JUDGMENT M.A. Siddiqui, J. 1. Since both the appeals arise out of common judgment, hence they are being decided by this common judgment. 2. These appeals have been preferred by the Appellants feeling aggrieved against the judgment dated 29.03.2003, delivered by the then Addl. Sessions Judge, Nawgaon, District-Chhatarpur in Sessions Trial No. 67/02 convicting the accused-Appellants under Section 302/ 149 of IPC sentencing them to life imprisonment with fine of Rs. 1,000/-,in default of payment of fine amount, Appellants to undergo further S.I for one year , Under Section 395 IPC sentencing them to suffer rigorous imprisonment for five years and fine of Rs. 1,000/-, in default of payment of fine Appellants have to further undergo S.I. for one year, Under Section 323/ 149 IPC R.I. for one year, Under Section 25(1)(a) of Arms Act R.I. for one year and fine of Rs. 500/-, in default of payment of fine, Appellants to further undergo S.I. for three months and Under Section 27 of the Arms Act, Appellants were sentenced to R.I. for one year and fine of Rs. 500/-, in default of payment of fine, Appellants to further undergo S.I. for three months. 3. Undisputedly, total six persons including Appellants were prosecuted, out of which two persons Mahipal Singh and Manvendra Singh were acquitted by the trial Court whereas Santosh Singh and Tinku @ Farari Raja died during trial in an encounter with the police so only the present Appellants were convicted by the trial Court. 4. In nut shell the prosecution case is that on 8.10.2001 at about 4 PM, when complainant Rajesh Dixit (PW.1) was coming from his school to his house at village-Urdmau, as soon as he reached to the western main gate of his house, he saw that from the eastern side seven persons entered into the house. He saw from the side of the door that his uncle Munna @ Jagdish was sitting in the verandah and before him one Rampal was sitting on a chair, these seven persons went near Munna @ Jagdish and out of them, one person pointed a Katta (country made pistol) on the chest of Munna @ Jagdish and another person pointed another Katta on Rampal and asked him that if he does not belong to the house then option was given him to go away. Thereafter the person who was pointing the Katta towards Munna @ Jagdish fired it, Munna @ Jagdish tried to escape from there, but bullet hit him on the stomach, then another miscreant fired at the head of Munna @ Jagdish, Munna @ Jagdish fell down due to injuries sustained by him and died on the spot. Then four persons trespassed the house and started beating ladies and 5-6 rounds were fired. Complainant Rajesh was frightened and he did not move from the hidden place, side of the door and remained there. Then after 10 minutes all four persons came out , when they came nearer to him then he recognized that out of them three persons were Santosh Singh (since dead), Balvir Singh (Appellant in Criminal Appeal No. 1044/05) and Tinku Raja (since dead). All three persons looted one 315 bore rifle and one 12 bore gun of Munna @ Jagdish and a muzzle loading gun of father of the complainant and they came out. They were saying that "is there any Pandit who can have the courage to come in front of Thakurs", thereafter using filthy language they went towards Talaiya. As miscreants have left the place, Rajesh (PW.1) went inside the house, he saw that Munna @ Jagdish was dead due to gun shot, then he saw that in the courtyard his aunt Lajjadevi (PW.8) was lying smeared in blood and there was bleeding in her head. Another aunt Premvati (PW.2) was also injured and his cousin Chanda (PW.6) was also injured. On being asked they told that four miscreants have beaten them and have looted three guns and the miscreants can be recognized by them. 5. Rajesh (PW.1) reached PS-Garhimalhara and lodged named report against three accused and Ors. vide Ex.P/2 on which Crime No. 133/2001 under Sections 396, 302 and 307 IPC was registered. On the information given by Rajesh (PW.1) Marg vide Ex.P/1 was also registered. The police made the inquest and sent the body of Munna @ Jagdish for postmortem, postmortem was conducted by Dr. R.G. Kotia (PW.12). Injured persons were sent for MLC. Dr. L.C. Chourasia (PW.7) examined the injured persons. Appellants Balvir and Kallu were arrested, they made confessional statements regarding Kattas, and Kattas were recovered from them before the witnesses. The police made the inquest and sent the body of Munna @ Jagdish for postmortem, postmortem was conducted by Dr. R.G. Kotia (PW.12). Injured persons were sent for MLC. Dr. L.C. Chourasia (PW.7) examined the injured persons. Appellants Balvir and Kallu were arrested, they made confessional statements regarding Kattas, and Kattas were recovered from them before the witnesses. Test Identification Parade (hereinafter referred to as "TIP") was conducted for identifying Kallu and Balvir by K.P. Patel (PW.5) Naib Tahsildar in which Rajesh (PW.1), Premwati (PW.2), Chandraprabha (PW.6) and Rampal identified Kallu @ Prabhat Sharma as miscreant vide Ex.P/4,and Balvir was identified by Premwati (PW.2), Rampal and Chandraprabha (PW.6) vide Ex. P/5. Dr.R.G. Kotia (PW.12) found two gun shot injuries one in the stomach and another on the head. He found that both the injuries were fatal to life and were sufficient to cause death in the ordinary course of nature and death was homicidal. 6. After due investigation, Appellants along with other persons were charge sheeted and the case came for trial after committal before 2nd Addl. Sessions Judge, Chhatarpur where on 19.7.2002 charges were framed and afterwards the case was sent to Nawgaon Court where learned Addl. Sessions Judge amended the charges on 22/03/2004 against the accused persons by which each of the Appellant has been charged under Sections 302, 396, 307 of IPC and Section 25(1)(a) and Section 27 of the Arms Act. 7. Accused persons abjured the guilt. The defence of Balvir Singh was that he is well known figure and was having enmity with the family of Jagdish and injured persons so he has been falsely implicated in this case. The defence of Kallu was that he has been also falsely implicated in the case. In defence, Brajraj Singh (DW.1), Baliraja (DW.2), Ganesh Sharma (DW.3), Manish Shankar (DW.4), Rasool Mohd. (DW.5) and Omprakash Shivhare (DW.6) were examined and several documents were also exhibited in defence. 8. Trial Court, on the evidence of Rajesh Dixit (PW.1), Premwati (PW.2), Chandraprabha (PW.6) and Lajja Devi (PW.8) as eye-witnesses, K.P. Patel (PW.5) as Officer of TIP, Dr. L.C. Chourasia (PW.7) as witness of MLC of injured witnesses, Dr. (DW.5) and Omprakash Shivhare (DW.6) were examined and several documents were also exhibited in defence. 8. Trial Court, on the evidence of Rajesh Dixit (PW.1), Premwati (PW.2), Chandraprabha (PW.6) and Lajja Devi (PW.8) as eye-witnesses, K.P. Patel (PW.5) as Officer of TIP, Dr. L.C. Chourasia (PW.7) as witness of MLC of injured witnesses, Dr. R.G. Kotia (PW.12) who had performed the postmortem of deceased Jagdish @ Munna, Mahendra Singh (PW.14) Sub-Inspector of Police and Investigating Officer and Ramsanehi (PW.11), witness of seizure, after rejecting the defence version of false involvement, convicted the accused-Appellants as aforesaid against which these two appeals have been filed by the Appellants on the ground that Appellants have been falsely implicated in the case. Balvir Singh has been falsely implicated due to old enmity and Appellant Kallu was not known and on wrongful identification he has been held guilty and no description of miscreants was given in Ex.P/1 and P/2 about Kallu. He has been wrongly convicted on the illegal identification parade. The FIR is ante dated, no compliance of Section 157 Code of Criminal Procedure has been made. No names in the inquest were disclosed before the police, the case of prosecution was very much doubtful. Accused persons were arrested much earlier and they were kept in illegal custody, they were shown to the witnesses. So as to identification parade there are material contradictions in the statements of prosecution witnesses. Defence version has not been given due weightage and has been rejected superficially. 9. We have heard learned Counsel for both the parties and perused the original record of the trial Court. 10. Learned trial Court has relied on the evidence of prosecution witnesses. We take the evidence into consideration. 11. Rajesh Dixit (PW.1) stated that he knew both the Appellants Kallu and Balvir. His paternal uncle Munna @ Jagdish was there in the house when he came back at about 4 PM from the school. When he reached at the western gate of the house, he saw that seven persons were coming from eastern gate, out of them four persons were not known to him. At that time his uncle Munna @ Jagdish was sitting on a wooden plank in verandah and before him Rampal Rawat was sitting. When he reached at the western gate of the house, he saw that seven persons were coming from eastern gate, out of them four persons were not known to him. At that time his uncle Munna @ Jagdish was sitting on a wooden plank in verandah and before him Rampal Rawat was sitting. All seven persons entered into the premises of the house and out of them some persons went inside and accused Balvir pointed a Katta on the chest of Munna @ Jagdish and Santosh Singh (since dead) pointed a Katta towards Rampal Yadav, and they asked Rampal to go away by using filthy language and asked him to run away, so he left the premises. Rajesh (PW.1) further stated that he came near the door and hide himself behind the door, he saw from there that accused Balvir used filthy language against Munna @ Jagdish, Munna tried to run away but he could run only two steps then Balvir fired from Katta which hit him on his chest, he fell down and Santosh Singh (since dead) fired on the head of Munna, then four persons out of them went inside the house from where ladies started shouting, three persons came out, they looted one 315 bore rifle , one 12 bore gun and a muzzle loading gun inside the house and went away. When they were going, Rajesh (PW.1) stated that he identified that they were Santosh Singh (since dead), Tinku Raja (since dead) and Appellant Balvir, and the fourth person who came out was Appellant Kallu. They used filthy language and challenged that is there any Brahman who can oppose Thakurs. Then they ran away towards Talaiya. Rajesh (PW.1) further stated that he went inside and saw that Munna was lying dead, his head was broken and blood was oozing out . Then he went inside the house, he saw that ladies of the house Premvati, Lajjadevi, Chanda were injured and blood was coming out of their bodies. They also narrated that the miscreants have killed Munna @ Jagdish and have looted the guns together with cartridges. Afterward he came out from his house and took Chaukidar Babulal and came to PS-Garhimalhara where he reported the matter to police. Police registered Marg intimation vide Ex.P/1 and FIR (Ex.P/2). Police later on came on the spot and prepared the spot map vide Ex.P/3. Afterward he came out from his house and took Chaukidar Babulal and came to PS-Garhimalhara where he reported the matter to police. Police registered Marg intimation vide Ex.P/1 and FIR (Ex.P/2). Police later on came on the spot and prepared the spot map vide Ex.P/3. After about one month he was asked to identify the accused in identification parade at Sub-Jail Nawgaon where he identified Kallu by putting his hand. He identified that Kallu was the person who had committed the incident with other accused persons. TIP memo was prepared vide Ex.P/4. Witness stated that he was having enmity with the accused as his uncle killed co-accused Santosh Singh's father. 12. Premwati (PW.2) corroborated the statement of Rajesh (PW.1) saying thereby that she was in the courtyard and her Devar Munna was in the verandah, she heard the sound of gun fire. She came out along with her daughter Chandraprabha. Lajjawati was there in the courtyard. She saw that smoke was coming out from Katta and both Appellants Balvir and Kallu were having Kattas and Munna was lying and blood was coming out from his head. Premwati further stated that accused persons used filthy language against her and pointed Katta towards her and asked her to go inside, Katta was pointed by accused Balvir and Kallu pointed Katta on Chandraprabha. Both came in the courtyard and two other persons were also with them. Two persons beat her Devrani by the butt of Katta. At that time, his son Pankaj came out, he was also threatened. Chandraprabha asked them to leave, two persons out of them, went inside the room of Munna and took one 12 bore gun and another gun. Meanwhile this witness set on the edge of verandah then Appellant Balvir rebuked her and beat her with Katta on her head. During the course of beating, Katta fell down, when her daughter Chandraprabha picked up Katta, it was snatched away from her and she was also threatened. The miscreants went inside the house and fired on the lock of Mathura Prasad's room and his muzzle loading gun was taken out and then all miscreants went away with their guns. After few minutes, Rajesh (PW.1) came inside the house and the incident was narrated to him by this witness, then Rajesh went to lodge the report alone with Babulal, Chowkidar. After report, she was also examined medically. After few minutes, Rajesh (PW.1) came inside the house and the incident was narrated to him by this witness, then Rajesh went to lodge the report alone with Babulal, Chowkidar. After report, she was also examined medically. After few days, she was called for identification of the accused, she identified Kallu @ Prabhat vide Ex.P/4 and after one month she identified Balvir vide Ex.P/5 in Sub-Jail of Nawgaon. 13. Pramod Dixit (PW.3) supported the version by telling that incident was narrated to him by Rajesh and the ladies. Chandraprabha (PW.6) supports the version of prosecution saying thereby that she identified both Kallu and Balvir and stated that they came with other persons and murdered Munna. When she was in the courtyard with Lajjadevi and Premvati, she was beaten by miscreants including Balvir and Kallu. She was medically examined. She identified Appellant Kallu vide Ex.P/4 in Sub-Jail, Nawgaon and Balvir afterwards vide Ex.P/5 before the Naib Tahsildar. 14. Lajjadevi (PW.8) identified both Kallu and Balvir in the Court. She also supports the version of other witnesses by saying that she was also beaten and she got injuries with Premvati and Chandraprabha. She was medically examined. K.P. Patel (PW.5) stated that on 6.11.2001 when he was posted as Naib Tahsildar and Executive Magistrate in Maharajpur, he held the TIP of accused Prabhat Sharma @ Kallu, R/o Kulpahar, District-Mahoba (U.P) and witnesses Rajesh, Premvati, Chandraprabha, Rampal and Swamidin identified this Appellant Kallu with other persons. He prepared memorandum Ex.P/4. He further stated that on 24.12.2001 he held TIP of accused Balvir, R/o Urdmau who was identified by Premvati, Rampal and Chandraprabha, memorandum (Ex.P/5) was prepared. Kamlesh Tiwari (PW.9) has stated that Balvir was arrested from Mahoba Railway Station and 12 bore Katta and cartridges were seized by the police vide seizure memo (Ex.P/15). Balvir was arrested vide Ex.P/16. Ramsanehi (PW.11) has stated that Kallu was arrested from Mahoba. He gave confessional statement under Section 27 of Evidence Act Ex.P/17 to police. A Katta of 315 bore was seized from his possession by the police vide Ex.P/18 from his house at Kulpahar. Kallu was arrested vide Ex.P/19 and memorandum. On memorandum (P/17) under Section 27 of Evidence Act, signatures of witness were there. 15. He gave confessional statement under Section 27 of Evidence Act Ex.P/17 to police. A Katta of 315 bore was seized from his possession by the police vide Ex.P/18 from his house at Kulpahar. Kallu was arrested vide Ex.P/19 and memorandum. On memorandum (P/17) under Section 27 of Evidence Act, signatures of witness were there. 15. Mahendra Singh (PW.14), Sub-Inspector of Police has stated that when he was posted as Sub-Inspector, PS-Garhimalhara, on 9.10.2001, he investigated the matter, he reached on the spot and made inquest reports vide Ex.P/7 and P/8 and sent the dead body of Munna for postmortem vide Ex.P/20. He stated that he prepared the spot map vide Ex.P/3 . He examined the witnesses and in the investigation on 28.10.2001 he arrested accused Prabhat @ Kallu who made incriminating statement under Section 27 of the Evidence Act about the Katta before the witnesses on which memorandum Ex.P/17 was prepared; Katta was seized before the witnesses from him vide Ex.P/18 from Kulpahar. He was arrested vide Ex.P/19. On 2.12.2001 he arrested accused Balvir Singh from Mahoba Railway Station and he was having 12 bore Katta and cartridges on his waist so he seized them from him vide Ex.P/15, Balvir was arrested vide Ex.P/16. He further stated that seized articles were sent to FSL, Sagar vide Ex.P/24 request letter, from where report vide Ex.P/28 and P/29 were received and it was verified that Kattas were in working condition. Ramchand Mishra (PW.10), ASI, PS-Garhimalhara, District-Chhatarpur has stated that when he was posted as ASI on 8.10.2001 Rajesh Dixit came at Police Station and he lodged named report against Santosh Singh (since dead), Balvir (Appellant) and Tinku Raja (since dead) and four unknown persons for murdering Munna @ Jagdish and for looting three guns. On which he registered Crime No. 133/01 under Sections 396, 302 and 307 IPC. He also registered Marg intimation under Section 174 Code of Criminal Procedure vide Ex.P/1. 16. Dr. L.C. Chourasia (PW.7) has stated that on 8.10.2001 when he was on causality duty at 7.40 PM he examined Lajjadevi and found four injuries of hard and blunt object vide Ex.P/12. He stated that he examined Premvati and found that there were lacerated wounds on the parietal region of the head for which report (P.13) was given. 16. Dr. L.C. Chourasia (PW.7) has stated that on 8.10.2001 when he was on causality duty at 7.40 PM he examined Lajjadevi and found four injuries of hard and blunt object vide Ex.P/12. He stated that he examined Premvati and found that there were lacerated wounds on the parietal region of the head for which report (P.13) was given. He further stated that Chandraprabha was also examined and he found that on the middle of occipital region there was lacerated wound of 4 x 1/2 cm. skin deep which was fresh and blood was coming out, he gave report (Ex.P/14). 17. Dr. R.J. Kotia (PW.12) has stated that on 9.10.2001 when he was posted as Medical Officer at Primary Health Centre, Maharajpur, District-Chhatarpur a Constable brought the body of Jagdish @ Munna vide letter Ex.P/20. At 11.30 AM he conducted the postmortem and found Rigour Mortis passing off from the body. Mouth was half opened, right eye was half closed and left was fully closed. Blood was there on face and chest. He found gun shot injury on the upper part of head near the ear due to which cerebellum part of the brain was damaged up to the spinal cord. He further stated that he also found gun shot injury on the right side in the stomach measuring 1/2 cm. x 1/2 cm. There was injury in the liver and bullet was there in spinal cord. On examination he found that 2/3rd upper part of the head was missing, only 1/3rd lower part was there. He also found 10 iron pellets in the brain and there was iron cartridge between T-3 and T-4 and another in between L-1 and L-3. He found that brain was damaged and death was due to gun shot injuries within 20-36 hours. He stated that he gave postmortem report vide Ex.P/21. 18. Against this main evidence of prosecution, the defence produced evidence of Brajraj Singh (DW-1), Valiraja (DW-2) (brother of Appellant Balvir), Ganesh Sharma (DW-3) (Registered Clerk of Advocate, Mahoba, U.P.), Manish Shankar Amist (repeated No. DW-3, infact DW-4), Rasul Mohd. (DW-5) and Omprakash Shivhare (DW-6), Constable of PS-Charkhari, District-Mahoba (U.P.). 19. Brajraj Singh (DW-1) was produced to prove the fact that Balvir Singh was arrested on 12.11.2001 from Agra (U.P.) by the police of Garhimalhara and his arrest was not shown, he was kept in illegal custody. (DW-5) and Omprakash Shivhare (DW-6), Constable of PS-Charkhari, District-Mahoba (U.P.). 19. Brajraj Singh (DW-1) was produced to prove the fact that Balvir Singh was arrested on 12.11.2001 from Agra (U.P.) by the police of Garhimalhara and his arrest was not shown, he was kept in illegal custody. Valiraja (DW-2) was produced also to prove the fact that Balvir Singh was arrested on 12.11.2001 from Agra (U.P.), his arrest was not shown and he was kept in illegal custody so on 19.11.2001 he moved an application under Section 57 of Code of Criminal Procedure on which Judicial Magistrate of Nawgaon called a report. He has also been produced to prove the enmity. Ganesh Sharma (DW-3), Registered Clerk of Advocate and Manish Shankar Amist (DW-4) Advocate have been produced to prove the alibi that Kallu alias Prabhat was at Mahoba at the relevant time and Rasul Mohd. (DW-5) has been produced for alibi of Kallu that at the relevant time when the incident took place, he was with this fellow from Mahoba to Kulpahar. Omprakash Shivhare (DW-6) was produced for accused Mahipal who has already been acquitted. 20. From the evidence of defence, it has been tried to show that Appellant Balvir was arrested on 12.11.2001 with Kallu @ Prabhat and both were kept in illegal custody. It has been argued that they were shown to the witnesses before the TIP, but no such evidence of showing these Appellants to witnesses has been produced. As far as plea of alibi is concerned, only by filing an application in the Court under Section Cr.P.C., it cannot be presumed that Appellant Prabhat @ Kallu was at Mahoba at the time of incident . It is also pertinent to note that distance of Mahoba and place of incident is not more than 20-25 kms. Even if it is assumed that Kallu was at Mahoba in the morning, then from this it cannot be concluded that he cannot reach on the spot. 21. As far as enmity is concerned, according to prosecution witnesses, enmity of Balvir Singh was there, but enmity is a double edged weapon. It can be a ground of false implication on one hand, but simultaneously it may be a motive of the crime. Court has to see that in what way the edge of enmity has worked. 22. 21. As far as enmity is concerned, according to prosecution witnesses, enmity of Balvir Singh was there, but enmity is a double edged weapon. It can be a ground of false implication on one hand, but simultaneously it may be a motive of the crime. Court has to see that in what way the edge of enmity has worked. 22. Learned Counsel for Appellants have submitted that there are material contradictions in the evidence of eye witnesses, the place from where Rajesh Dixit (PW.1) claims to have seen the occurrence, from there, according to Lajjadevi (PW.8), verandah is not visible, but no suggestions have been given in this regard to Rajesh (PW.1) and Mahendra Singh (PW.14), the investigating officer. 23. Learned Counsel also submitted that according to ladies, Rajesh Dixit (PW.1) came after 15 minutes, but there is no contradiction. Rajesh (PW.1) himself has stated that he remained in the hidden place behind the door and when all miscreants went away then he entered the house and first he looked at the body of Munna @ Jagdish and then he went inside, so there is no material contradictions. 24. Learned Counsel has next submitted that Rajesh (PW.1) was a Teacher, whose school was up to 4.30 PM, so he cannot come at 4 O'clock. Again no universal dead line can be fixed that a teacher cannot leave his school before closing time. 25. Learned Counsel submitted that Balvir was a resident of the same village and he was very well acquainted with the family of complainant side, still his TIP has been conducted. Since three ladies were injured and in order to ascertain the further reassure, if TIP of Balvir has been conducted, then there seems to be no unnatural thing. Learned Counsel submitted that TIP (Ex.P/4 and P/5) is doubtful, there are material contradictions in statements of K.P. Patel (PW.5) Naib Tahsildar, Premwati (PW.2) and Chandraprabha (PW.6). Though there are some minor contradictions relating to scar mark, the dresses and the persons mixed in the parade , but those are of common nature and no material defects are there. According to version of Rajesh Dixit (PW.1), Premvati (PW.2), Chandraprabha (PW.6) and K.P. Patel (PW.5) both Appellants were properly identified as miscreants. Moreover all the witnesses have identified these two Appellants as miscreants in the Court. 26. According to version of Rajesh Dixit (PW.1), Premvati (PW.2), Chandraprabha (PW.6) and K.P. Patel (PW.5) both Appellants were properly identified as miscreants. Moreover all the witnesses have identified these two Appellants as miscreants in the Court. 26. According to Awadh Kishore Rawat (PW.13), Arms Clerk posted in the office of District Magistrate, Chhatarpur, on 18.2.2002 the then District Magistrate Rajiv Ranjan gave sanction for prosecution of Appellants vide Ex.P/22 for having illegal arms. According to this witness Balvir Singh was having a 12 bore country made Katta and live cartridge, and from the possession of Prabhat @ Kallu a Katta of 315 bore with a live cartridge was found, so proper sanction was given. 27. In view of aforesaid discussion, it is very much clear that the prosecution evidence is trust worthy and reliable. Both the Appellants have been rightly convicted and sentenced by the trial Court. Finding of conviction of the Appellants and the sentences awarded to them by the trial Court in the impugned judgment are affirmed. We do not find any force in these appeals. The appeals are dismissed.