafizpur. He had started investigation of the case. Earlier the station house officer Jeeva Ram Yadav was investigating this case. Ka-3 and it was also registered in the G.D. Copy of the G.D. is Ext. Ka-4. 18. PW. 4 S.I. Vijay Prakash deposed that he was posted on 13.1.2004 as Station House Officer, P.S. Hafizpur. He had started investigation of the case. Earlier the station house officer Jeeva Ram Yadav was investigating this case. On 13.1.2004 a country made pistol was recovered on the pointing out of accused Babloo, he prepared the site plan, which is Ext. Ka-5. On 19.1.2004 he had taken custody remand of Sushil. On 22.1.2004 on the pointing out of Sushil a country made pistol and an empty cartridge was recovered. Its recovery memo is Ext. Ka-8. He prepared the site plan of the place of recovery, which is Ext. Ka-9. A case under Section 25 Arms Act was also registered against Sushil on 19.2.2004. On the pointing out of accused Arvind on 19.2.2004 a country made pistol and an empty cartridge was recovered and a recovery memo Ext. Ka-19 was prepared. The site plan of the place of recovery was prepared which is Ext. Ka-11. After completion of the investigation he submitted charge-sheet under Sections 302, 504, 506, I.P.C. A copy of the charge-sheet is Ext. Ka-12. 19. P.W. 5 Dr. Dhirendra Nath had conducted the post-mortem examination of the deceased. 20. P.W. 6 S.I. Jeeva Ram deposed that on 8.1.2004 he was posted as station hous officer at P.S. Hafizpur, he commenced the investigation of the case. He recorded the statement of Anil Kumar and on his direction S.I. Amar Singh had prepared the inquest memo, Ext. Ka-1. The dead body was sealed and handed over to the constable Nanhey Singh and Brijesh Kumar. He prepared the recovery memo Ext. Ka-14 of five empty cartridges of 315 bore and four bullets. He had also prepared the recovery memo of blood stained and plain earth which is Ka-15. He had recorded the statement of Kishan Swaroop Yadav, he prepared the site plan, which is Ext. Ka-16. On 9.1.2004 he recorded the statements of witnesses of inquest. On 11.1.2004 he arrested accused Babloo and on his pointing out one country made pistol of 315 bore was recovered and a recovery memo was prepared which is Ext. K-17. 21. P.W. 7 S.I., Bachchu Singh deposed that on 22.1.2004 he was posted at P.S. Hafizpur. Ka-16. On 9.1.2004 he recorded the statements of witnesses of inquest. On 11.1.2004 he arrested accused Babloo and on his pointing out one country made pistol of 315 bore was recovered and a recovery memo was prepared which is Ext. K-17. 21. P.W. 7 S.I., Bachchu Singh deposed that on 22.1.2004 he was posted at P.S. Hafizpur. He investigated case crime No. 8 of 2004 under Section 25 Arms Act against Sushil Kumar. He recorded the statement of HCP Chandra Pal and Shushi Kumar. On 23.1.2004 he recorded the statement of S.O. Vijay Prakash and witnesses of recovery memo, namely Balbeer Singh, constable Sudesh Pal, constable Dharmendra Singh. He prepared the site plan, Ext. Ka-18 and submitted charge-sheet against Sushil Kumar which is Ext. Ka-19. He had obtained the sanction for the prosecution which is Ext. Ka-20. 22. P.W. 8 S.I. Ishwar Chandra Sharma deposed that he had investigated case crime No. 6 of 2004 under Section 25 Arms against Babloo. He recorded the statement of Munnu Singh and Babloo. On 21.1.2004 he recorded the statement of S.O. Jeeva Ram Yadav, constable Ashok Kumar. On 28.1.2004 he recorded the statement of HCP Balbeer Singh, constable Sudesh Pal, constable Dharmendra Singh. He prepared the site plan, which is Ext. Ka-21. On 28.1.2004 he submitted charge-sheet against Babloo which is Ext. Ka-22. He obtained sanction for the prosecution which is Ext. Ka-23. 23. P.W. 9 constable Brijesh Kumar had escorted the dead body to the mortuary for the post-mortem examination. 24. P.W. 10 constable Dharmendra Singh deposed that on 11.1.2004 on the pointing out of Babloo a country made pistol was recovered. On the pointing out of Sushil a country made pistol was recovered. On the pointing of Arvind Kumar a country made pistol was recovered. 25. P.W. 11 constable Munnu Singh deposed that on the basis of recovery memo he had registered the case crime No. 6 of 2004 and prepared the G.D. Entries, which are Ext. Ka-24 and 25. 26. P.W. 12 constable Chandra Pal Singh deposed that he had registered case crime No. 8 of 2004 under Section 25 Arms Act against Sushil. He proved the copies of G.D. Entries as Ext. Ka-28 and 29. 27. P.W. 13 S.I. Amar Singh Rathi deposed that on 8.1.2004 he was posted as S.I. P.S. Hafizpur, he prepared the inqeust report on the direction of S.O. Jeeva Ram Yadav. He proved the copies of G.D. Entries as Ext. Ka-28 and 29. 27. P.W. 13 S.I. Amar Singh Rathi deposed that on 8.1.2004 he was posted as S.I. P.S. Hafizpur, he prepared the inqeust report on the direction of S.O. Jeeva Ram Yadav. The inquest report is Ext. Ka-1. He prepared the challan lash, sample seal, letters to R.I. and C.M.O. which are Ext. Ka 30 to 34. The dead body was sealed and handed over to the constables Nanhey Singh and Brijesh Kumar for carrying it to the mortuary. He had also investigated case crime No. 21 of 2004 under Section 25 Arms Act against Arvind Kumar He had recorded the statements of the witnesses and submitted charge-sheet, which is Ext. Ka-35. He had also obtained sanction for prosecution which is Ext. Ka-36. 28. P.W. 14 Rohtash Assistant Director, Vidhi Vigyan Prayogshala, Agra deposed that on 25.10.2004 he was posted at Vidhi Vigyan Prayogshala, Agra. He had examined the recovered pistols and the cartridges recovered from the place of occurrence. According to his opinion recovered cartridges were not fired from the pistols recovered on the pointing out of the accused. 29. D.W. 1 Satyaveer Singh deposed that he had no knowledge that Hari Raj had died, he woke up after hearing the shot, he also reached at the spot, several persons also collected there, Anil was also one of them. Kishan Swaroop also reached there. He could not see who had assaulted Hari Raj. He stated that there was thick fog and visibility was very low. He did not see Sushil, Babloo, Arvind at the place of occurrence. 30. We have heard Shri Dilip Gupta, Shri Vikrant Rana, Shri M.N. Singh, Shri Vinod Kumar Singh, Shri Mahesh Narain Singh and Shri Rajiv Gupta for the appellants and Shri Santosh Tripathi, A.G.A. and Shri R.K. Singh, A.G.A. for the State. 31. The counsel for the appellant challenged the findings of the trial Court on various grounds. The first submission of the counsel for the appellant is that the testimonies of P.W. 1 Kishan Swaroop and P.W. 2 Anil should be rejected because both are interested and chance witnesses. P.W. 1 is father of the deceased and P.W. 2 is brother of the deceased. 32. Secondly, the presence of both eye-witnesses is challenged on the ground that they had no occasion to be present at the time of occurrence. P.W. 1 is father of the deceased and P.W. 2 is brother of the deceased. 32. Secondly, the presence of both eye-witnesses is challenged on the ground that they had no occasion to be present at the time of occurrence. It is further submitted that had they been present at the time of occurrence, the assailants who were in large number and heavily armed would not have spared them. The explanation which they have given for their presence at the time of occurrence is contradictory and not acceptable. It is further contended that according to the prosecution case the occurrence took place at 5.45 a.m. and it must be dark and it was the time when their was heavy fog and their was no sufficient light to recognise the assailants. In order to circumvent this difficulty moonlight was introduced. It is further submitted that there was contradiction in the manner of assault and medical evidence and the Session Judge did not consider this aspect of the matter and wrongly placed reliance on the testimonies of the eye witnesses who were highly interested, partisan and chance witnesses. The eye-witness account is also not corroborated by the ballistic expert report. According to the initial case of the prosecution several persons were present but none of them was examined. It was further submitted that Satyaveer who was relative of the informant had not supported the prosecution case and was examined as defence witness. 33. On the contrary the learned A.G.A. submitted that the prosecution case is proved by the testimonies of two eye-witnesses and corroborated by the medical evidence. The testimony of a witness cannot be rejected on the ground that the witness is highly inimical partisan and chance witness. It is further contended that the witnesses have explained their presence and there is no such contradiction to reject their testimony and the Sessions Judge had rightly relied upon their testimonies. 34. The first submission of the counsel for the appellant that both P.W. 1 and P.W. 2 are interested, inimical and chance witnesses and on this count their testimonies should be rejected has no substance. It is a settled position of law that relationship is not a factor to affect the creditability of a witness. 34. The first submission of the counsel for the appellant that both P.W. 1 and P.W. 2 are interested, inimical and chance witnesses and on this count their testimonies should be rejected has no substance. It is a settled position of law that relationship is not a factor to affect the creditability of a witness. The ocular account though may have been given by father and brother, it does not by itself lose its efficacy or its evidentiary value unless some other factor is brought on record to discredit their creditworthiness. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and reliable. A duty is cast upon the Court to examine their testimonies with due caution and diligence. 35. We have carefully examined the testimonies of two eye-witnesses namely, P.W. 1 Kishan Swaroop Yadav and P.W. 2 Anil Kumar who are father and son of the deceased respectively. Their presence at the time of occurrence is highly doubtful because of the following reasons: firstly, if they were present at the time of occurrence they should have also been assaulted by the accused persons who were large in number and heavily armed. It is also important to mention here that these witnesses had also enmity with the accused. In the first information report it was the case of the informant that accused persons had exhorted and surrounded them but in evidence they stated that deceased was ahead of them and the story of surrounding by the accused was changed. The witnesses also stated that they saved themselves by concealing themselves behind the wall of Surendra. Secondly the presence of source of light for recognising the assailant is also doubtful. 36. The occurrence according to the prosecution took place at 5.45 a.m. and in the report it was mentioned that there was moon light at the time of occurrence and there was no fog. The presence of moon light at that time and absence of fog is deliberately mentioned in the F.I.R., the testimony of P.W. 2 shows that he specifically stated that there was no electric light at the place of occurrence and they witnessed the occurrence in the moon light. The presence of moonlight at 5.45 a.m. in the month of January is doubtful. The presence of moonlight at 5.45 a.m. in the month of January is doubtful. The investigating officer P.W. 6 S.I. Jeewaram accepted that the people living near the place of recovery had stated that they had not seen anybody assaulting the deceased and they were sleeping and woke up hearing the shots. This fact also belies the allegations of the first information report that after the occurrence terror was created and people ran away in the fields to save their life. This supports the defence suggestion that occurrence did take place when no one was present at the place of occurrence and it was a blind murder and the appellants are falsely roped in due to previous enmity. In the F.I.R. the informant has mentioned that a terror was created at the time of occurrence and the villagers had closed their doors and the accused had also challenged them, but according to the investigating officer witnesses had stated that occurrence had taken place while they were sleeping. Thirdly, there is contradiction in the ocular testimony and medical evidence with regard to actual manner of assault deposed by the witnesses. Initially in the F.I.R. accused persons had fired indiscriminately and killed the deceased. P.W. 1 had stated that accused persons had fired at Hari Raj who fell on the kharnja near the culvert and thereafter he ran few steps and the assailants had fired at him and after receiving injuries he fell in front of the door of Desh Raj Prajapati. P.W. 2 deposed that first shot was fired by Arvind and he fell down from the cycle and thereafter he fell near the house of Desh Raj Prajapati and. thereafter Arvind, Babloo, Sushil fired at Hari Raj and he died. According to the site plan prepared by the investigating officer the first shot was fired from the place ‘A’ when the deceased was at place ‘B’ and the distance was 14 steps, but this fact is not corroborated by the post-mortem examination, which shows that all the shots were fired from a very close range. In the post-mortem examination report the doctor had found the shots from close range and there was no dispersal. In the post-mortem examination report the doctor had found the shots from close range and there was no dispersal. The manner of assault given by P.W. 1 that deceased was assaulted before he fell in front of the house of Desh Raj Prajapati is not corroborated by the investigating officer because he had recovered four bullets under the body. This is possible only when the deceased was assaulted while he was lying on the ground. This manner of assault was neither in the F.I.R. nor in the statement of P.W. 1. P.W. 2 has modulated his statement to support the recovery of four bullets under the body and he stated that accused had fired at the deceased as he was lying near the door of Desh Raj Prajapati. Fourthly, the case of the prosecution that first shot at the deceased was fired at place ‘A’ is also not corroborated by the investigation. All the empty cartridges were recovered near the dead body. The investigating officer did not find tail of blood between place ‘A’ in the site plan where first shot was hit and place ‘B’ where the deceased fell. 37. The evidence regarding motive is also exaggerated by the witnesses. It is not disputed that some cases were filed by the side of the deceased against the accused persons. P.W. 1 has stated that accused had committed rape of the wife of deceased and he specifically stated that it is wrong to say that he did not lodge any report against the deceased under Section 376, I.P.C., but P.W. 2 stated that Hari Raj had committed rape of the wife of the deceased and the report was lodged after 40 days and this report was about outraging the modesty. The investigating officer has not prepared any recovery memo of cycle and milk cane although it was mentioned in the site plan. The presence of witnesses at the time of occurrence is highly doubtful because the deceased was carrying a cycle and the witnesses were on foot and the explanation which they have given for accompanying the deceased is also highly improbable. P.W. 1 deposed that he was helping the deceased in his business, the deceased used to collect milk from various houses and used to sell in Hapur. P.W. 1 deposed that he was helping the deceased in his business, the deceased used to collect milk from various houses and used to sell in Hapur. He further deposed that there was apprehension of the life of the deceased and on that account he used to accompany him. But this explanation is not acceptable because he was following the deceased empty handed. P.W. 2 had stated that they were not carrying any weapon with them. P.W. 1 failed to disclose the name of the person whom deceased used to sell milk in Hapur. P.W. 2 had clearly stated that all the brothers used to work separately, he and his father were agriculturist. P.W. 2 had stated that he had moved an application about apprehension of their life but this he had disclosed first time in the Court and he had not filed any application in support of this deposition. P.W. 2 had also stated that accused had not surrounded them. He also stated that accused had surrounded them after firing, if this statement is correct there was no occasion for them escaping unhurt. The testimony of these witnesses is also not corroborated by other source. The prosecution case of recovery of weapon on the pointing out of accused is also not corroborated by the ballistic expert report. The report clearly indicates that recovered cartridges were not fired from the weapon recovered on the pointing out of the accused. There is no corroboration about the participation of the accused by any other source except the testimonies of P.W. 1 and P.W. 2 who are highly inimical, interested and partisan witnesses and their presence, as we have already held, is highly doubtful at the time of occurrence. The Sessions Judge did not consider these contradictions and he only relied that role of firing has been assigned to the accused, which is corroborated by the post-mortem report and there is prompt lodging of the report. 38. For the reasons stated above the appeals are allowed. The judgment and order dated 13.12.2005 passed by the trial Court convicting and sentencing the appellants is set aside. The appellants are in jail. They shall be released forthwith unless wanted in any other case. 39. Reference made by learned Sessions Judge for confirmation of death sentence of the appellants is also hereby rejected. 40. The judgment and order dated 13.12.2005 passed by the trial Court convicting and sentencing the appellants is set aside. The appellants are in jail. They shall be released forthwith unless wanted in any other case. 39. Reference made by learned Sessions Judge for confirmation of death sentence of the appellants is also hereby rejected. 40. Office is directed to communicate this order within two weeks to the trial Court concerned for necessary compliance. Petition Allowed. ———