JUDGMENT KASHI NATH PANDEY, J. 1. This appeal has been preferred by Anand Singh @ Babu Jingh, Vinod Kumar, Manoj Kumar Tiwari @ Lala and Shyam Behari Tiwari all residents of village Takkipur, P.S. Khakhredu, District Fatehpur against judgment and conviction order dated 1.3.2006 passed by Sri Dinesh Kumar Singh. Special Judge (E.C. Act)/Additional District Judge, Fatehpur. By the impugned order accused Shyam Behari Tiwari, Manoj Kumar Tiwari, Vinod Kumar and Anand Singh @ Babu Singh were found guilty under section 302 read with section 149 IPC and sentenced to imprisonment for life and Rs. 5000/- fine, in default of payment of fine to undergo additional sentence of one month. They are found guilty under section 147 IPC and sentenced to rigorous imprisonment for one year. They are also found guilty under section 148 IPC and sentenced to one year and six months rigorous imprisonment. All the above four accused have been acquitted from the offence punishable under section 504 IPC and accused Gaya Prasad Tiwari has been acquitted from the offence punishable under sections 147, 148,302/149 and section 504 IPC. 2. According to First Information Report lodged by Sri Krishan Chandra Pandey, father of the deceased, that on 12.7.2004 at about 6.30 A.M. in the morning he was present at his Chakki with his son, Dinesh. All of sudden accused Shyam Behari, Manoj Kumar, Vinod Kumar, Anand Singh, Ajay Singh with one unknown person surrounded their Chakki room and began to abuse them. The informant and his son went up on the roof of the room, but on the exhortation of Gaya Prasad son of Bhagwan Deen from the roof of his house, rest of all the above Accused opened fire from their fire arms causing fatal injury to his son Dinesh who fell down, then being helpless the informant came down from the roof and ran away. On above cry, co-villagers rushed to the spot; then all accused person ran away. They were threatening that if anyone will adduce evidence, he will also face the same result. 3. Before above incident on 27.2.2003 at the time of tilak ceremony of his son Mahesh Chandra at about 9.00 p.m. in the night Anand Singh, Shyam Behari and some others had opened fire, resulting in the death of his one relation, causing fatal injury to his son and sister. The same case was pending in the Court. 3. Before above incident on 27.2.2003 at the time of tilak ceremony of his son Mahesh Chandra at about 9.00 p.m. in the night Anand Singh, Shyam Behari and some others had opened fire, resulting in the death of his one relation, causing fatal injury to his son and sister. The same case was pending in the Court. Firstly the accused person pressurized the informant to withdraw from the prosecution and thereafter committed above incident. On the basis of FIR the case was registered at crime No. 51 of 2004 at 7.45 A.M. in the morning on the same day at the police station Khakharedu situated at 4 kilometre distance from the spot. After investigation charge-sheet was submitted against Shyam Behari, Manoj Kumar Tiwari, Vinod Kumar, Anand Singh alias Babu Singh, Ajay Singh and Gaya Prasad Tiwari under sections 147, 148, 302/149 and 504 IPC Ajay Singh was absconding. His case was separated. The case of rest of five accused has been committed to the Court of Session for their trial. Charges were framed against them. Accused person pleaded not guilty and claimed to be tried. 4. Prosecution has examined Krishan Chandra Pandey son of Sri Hardev Prasad Pandey as P.W.1 who has proved Exhibit Ka-1, written report and has supported the FIR version. P.W.2 Pramod Kumar Tripathi is also a eye-witness who has corroborated the prosecution version supporting the statement of P.W.1. P.W.3 Dr. Rajesh Kumar Verma did autopsy of the dead body of deceased Dinesh Chandra Pandey. He has proved post-mortem report Exhibit Ka 2, P.W.4 S.L Radheyshyam Dwivedi has proved inquest report Exhibit Ka-3, Challan lash Exhibit Ka-4, photo lash Exhibit Ka-5, letter to CMO and letter to R.L for post-mortem Exhibits Ka-6 and Ka-7. P.W.5 Jagmohan Singh and home guard Mahaveer Prasad were handed over the dead body in a sealed cover which was given by them to the doctor for post-mortem. P.W.6 S.L. Rakesh Kumar Mishra has proved recovery memo, Exhibit Ka-8 simple and blood stained soil taken from the spot. He has also proved site plan Exhibit Ka-9 and charge-sheet Exhibit Ka-10. P.W. 7 Upendra Singh Yadav was entrusted with investigation on 12.7.2004 who recorded the statement of Uma Shanker Mishra G.D. Writer, Krishna Chandra Pandey informant, Heramani the mother of the deceased and Pramod Kumar Tripathi, the eye-witness of the incident. He has also proved site plan Exhibit Ka-9 and charge-sheet Exhibit Ka-10. P.W. 7 Upendra Singh Yadav was entrusted with investigation on 12.7.2004 who recorded the statement of Uma Shanker Mishra G.D. Writer, Krishna Chandra Pandey informant, Heramani the mother of the deceased and Pramod Kumar Tripathi, the eye-witness of the incident. On the same day he was informed on telephone that the injured Dinesh Chandra Pandey succumbed to death before he could be taken to the hospital for his treatment. Thereafter the investigation was handed over to S.O. Rakesh Kumar Mishra. P.W.8 Uma Shanker Mishra was constable clerk. He has proved chik FIR Exhibit Ka-11 and carbon copy of G.D. Exhibit Ka-12. He amended General Diary by adding section 302 IPC, it is Exhibit Ka-13. Exhibit Ka-14 is the report received from Joint Director, Forensic Science laboratory. U.P. State, Lucknow, according to which the pellet which was sent for examination were similar to standard pellet. They might have been fired from 12 bore fire arm. Exhibit Ka-15 is report .of Joint Director, Forensic Science Laboratory regarding presence of human blood on blood stained soil, cement plaster, pant, shirt, baniyan and blood stained pellets. 5. We have heard the learned Counsel for the appellants and learned AGA for the State as well as learned private Counsel for the complainant, perused the record and considered oral and documentary evidence. 6. Learned Counsel for complainant Mr. V.P. Srivastava raised objection that the appeal should be heard by a Bench of three Judges as originally this appeal was heard by a Division Bench comprising of Mr. Justice Shiv Shanker and Mr. Justiee V.K. Verma. On account of difference of opinion it was laid before another Judge and the third Judge under proviso to section 392 Cr.P.C. requires the appeal to be reheard and decided by a larger Bench of Judges of more experience, therefore, it should be heard by a Bench of three Judges. Learned Counsel for complainant has cited Radha Mohan Singh alias Lal Saheb and others v. State of U.P. and Kaushal Kishore Singh and another v. State of U.P. Sajjan Singh v. State of Madhya Pradesh and Dule Singh and an other v. State• of Madhya Pradesh State of U.P. v. Dan Singh and others Dharam Singh and others v. State of Uttar Pradesh. Dealing with section 392 Cr.P.C. 1973 and section 429 Cr.P.C. 1898 the Hon'ble Apex Court held that when the matter is laid before third Judge, he is not obliged to accept the view of one of the Judges. He is not obliged to mention the reasons for disagreement with either of the Judge of the Division Bench. The third Judge has to examine whole of the case afresh. He is not bound by part of opinions of judges. He is required to examine whole of the case independently. He is not hearing the matter as if he is sitting in three Judge Bench where the opinion of the majority would prevail. Order which follows opinion of third judge is the final order. Order of the Division Bench becomes non-est. 7. According to section 392 Cr.P.C. When an appeal under this Chapter is heard by a High Court before a Bench of Judges and they are divided in opinion, the appeal, with their opinions, shall be laid before another Judge of that Court, and that Judge, after such hearing as he thinks fit, shall deliver his opinion, and the judgment or order shall follow that opinion Provided that if one of the Judges constituting the Bench, or, where the appeal is laid before another Judge under this section, that Judge, so requires, the appeal shall be re-heard and decided by a larger Bench of Judges." Thus there was alternative for the Judges of the Division Bench to require that the appeal shall be re-heard and decided by the larger Bench of Judges. If this option would have been exercised, there can be Bench of three Judges by which the appeal was to be re-heard and decided but this option was not utilized by the• member of the Division Bench but it was laid before a third Judge and the third Judge opted that the appeal shall be reheard and decided by the larger Bench of Judges. For a Single Judge larger Bench means a Bench of more than one Judge. Therefore the Division Bench to which the matter has been assigned by Hon'ble Chief Justice have jurisdiction to decide the appeal under proviso to section 392 Cr:P.c. Therefore this preliminary objection raised by learned Counsel for the complainant is not accepted. 8. For a Single Judge larger Bench means a Bench of more than one Judge. Therefore the Division Bench to which the matter has been assigned by Hon'ble Chief Justice have jurisdiction to decide the appeal under proviso to section 392 Cr:P.c. Therefore this preliminary objection raised by learned Counsel for the complainant is not accepted. 8. In support of the FIR case P.W.1 Krishna Chandra Pandey states that accused Shyam Behari, Vinod Kumar, Manoj Kumar, Anand Singh alias Babu Singh are present in Court. Accused Gaya Prasad is absent and accused Ajay Singh is absconding. They are well known to the informant. They belong to his own village. Gaya Prasad is father of the accused, Shyam Behari. Accused Manoj Kumar alias Lala is real nephew of Shyam Behari Accused Anand Singh and Ajay Singh are real brother. Accused Vinod Kumar Tiwari is cousin nephew of Shyam Behari. All of them are related to each other. 9. On 12.7.2004 at about 6.30 A.M. in the morning the informant and his son Dinesh Chandra were present at their Chakki room. At the same time accused Shyam Behari, Manoj Kumar alias Lala, Vinod Kumar, Anand Singh alias Babu Singh and Ajay Singh with one unknown person surrounded above Chakki room and began to abuse them. The informant and his son went on the roof of the Chakki room to avoid clash, even then, all above accused persons with legal and illegal arms opened fire with intention to kill them. On account of above fire his son Dinesh Chandra fell down at the spot. Accused Gaya Prasad from the roof of his house was exhorting to kill the informant. On his exhortation Shyam Behari with his licensee rifle, Manoj Kumar with single barrel gun of Shyam Behari, Vinod Tiwari, Anand Singh, Ajay Singh and the other unknown accused with their illegal arms were opening fire. Thereafter all the accused went away saying that the informant, Pradhan could be escaped today but they will see him later on. They have also threatened the whole co-villagers who came on the spot for dire consequences, if they will adduce evidence of the incident, they too shall be shot dead. On the date of the incident the informant, Shyam Behari was village pradhan of Takkipur. On account of election of Pradhani in which Anand Singh lost election, there was enmity between them. 10. On the date of the incident the informant, Shyam Behari was village pradhan of Takkipur. On account of election of Pradhani in which Anand Singh lost election, there was enmity between them. 10. On account of the election enmity on 27.2.2003 at the time of ceremony of tilak of his son Mahesh Chandra; Shyam Behari, Anand and some others had opened fire causing injuries to Chunuk Lal, Rani Devi and his son Ramesh Chandra, causing death of Chunuk Lal. The case was tried in which accused person were awarded life sentence and the fine of Rs. 27,000/- each. On the date of this incident the trial of above case was pending and the accused persons were pressurizing on Desh Raj and Bachani to adduce evidence in defence. The informant and his son interfered, therefore, they committed this incident after a short interval. 11. He had taken his son to police station Khakhredu, submitted written report to the police station report. Exhibit Ka1 was written by his son Mahesh Chandra. Besides the informant Shyam Behari, his wife Heeramani Devi, son Akhilesh Chandra, Mahesh Chandra and independent persons Pramod Tripathi and Vimala Kant Pandey have also witnessed the occurrence. 12. The investigating officer visited the spot and recorded his statement. In cross-examination he states that Pramod Kumar Tripathi is son of his distant maternal uncle, his house is situated after 3-4 houses from his Chakki room. 13. On the point of FIR there is crossexamination in detail having omission and contradiction, but FIR is not encyclopaedia of the prosecution case. Only summary of the prosecution case is expected to be mentioned in FIR. It is not expected from him to lodge detailed FIR pointing out each and every instances FIR is mere to initiate the investigation and rest of all things are expected to be collected during investigation and more detailed things are received during trial, therefore it is not very material. Though it has not been mentioned in the FIR that some accused were opening fire from licensee gun and rifle and others were opening fire from country made pistols. The theme of the prosecution case is that due to opening fire by accused person resulting into death of Dinesh Chandra Pandey on account of injuries received from above shot of the fire arms. The theme of the prosecution case is that due to opening fire by accused person resulting into death of Dinesh Chandra Pandey on account of injuries received from above shot of the fire arms. It is not very material that who was the real assailant, responsible for the death of the victim. There were long standing enmity between two parties, therefore, it is not very material that what was the cause of the incident. Even without any cause there can be quarrel, beating and fire. Therefore where there is clear cut evidence regarding the incident of day light murder by fire arms which finds support from the medical evidence there is no reason to go behind the cause of action, therefore, the cross-examination on point of the fact that when the accused person were pressurising some other person for adducing evidence in defence there was no reason for interference by the informant and his son and assault by accused person on them. It is not very material that in FIR all eye-witnesses have not been mentioned. Only on this ground there is no any reason to suspect the veracity of any eye-witness who has successfully without any doubt faced the lengthy cross-examination. The omission and contradiction between the statement recorded by I.O. and statement before Court is of no importance, unless and until it demolishes the theme of the prosecution case. There is nothing like this regarding contradiction and omission which may adversely affect the fund mental of the prosecution case. There is no any dispute regarding the place of occurrence, therefore, it is not very important to discuss about adjoining places from the place of occurrence. The writer of the FIR is also an eye-witness, therefore some error in the FIR on point of mentioning himself to be the writer of the FIR can be ignored. On point of time it has been suggested that the time of occurrence 06.30 in place of 7.00 has been written which has been denied by the wih1ess. He has clearly stated that he was present at Chakki room from half an hour before the incident. His residential house if after 5-6 houses from his chakki room. On account of the incident he could not go to the Court for pairvi of his case on that date. 14. Fatehpur was at the distance of 50 kilometre from his house. His residential house if after 5-6 houses from his chakki room. On account of the incident he could not go to the Court for pairvi of his case on that date. 14. Fatehpur was at the distance of 50 kilometre from his house. He and his son Dinesh had not taken food before the occurrence. After approximately two hours from the incident his son Dinesh died. He informed his advocates regarding the incident. At the time of the incident he was requesting accused persons to stop fire but in the mean time his son was shot and fell down on the roof. He had not received any injury. 15. At the time when the accused persons were pressurizing Desh Raj and Bachani Yadav for witnessing in defence they were not armed. In the meantime due to interference of his son there were some quarrel in between them. They went away. Dinesh and the informant, Shyam Behari came back to their chakki room. After 10-15 minutes accused persons came and began to open fire. When they were at the roof of their chakki room they were surrounded by the accused persons Anand Singh, Manoj Kumar and Shyam Behari, in the south eastern comer Vinod Kumar, Ajay Singh in the north western comer and Shyam Behari. Manoj and Anand Singh from the West. On the point of standing of accused persons, the witness was subjected to cross-examination, but it is not very material as it is not certain that at the time of incident their movement was restricted, within one and two minutes. There were 12-14 fire and the incident was over. It was not possible for the informant to identify firing of each and every accused.• Although he has a licensee of gun but it was in his residential house at the time of incident. He saw his own wife, sons and witnesses Pramod Tripathi and Vimala Kant from the roof of his chakki house. He has stated about their presence to the investigating officer from where the occurrence was witnessed by all witnesses. From the hospital he had informed the S.O. regarding death of Dinesh on the same date. Inquest report of the dead body was prepared and the postmortem was conducted. At the time of fire on Dinesh he came down from the roof when the accused persons went away. From the hospital he had informed the S.O. regarding death of Dinesh on the same date. Inquest report of the dead body was prepared and the postmortem was conducted. At the time of fire on Dinesh he came down from the roof when the accused persons went away. He again came up on the roof after 10-15 minutes. At that time his sons Akhilesh, Mahesh and witnesses Pramod Kumar, Vimla Kant and others were also with him. Just after the incident he had taken his son on marshal vehicle for the police station. While keeping the victim on the vehicle shirt of Mahesh and Akhilesh were blood stained which was seen by the police at the police station but I.O. has not taken their shirt in his custody. There is no alternative suggestion regarding place of occurrence. Mahesh is petition writer, therefore, only on account of non-recovery of blood stained shirt of the brother of the deceased, there is no adverse affect on the prosecution version. At the time of firing, the incident was witnessed by co-villagers from different places at some distance from the place of occurrence. It has been suggested that on the date of incident Desh Raj was present in the Court as a defence witness but on account of absence of his advocate his statement could not be recorded but no documentary evidences with regard to this suggestion has been placed before the witness. He denies the suggestion that the FIR is ante time. He denies the suggestion that he is not the eye witness of the incident. . Gaya Prasad was about 83-84 years old at the time of the incident. He denies the suggestion that accused persons were falsely implicated on 'account of old election enmity. 16. Learned Counsel for the defence argued that the main target of the incident was village Pradhan, P.W.1., Krislma Chandra Pandey but he has not received even an abrasion, whereas he was standing side by side from his son Dinesh who was shot dead by continuous firing of five persons, therefore, his presence is doubtful at the place of occurrence. There was no any reason for the assault on them as everything was normal. When the accused persons were convincing two witnesses to adduce evidence in their defence, there was no reason for the informant and his son, Dinesh to go there and interfere. There was no any reason for the assault on them as everything was normal. When the accused persons were convincing two witnesses to adduce evidence in their defence, there was no reason for the informant and his son, Dinesh to go there and interfere. Till then there was no cause to assemble with any common object to assault the informant and his son. There is no any complaint from the side of those stranger witnesses. No incident took place then and there. Accused persons went to their house and the informant and his son came back to their Chakki. After some interval of time armed with licensed and unlicensed illegal fire arms accused persons surrounded the chakki, then the informant and his son went up on the roof of the chakki house. This story is not probable because when the chakki house has been surrounded by the accused persons then the informant and his son were not in a position to defend themselves. They could defend themselves by shutting the door of their chakki house. They would have not gone upon roof of their chakki house to give opportunity to the assailant to open fire on them. In comparison to be within a chakki house, their presence at the roof of chakki house was more easier for opening fire on them, therefore, the prosecution case does not appear to be probable. When there is long standing enmity and six persons are surrounding the chakki house of the informant, armed with fire arms, and the common object of the unlawful assembly is to kill the informant, the village Pradhan, there is no probability of escape for the village pradhan. There was nothing which could bar the assailant for opening fire on the body of the village pradhan. There was none to defend them, other co-villagers were silent spectator at the distant place on the date of occurrence. Therefore no injury on the body of the village pradhan, informant can be a good ground to presume that he was not the witness of the occurrence. It has also been stated by the witness that he and his son had not taken their food before the time of occurrence. Therefore no injury on the body of the village pradhan, informant can be a good ground to presume that he was not the witness of the occurrence. It has also been stated by the witness that he and his son had not taken their food before the time of occurrence. On this point learned Counsel for the defence argued that semi-digested food has been found in stomach mentioned in the post-mortem report is a sign of the fact that the time of occurrence cannot be 6.30 A.M. It might be a blind murder which could not have been witnessed by anyone in the late night. It has also been stated by P.W.! that there was cot on the roof of the chakki house, which shows that some person has used it to sleep there on the roof. Learned Counsel for the State argued that the deceased might have taken his breakfast, which cannot be said to be taking of food, but it is to be noted that when the incident is of 6.30 A.M. what was the occasion for the victim to take breakfast in the night of 2.00 A.M. to 3.00 A.M. therefore argument does not appear to be probable. It has also been argue a that the person who can explain this point of fact is not alive therefore, on the basis of surmises and conjunctures, no conclusion can be drawn, and the more importance shall be given to the testimony of eye-witness. Expert evidence is a secondary evidence which cannot be given primary importance. There can be several reasons for non digesting of food. In the normal circumstance within 3 to 4 hours the food can be semi-digested but in some abnormal circumstances it may not be digested' for hours and hours. Learned Counsel for defence argued that such abnormal circumstances are to be proved by the prosecution but how the prosecution can prove such circumstance, when the primary witness of this fact had been shot dead. 17. Learned Counsel for the defence also argued that the place of occurrence, where the deceased was standing and the place, from where assailant were firing, the injury must not be as envisaged in postmortem, injury should be semi-circular. It must not be parallel and circular. Again learned Counsel for the complainant and State argued that on the basis of surmises and conjunctures the ocular testimony cannot be brushed aside. It must not be parallel and circular. Again learned Counsel for the complainant and State argued that on the basis of surmises and conjunctures the ocular testimony cannot be brushed aside. How the P.W.1 could be escaped is a question mark?, but it can also be said that due to fear of reaction from co-villagers and coming of the family members of the victim, after falling down of victim, accused persons might have thought to escape away to avoid any counter attack. Considering all above circumstances P.W.1 has to be held fully reliable witness. His testimony has been supported by independent witness who cannot be said to be his direct relation. 18. P.W.2, Pramod Kumar Tripathi states that he is well known with Shyam Behari, Manoj Kumar, Vinod Kumar, Anand Singh, Ajay Singh and Gaya Prasad Tripathi. They all are his co-villagers. One unknown person is also involved in this case from the side of the accused. Be is corroborating the statement of P.W.1. On the cry of accused and informant he went near the place of occurrence. It was 12.7.2004 at the time 6.15-6.30 A.M. He saw that all the five accused and one unknown person were pressurizing Bachani and Deshraj chamar to adduce evidence in defence from their side. Dinesh Chandra Pandey and Krishna Chandra Pandey warned them not to use force against them. If they are willing to be defence witness they may go, otherwise they should not be forced. This was the cause of quarrel between them. In the meantime Krishna Chandra and Dinesh Chandra went to their chakki house. The witness also went to his own house, but after a short interval, Shyam Behari armed with rifle, Manoj Singh with one single barrel gun of Shyam Behari, Anand Singh, Ajay Singh and Vinod Tiwari with illegal fire arms came near the chakki house of the informant and began to abuse them. He saw that Dinesh Chandra Pandey and Krishna Chandra Pandey were at the roof of their chakki house. There were continuous firing from the side of the accused. There was exhortation by Gaya Prasad from the roof of his house stating that the informant and his son must not be escaped. In the meantime he saw that Dinesh was shot by fire and fell down then and there, Krishna Chandra Pandey could not be seen thereafter at the roof. There was exhortation by Gaya Prasad from the roof of his house stating that the informant and his son must not be escaped. In the meantime he saw that Dinesh was shot by fire and fell down then and there, Krishna Chandra Pandey could not be seen thereafter at the roof. This incident was also witnessed by Mahesh Chandara Pandey. Akhilesh Chandra Pandey, Vimla Kant Pandey and Heeramani Devi. 19. In cross-examination he states that Krishna Chandra Pandey, informant of the case is his cousin maternal uncle. He is village Pradhan. The witness is a impartial man. He is not a party man of village Pradhan or opponent. He is residing in the village by birth. He had never gone out for any employment. He was not constructing any Kharanja in the village, neither there was any dispute with the father of Vinod nor he is enmical to Vinod. There is no dispute with Gaya Prasad. His statement was recorded by I.O. on the date of incident on 10-10.30 A.M. in the day at the chakki house. There is some contradiction between the statement recorded by the I.O. and the statement adduced by the witness in the Court but this does not adversely affect the prosecution case. On point of cause of incident, when the accused were pressurising the witnesses, there is no any need for cause of action for any incident between the parties who are inimical to each other. The incident of firing was after a short interval. The statement of the witness before the Court shall be preferred ignoring minor contradiction and omission recorded by I.O. in the statement under section 161 Cr.P.C. The height of ceiling roof of the chakki house is about 10 fit and the boundary of the roof is about 2-2.50 fit. There is no any room on the first floor on the side of north. The room is in the south-east side. Assailant were at the distance of 12-13 steps from the chakki house from where they were opening fire. From the distance of 23-24 steps from the chakki house he has witnessed the occurrence. He stayed on the spot till 20-25 minute after the incident: After Dinesh fell down again he was fired is not known to him. Assailant were at the distance of 12-13 steps from the chakki house from where they were opening fire. From the distance of 23-24 steps from the chakki house he has witnessed the occurrence. He stayed on the spot till 20-25 minute after the incident: After Dinesh fell down again he was fired is not known to him. He had heard that the investigation has been referred to C.B.C.I.D. His statement has not been recorded by C.B.C.I.D. He denies the suggestion that he had not seen the incident. He also denies the suggestion that on account of being relation with Krishna Chandra, he is giving false statement. He also denies .the suggestion that the incident was not committed by the accused persons. He also denies the suggestion that he is adducing false evidence on account of the enmity with accused persons. Thus the statement of the witness appears to be fully reliable. He has been subjected to cross-examination at length but there is nothing in his statement which can be a ground against the veracity of his statement. 20. P.W.3 Dr. Rajesh Kumar Verma was medical officer at District Hospital Fatehpur on 12.7.2004. At about 4.10 P.M. he has conducted autopsy of the dead body of Dinesh Chandra Pandey which was brought to him by constable police 620 Jagmohan Singh and home guard 1104 Mahaveer Prasad posted at P.S. Fatehpur. The deceased was 23 years old. The death. was between 6 to 12 hours old from the time of the post-mortem. Following pre-mortem injuries were found on the dead body : 1. Fire arm injuries size of .5 cm. x .5 cm. over the forehead, cm. above to Rt. Eyebrow, Margin inverted, blackening present shape in circular (Entry wound). 2. Fire arm injuries over the left cheek size in .5 cm. x .5 cm. 2 cm. below to left eye. Margin inverted. Blackening present shape is circular (Entry wound). 3. Fire arm injuries over the Rt. Cheek, 3 cm. lateral to Rt. Eye Margin is inverted. Blackening present and the circular margin (Entry wound). 4. Fire arm Entry wound size in .5 cm. x 5 cm., 2 cm. anterior to Rt. ear, margins is inverted. Blackening present and shape is circular. 5. Fire arm entry wound over the chest. 4 cm. below with Rt. clavicle medial size in .5 cm. x .5 cm. margins inverted, blackening present and shape is circular. 4. Fire arm Entry wound size in .5 cm. x 5 cm., 2 cm. anterior to Rt. ear, margins is inverted. Blackening present and shape is circular. 5. Fire arm entry wound over the chest. 4 cm. below with Rt. clavicle medial size in .5 cm. x .5 cm. margins inverted, blackening present and shape is circular. 6. Fire arm injuries Entry wound, over the left side of chest, 10 cm. below to left, nipple size in .5 cm: x .5 cm. circular shaped, margin inverted and blackening present. 7. Fire arm injuries over the lateral side of chest wall size in .5 cm. x .5 cm., 10 cm. below to Axilla (sic) shape is circular margin inverted. Blackening present. 250 millilitre semi-digested food material was present in the stomach. The small intestine was half filled, large intestine was half filled with gases with faecal matter. The cause of death is shock and haemorrhage due to ante mortem fire arm injuries. Six metalic pellet recovered from the dead body. Handed over to the concerned police constable in a sealed cover. Shirt, baniyan, pant, underwear were handed over to the police. The post-mortem is in' the hand writing and signature of the witness. The death was at about 6.30 A.M. in the morning on 12.7.2004 on account of injuries caused by fire arms. 21. In cross-examination he states that for the last one year he is engaged in the work of post-mortem. He had gone through its training. The injury caused by fire arms are punctured as well as lacerated wound. Membrane were found punctured. The deceased might have taken food at the interval of six hours before his death. He had taken his food at least before 4 hours. The death was at least six hours and utmost 12 hours before the time of post-mortem. Thus it supports the time of occurrence. The Court can take notice of this fact that after receiving fatal injury on his body which has been mentioned in the postmortem report. It is natural that the digestive system was •not in function, as injuries were so fatal on brain that the injured have gone unconscious and stopped functioning of the normal system of the body except heart beating and breathing. It is natural that the digestive system was •not in function, as injuries were so fatal on brain that the injured have gone unconscious and stopped functioning of the normal system of the body except heart beating and breathing. Therefore it can be said that the deceased might have taken food at about 12.00 in the midnight which cannot be said to be uncommon in village area in agricultural season of July. It is also to be noted that there is power cut everywhere in the city as well as village. There is no time of operating chakki. Whenever there is power supply, person concerned began to operate at a chakki, therefore, there is no fix time, any time they may awake and operate ata chakki as their habit. They may take some thing even in the night at late hours while working with the ata chakki for passing time. Therefore on account of semi digested food materials in the stomach and small intestine, there is no any cause of suspicion. On account of half filled large intestine with gases and faecal material, it can be concluded that he had eased in the morning of the incident. It is very uncommon that after easing whole of the large intestine becomes empty, therefore, there is nothing to suspect the time of incident on the ground of post-mortem report. There is nothing to suspect the time of death on account of the statement of the doctor that the time of death can be 4.10 A.M. in the morning on 12.7.2004. There is possibility of blackening when the injuries are inflicted from the distance of 4 to 6 fit. Till now he has conducted 80 postmortems. He is unable to tell that from how many shots ante-mortem injuries on the dead body of the deceased were inflicted. He is unable to tell the distance from where the shots were inflicted, but it can be guessed that injuries might have been inflicted from the distance of 50 feet. He has not mentioned the direction of injuries. He is unable to tell the direction of the injuries. It can be said that injuries might have been inflicted in parallel direction or it may be to some extent up and down. He has not mentioned the direction of injuries. He is unable to tell the direction of the injuries. It can be said that injuries might have been inflicted in parallel direction or it may be to some extent up and down. Considering all above circumstances, on the basis of the surmises and conjectures no conclusion can be drawn, but the conclusion can be drawn on the basis of specific evidence adduced before the Court. 22. P.W.4 S.I. Radhey Shyam Dwivedi was posted as Sub-Inspector, P.S. Kotwali, Fatehpur. On 12.7.2004 on the information of Shamimuddin of district hospital, Fatehpur, after taking papers from Mahaveer, he reached to the mortuary of district hospital. He inspected the dead body of Dinesh Chandra aged 23 years at about 13.30 P.M. in presence of witnesses and began to prepare inquest report which is Exhibit Ka-3 i.e. is in his hand writing and signature. He also prepared relevant paper for the sake of post-mortem of the dead body which is in his hand writing and signature i.e. Exhibit Ka-4 Challan Lash, Exhibit Ka-5 phto lash, Exhibit Ka-6 letter to CM.O, Exhibit Ka-7 letter to R.I. for postmortem. The witnesses of the inquest report, Akhilesh Chandra and Ramesh Chandra are real brother of the deceased. They did not narrate the story of the incident. He denies the suggestion that there is overwriting on the number 3. It is 13. He had noticed injuries of the dead body on the head besides the eyes etc. The dead body was handed over to constable Jag Mohan Singh and Home guard Mahaveer Prasad in a sealed cover condition. 23. P.W.5, Sri Jag Mohan Singh, states that the dead body of Dinesh Chandra Pandey was handed over to him and Mahaveer Prasad on 12.7.04 at about 3.00 P.M. in a sealed cover condition by S.I. Radheshyam Dwivedi with formal papers. They took it to the post-mortem house in sealed cover condition and handed over to doctor. After post-mortem, bundle in sealed cover having clothes of the dead body and a sealed cover envelope were handed over to them by doctor which was submitted by them in the police station khakhredu in the same sealed condition. At the time of evidence, these seated bundles were opened before the Court from which shirt, pant, baniyan and underwear were brought out. At the time of evidence, these seated bundles were opened before the Court from which shirt, pant, baniyan and underwear were brought out. The witness certifies that these blood stained clothes were given to him which is material Exhibit 1-4. They came to Kotwali on 13.7.2004. Thus the witnesses are completing the chain of the prosecution case. 24. P.W.6 S.I. Rakesh Kumar Mishra was posted as Station Officer at P.S. Khakhredu on -12.7.2004. On the basis of the written report submitted by Krishna Chandra Pandey, the case was lodged at crime No. 51 of 2004. under sections 147, 148, 149, 307/504 IPC. The investigation was handed over to S.I. Upendra Singh by him but seeing the gravity of the offence, he had himself taken the investigation. The investigation was initiated by Upendra Singh, S.I. on the spot. At about 12'O' clock by telephone the father of the deceased informed about the death of Dinesh Chandra before he could be given any treatment at the hospital. He himself received the investigation, converted it into section 302 IPC, prepared recovery memo of simple and blood stained pieces. It was taken from the place of occurrence of the roof of the chakki house, kept it in separate dibba in sealed cover, prepared specimen seal, prepared its recovery memo in his hand writing and signature, obtained the signature of witnesses Pramod Kumar Tripathi and Akhilesh Chandra Pandey. Recovery Memo is Exhibit Ka-8, recorded the statement of above witnesses, prepared the site plan on the pointing out of the informant. Site plan is Exhibit Ka-9, recorded the post-mortem report in case diary on 13.7.2004. On 14.7.2004 recorded the statement of eyewitness Mahesh Chandra, Attempted to arrest the accused persons who were absconding. Thereafter obtained N.B.W. and process of section 82 Cr.P.C. on 22.7.2004. On 26.7.2004 proclamation under section 82 Cr.P.C. was made. On 2.8.2004 obtained the process of section 83 Cr.P.C. and executed it on 3.8.2004 against accused Shyam Behari, Vinod, Manoj, Anand Singh and Ajay Singh by attachment. After recording the statement of formal witnesses submitted the charge-sheet against Shyam Behari, Manoj Kumar, Vinod Kumar, Anand alias Babu Singh and Ajay Singh was absconding. Charge-sheet is Exhibit Ka-10. In cross-examination he states that on 12.7.2004 at about 12.05 P.M. he received the investigation of this case. After recording the statement of formal witnesses submitted the charge-sheet against Shyam Behari, Manoj Kumar, Vinod Kumar, Anand alias Babu Singh and Ajay Singh was absconding. Charge-sheet is Exhibit Ka-10. In cross-examination he states that on 12.7.2004 at about 12.05 P.M. he received the investigation of this case. He recorded the statement of witnesses, recovery memo of simple and blood stained pieces collected from the place of occurrence. Inspected the spot. Recorded the statement of other witnesses. Investigation was converted into section 302. from 307 IPC There was no complaint to him from the side of Desh Raj or Bechani Yadav against the accused persons pressurizing them for adducing evidence in defence. He submitted the charge-sheet on 6.8.2004 but till then accused persons could not have been arrested. On 26.8.2004 he was transferred. He had no notice regarding order of investigation by C.B.C.I.D. He did not find any blood stained on the cot. He denies the suggestion that his investigation was not impartial. He denies the suggestion that written report was on his dictation to the complainant. Thus the circumstance expressed by I.O. regarding absconding of accused person is in favour of their guilty conscience. 25. P.W.7 Upendra Singh Yadav began the investigation of the case but after the case was converted into section 302 IPC, the investigation was taken over by S.O. himself. The distance of place of occurrence from the police station is 4 kilometre. He reached to the spot with the Station Incharge at 8.30 A.M. in the morning. Through wireless Senior Police Officers were informed. The witness was subjected to cross-examination on point of contradiction and omission regarding the statement of eye-witnesses recorded by I.O. under section 161 Cr.P.C and evidence adduced before the Court, but that is not very material to otherwise effect the prosecution case. These minor contradiction and omissions are liable to be ignored. 26. P.W.8 constable 237 Uma Shanker Mishra was posted as clerk on 12.7.2004 at P.s. Khakhredu. On the basis of the written report of Krishna Chandra Pandey he prepared chik FIR Exhibit Ka-11 and mentioned the case in General ,Diary on 12.7.2004 at 7.45 A.M., report No. 14, crime No. 51 of 2004 under sections 147, 148, 307, 504 IPC, proved the carbon copy of G.D. after comparing with the original G.D. Carbon copy which is Exhibit Ka-12. The case was converted into section 302 IPC after the death of the injured which was entered into G.D. by constable clerk Virendra Singh. The carbon copy of G.D. is Exhibit Ka-13 which is similar to original G.D. report No. 17 under section 302 IPC is dated 12.7.2004 at 14.40 P.M. On the same date at 23-45 P.M. S.I. Upendra Yadav and S.O.R.K. Mishra came back to the police Station with simple and blood stained pieces collected from the spot' which were kept in sealed cover in two dibbas. He had recorded injuries of the victim in G.D. which was noticed by him on the face of the victim around his eyes. He could not take notice of the other injuries. He denies the suggestion that FIR is ante time. He also denies the suggestion that the FIR was written after consultation with police. He states that as soon as he got written report, began to write chik FIR and entered it into G.D. within half an hour, otherwise suggestion is denied by him. 27. P.W.9 Devi Prasad was posted as constable at P.S. Khakhredu on 19.8.2004. He received the case property of crime No. 51 of 2004 sections 147, 148, 149, 302/307, 504 IPC in sealed cover condition from the police station and after the order of the Court handed over to Sadar Malkhana, Fetehpur which was entered into register of Sadar Mdalkhana. Number was entered on it and again the case property, in sealed cover condition, was returned to him, which was again taken by him to the Court of Judicial Magistrate Khaga, and after the order of the Court it was taken to Forensic Science Laboratory, Lucknow on 20.8.2004. The serial number of Sadar Malkhana was 74/3-04. The case property was delivered to Forensic Science Laboratory at about 11.00 A.M. on 20.8.2004. After considering the whole evidence the Court reached to the conclusion that the prosecution witness examined by the prosecution are corroborating the prosecution case supporting version of each other. All the evidence adduced by prosecution are placed before the accused persons for explanation by them. In their statement under section 313 Cr.P.C., they denies the prosecution allegation in toto alleging all recovery to be false and forged. It has been stated by them that they have been implicated on account of enmity. It is wrong to say that they belongs to one party. In their statement under section 313 Cr.P.C., they denies the prosecution allegation in toto alleging all recovery to be false and forged. It has been stated by them that they have been implicated on account of enmity. It is wrong to say that they belongs to one party. They also challenged impartiality of the investigation. Anand Singh states that he was not present at the spot on the date of occurrence. Gaya Prasad states that Anand is inimical to him from before the time of occurrence. The same thing has been stated by Manoj Tiwari and Shyam. Behari Tiwari. Thus they are saying that the election enmity was between Anand Singh and the informant, so there was no any cause for them for assault on the deceased. 28. With reference to the oral and documentary evidence discussed above and in rebuttal of the argument advanced by the learned defence Counsel, learned Counsel for the complainant submitted State of Madhya Pradesh v. Dharkote alias Govind Singh and others/ in which the Hon'ble Supreme Court has held that there is no requirement of mentioning the names of all witnesses in the first information report. It has also been held that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eye-witnesses, where the eye-witnesses account is found credible and praiseworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. 29. In Lance Nayak Meharaj Singh v. State of U.P. it has been held that FIR in a criminal case is valuable piece of evidence. If the FIR is prompt mentioning the name of actual culprits and the parts played by them, the weapons, if any, used as also the names of the witnesses, if any, it will be held to be natural. If there is delay in lodging the FIR it can be said to be creature of an after thought. There is possibility of colour version of story. Considering the facts of the present case before the Court it is clear that, in the circumstance of assault causing fatal injuries, resulting into death of victim lodging of FIR at 7.45 A.M. regarding the occurrence of 6.30 A.M. at the distance of 4 kilometre police station can be said to be prompt. It has also been made clear that by 8.30 A.M. the Sub-inspector. and Incharge 5.0. It has also been made clear that by 8.30 A.M. the Sub-inspector. and Incharge 5.0. reached on the spot and began the investigation, therefore there is no possibility of any coloured version. L 2005 Crl.L.J. 108 (sq. 2. 1994 (31) ACC 437. - ----------------..~-- ita of U.P. (H.C.) 109 30. In Janak Singh and another v. State of U.P.,3 it has been held that where there is direct evidence of eye-witnesses, then some inconsistency relating to distance between the said witness's statement and medical opinion, held, of no significance. 31. In State of Rajasthan v. Kishore/ it has been held that on account of irregularity or illegality during the course of the investigation it would not cast doubt on the prosecution case. Nor trustworthy and reliable evidence can be ignored. 32. In Hardev Singh v. Harbhej Singh and others,S it has been held that minor discrepancy in evidence of eye-witness as to correct distance from where the accused fired shot cannot be ground to disbelieve eyewitnesses, where accused persons formed the unlawful assembly opening fire on the deceased. Non-interference by witnesses and relative being silent spectator in place of protecting the deceased cannot be a ground for disbelieving their presence. 33. In Chhitar Lal v. State of Rajasthan/ it has been held that conviction can be based on sole testimony of witness if it transpires confidence. It is not very material that the hame of the witness could not have been mentioned in the FIR. Learned Counsel has also cited Birendra Rai and others v. State of Bihar/ in which Hon'ble the Apex Court has held that only on account of non-recovery of pellets from the place of occurrence could not discredit the prosecution case in the face of consistent and reliable ocular testimony. It has also been held that it is not necessary for the prosecution to examine all the witnesses who were present nearby at the tim~ of occurrence. 34. In Suraj Singh v. State of U.P.," it has been held that ifeye-witness's account found to be credible and trustworthy, then medical evidence pointing to alternative possibilities is not to• be accepted as conclusive. It has been held by the Hon'ble Court that witnesses are the eyes and ears 3. 2004 (11) SC 385. 4. 1996 (8) SCC 217 . 5. AIR 1997 1487. 6. 2003 (scq 1377. 7. 2005 (51) ACC 501 (SC). 8. It has been held by the Hon'ble Court that witnesses are the eyes and ears 3. 2004 (11) SC 385. 4. 1996 (8) SCC 217 . 5. AIR 1997 1487. 6. 2003 (scq 1377. 7. 2005 (51) ACC 501 (SC). 8. 2008 (5) A.L.J. 646 (sq. 110 Anand Singh v. S of justice. Hence the importance and primacy of the quality of the trial process. Eye-witnesses' account would require a careful independent assessment and evaluation for its credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the "Credit" of the witnesses; their performance in the witness box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scale for a cumulative evaluation. It has also been held that on account of the fact that eyewitnesses were close relatives of the deceased, cannot be a ground to affect the credibility of their evidence. 35. According to section 141 IPC the assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is to commit any mischief or criminal trespass, or other offence. Under section 146 IPC whenever force or violent is used by an unlawful assembly, or by any member thereof in prosecution of the common object of such assembly, every person of such assembly is guilty of the offence of rioting. According to section 148 IPC whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon• of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. 36. According to section 148 IPC whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon• of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. 36. Thus from the evidence adduced by the prosecution the first is an episode of quarrel between the parties, was over when both have gone towards their houses, but thereafter, at the interval of 10 to 15 minutes all the five persons with one unknown person armed with licensed and unlicensed fire arm surrounded the ata chakki of the victim, Dinesh; and began to open fire pointing out towards Dinesh and his father Sri Krishna Ch,mdra Pandey, but only tate of U.P. (H.C.) ACC Dinesh could have .been shot down. Anyhow his father escaped away, therefore, it is not very material that the shot of which of the accused was responsible for the death of Dinesh. Under section .149 IPC if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. 37. Considering all above circumstances the offence punishable under section 147 IPC is merged under section 148 IPC as the members of unlawful assembly were armed with deadly weapon i.e. fire arms, therefor~, with the help of section 149 read with section 302 IPC all the accused are equally llable for the offence of murder punishable under section 302 read with section 149 IPe. 38. On the basis of above discussion on point of facts and law laid down by the HOI)'ble Apex Court, the Court reaches to the conclusion that the prosecution is held successful to prove its case beyond all reasonable doubt against all the appellants under sections 148,•302 read with section 149IPe. 39. There is no reason to interfere with the judgment and conviction order passed by Sri Dinesh Kumar Singh, Special Judge (E.C. Act)/ Additional District Judge, Fatehpur except the conviction order passed under section 147 IPC which will merge within section 148 IPC. 39. There is no reason to interfere with the judgment and conviction order passed by Sri Dinesh Kumar Singh, Special Judge (E.C. Act)/ Additional District Judge, Fatehpur except the conviction order passed under section 147 IPC which will merge within section 148 IPC. This conviction order passed under section 147 IPC is set aside. Accordingly the appeal is dismissed. The judgment and order dated 1.3.2006 passed by Special Judge (E.e. Act)/ Additional District Judge, Fatehpur sentencing to imprisonment for life and fine of Rs. 5000/- in default of payment of fine to undergo additional sentence of one month under section 302 IPC read with section 149 IPC and sentencing to imprisonment for one year and six months under section 148 IPC is hereby confirmed.