Poonam Srivastav, J.: - Heard Sri V.C. Tiwari Senior Advocate and Sri Satish Trivedi Senior Advocate, assisted by Sri A.K. Awasthi Advocate on behalf of complainant and learned A.G.A. on behalf of the State and Sri G.S. Chaturvedi Senior Advocate assisted by Sri Raunak Chaturvedi Advocate on behalf of accused opposite party. The instant government appeal arises out of a judgment and order of acquittal dated 24.3.1987 passed by the Sessions Judge, Azamgarh in S.T. No. 84 of 1984. 2. The case of the prosecution is that the accused Abul Waish armed with gun, Abul Khair, Shamsher Ahmad and Abu Sahmo armed with country made pistols along with accused Abdul Samad constituting an unlawful assembly on 18.12.1983 at about 10.30 A.M. in village Shekhupur within police station Jeanpur, District Azamgarh sharing a common object committed murder of Shabbir Ahmad. Abdul Samad is alleged to have committed offence punishable under Section 147 I.P.C. The rest of the accused committed an offence under Section 148 I.P.C. The unlawful assembly with premeditated intention murdered Shabbir Ahmad. F.I.R. was lodged on the same day i.e. 18.12.1983 at 2.40 P.M. by Alamgir PW-3, son of the deceased at Police Station Jeanpur situated at a distance of 7 miles. The prosecution alleges that deceased Shabbir Ahmad carried out his business at Bombay and he has filed a civil suit against Abdul Samad for demolition of a wall which is said to have been constructed over chak land of Shabbir Ahmad. A decree was passed in his favour but the same was stayed at the instance of Abdul Samad in an appeal. The motive alleged by the prosecution is the instant litigation. Shabbir Ahmad had moved an application for depositing licensed gun of the accused Abdul Samad but this order was also stayed in appeal by the High Court. It was only few days before the deceased had come from Bombay to his village and on the date and time of occurrence, son of the deceased namely Alamgir was working in his Dhaniya plantation. All the accused started abusing Alamgir from their western sahan. Alamgir abused the accused in retaliation thereafter Abdul Samad came out from his house and exhorted his associates to kill Alam Gir and his father Shabbir Ahmad who had come from Bombay few day before. All the accused started abusing Alamgir from their western sahan. Alamgir abused the accused in retaliation thereafter Abdul Samad came out from his house and exhorted his associates to kill Alam Gir and his father Shabbir Ahmad who had come from Bombay few day before. Abdul Samad went inside his house, brought out his licensed gun and when all the accused approached Alamgir, he ran towards his house. The hue and cry attracted intention of Shabbir Ahmad who came out from his house. Abdul Samad handed over his licensed gun to Abul Waish and exhorted him to kill Shabbir Ahmad. Shot was fired by Abul Waish from the gun. Abu Khair and Abu Sahma fired with their country made pistols, as a result Shabbir Ahmad fell down. The incident is said to have been witnessed by Siraj Ahmad PW-1, Abul Jais PW-2, Alam Gir PW-3, Manzoor Ahmad and Ali Akhtar. On the intervention of the witnesses, the accused ran away. Shabbir Ahmad was taken to the hospital where the doctor declared him dead. The F.I.R. was lodged by Alam Gir PW-3 on the same day at Police Station Jeanpur at 2.40 P.M. Police Station is situated at a distance of 7 miles from the place of occurrence. 3. The prosecution examined a number of witnesses. Siraj Ahmad as PW-1, Abul Jais PW-2, Alamgir PW-3, Ambika Pandey PW-4 is a witness of inquest, Dr. G.C. Chaturvedi PW-5 who performed autopsy, Head Constable Dinesh Singh PW-6 and Narendra Pratap Narayan Singh Investigating Officer PW-7. Six defence witnesses were also examined. Dr. A.C. Tripathi was examined as DW-1 who proved the injury report of the accused Abul Khair and Abdul Samad, S.S. N. Srivastava DW-2 and A.P. Sonkar DW-3 were produced from the electricity department. Subedar DW-4 has deposed that he saw two accused in an injured state. DW-5 Mahadev Prasad who was examined to prove the application moved on behalf of Abdul Samad for registering cross case and DW-6 Lal Chand to prove the G.D. of concerned police station dated 22.12.1983. Learned Sessions Judge while acquitting the opposite party held that there was no motive for the accused to commit murder of the deceased. He also disbelieved the evidence of Siraj Ahmad PW-1, Abul Jais PW-2 and Alamgir PW-3. Learned Sessions Judge while acquitting the opposite party held that there was no motive for the accused to commit murder of the deceased. He also disbelieved the evidence of Siraj Ahmad PW-1, Abul Jais PW-2 and Alamgir PW-3. The finding that all the three witnesses are chance witnesses as well as the fact that PW-1 and PW-2 claimed to have seen the incident from a place, can not be accepted. The prosecution has completely failed to explain the injury of the accused which was proved by doctor. 4. Sri V.C. Tiwari Senior Advocate has placed the F.I.R. and post mortem which was performed on 19.12.1983 at 11.30 hours. Ante-mortem injuries found by doctor are detailed below:- 1. Firearm wound margins inverted 1 cm x 1 cm over left side back, 3 cm away, slightly above left clavicle muscle deep, no scorching and tattooing present. 2. Four firearm wounds over outer side of left arm upper part, each measuring 1 cm x 1 cm in two parts, two above and two below each at a distance of 4 cm transversely, and 8 cm vertically, margins inverted wound of entry, with two wounds just opposite liner two wounds of entry, each measuring 2 cm x 2 cm margins averted wound of exit as shown in diagram upper end of the liamens bone shaft forehead, inner two wounds of entry, communicating with wound of exit, and the upper two wounds were muscle deep one pellet recovered from the muscle direction of wound was from left, no scorching, tattooing and singing present. 3. Firearm wound 1 cm x 1 cm x chest cavity deep, on left side of chest, 3-1/2 cm above left nipple at 12 O'clock position margins inverted (wound of entry), no scorching, no tattooing, no singing of hairs, wound was directly from in front behind in between 3rd and 4th left ribs space lacerated the tissues underneath. Upper pole of left lung was lacerated in an area of 2.5 cm x 2.5 cm. 4. Upper pole of left lung was lacerated in an area of 2.5 cm x 2.5 cm. 4. Firearm wound 1 cm x 1 cm x chest cavity deep over left front of chest 4 cm away from left nipple at 4 O'clock position, margins inverted (wound of entry), no scorching, no tattooing, no singing of hairs, below fracturing 6th left rib lacerating middle of left lung, 2 cm x 2 cm and 1 left vertical of heart (2 cm x 2 cm) one big metallic pellet recovered by the left side of 10th thoracic vertebrae which is fractured, chest cavity contains about two pints of dark liquid blood, direction from front obliquely back and to right side. 5. Firearm wound 1 cm x 1 cm x chest and abdomen cavity deep, 14 cm from left nipple, at 5 O'clock position margins inverted (wound of entry) no scorching, no tattooing, no singing of hairs, fracturing left 9th rib below going to right lacerating the tissues below and lacerating stomach in middle 2 cm x 2 cm, then lacerating left lobe edge of liver 3 cm x 1.5 cm, 1 big pellet recovered from the muscle of wall below. Abdominal cavity contains dark liquid blood about one pint. Cause of death was due to syncope, as a result of ante-mortem injuries. 5. Admittedly, the deceased was having a civil litigation in respect of a wall which accused Abdul Samad claimed to have constructed but the said wall was on the land of deceased Shabbir Ahmad. The deceased had also moved an application at the police station complaining that the accused Abdul Samad had left his cattle in his field who had grazed away all the crops. Copies of civil litigation regarding construction of wall have been brought on record and exhibited in the trial. Proceedings under Section 107/117 Cr.P.C. was also launched against accused Abdul Samad which is Exb. Ka-6. Report of seriologist regarding blood stained earth is positive and on its basis counsel for the complainant states that the incident took place on account of motive which is well established and findings of the learned Sessions Judge can not be accepted. Proceedings under Section 107/117 Cr.P.C. was also launched against accused Abdul Samad which is Exb. Ka-6. Report of seriologist regarding blood stained earth is positive and on its basis counsel for the complainant states that the incident took place on account of motive which is well established and findings of the learned Sessions Judge can not be accepted. Admittedly, Shabbir Ahmad had come from Bombay and since long standing enmity was continuing, the presence of Shabbir Ahmad at the time of incident was a cause to motivate the accused to eliminate him so that all the dispute come to an end. First informant is son of the deceased. While placing the statement of PW-1, learned counsel has tried to support his argument that finding of the learned Sessions Judge discarding his statement on frivolous omissions has resulted in miscarriage of justice. It has been specifically pointed out in the judgment that the incident erupted from litigation between the first informant and accused and when he started running away to save himself, he saw his father coming towards him accompanied by Ali Akhtar and Manzoor Ahmad. Since these two witnesses were not produced by the prosecution, the conclusion of the Sessions Judge while drawing an adverse inference is irreconcilable. The finding that instead of Ali Akhtar and Manzoor Ahmad, PW-1 Siraj and PW-2 Abul Jais were examined who were nothing short of chance witness and since their field lies at a distance of 150-200 paces south chak of the deceased, therefore, chances of visibility was very bleak and they can not see Alamgir PW-3 working in his Dhaniya field. 6. Submission of the prosecution while commenting the findings of the Sessions Judge appears to be well founded. So far brushing aside the evidence of PW-1 and PW-2 on the basis of site plan and possibility of these witnesses having clear vision to identify the accused, appears to be far-fetched and against the weight of testimony of the witnesses in the court. The fact that injuries of the accused were examined and proved by doctor and, therefore, it can not be doubted and since the prosecution has failed to explain the injuries of the accused, he has disbelieved the entire prosecution story. The fact that injuries of the accused were examined and proved by doctor and, therefore, it can not be doubted and since the prosecution has failed to explain the injuries of the accused, he has disbelieved the entire prosecution story. The injuries of Abu Khair are detailed below:- 1.Incised wound 4.0 cm x 1.0 cm x muscle deep present over the right forearm (outer aspect) 10 cm distal to the elbow, oozing from the wound present. 2.Complain of pain over the right hip present. 3.Complain of pain over the right scapular region present. The injuries are said to have been caused by some sharp weapon and were within 12 hours and were simple in nature. Theses injuries were examined on 18.12.1983 at 7.15 P.M. 7. Perusal of the injuries of Abu Khair shows that injury no. 1 is incised injury 4 cm. x 1 cm. muscle deep on the anterior aspect of forearm. Nature of injuries is reported to be simple. Injuries of Abdul Samad is once again single incised injury which is muscle deep and nature of injuries is said to be simple. Injuries of Abdul Samad is detailed herein below:- 1.Incised wound 2.5 cm x 1.0 cm x muscle deep present over the medial aspect of left shoulder, 2.5 cm lateral to the lateral end of left clavicle, oozing present. 2.Incised wound 3 cm x 1 cm x muscle deep present over the lateral posterior aspect of left forearm, 10 cm distal to the left elbow joint, oozing present. 3.Complain of pain over the neck present. 4.Complain of pain over the right leg present. The injuries are said to have been caused within twelve hours and nos. 1 and 2 are said to have been caused by some sharp edged weapon and they were simple in nature. It is thus evident that the entire prosecution case is based only on one question i.e. non explanation of injuries of the accused. Injuries were examined at Primary Health Centre on 18.12.1983 at 7.00 P.M. No doubt, there are two accused who have received injuries but it can not be said that the injuries were received in the incident because the accused have not claimed any right of private defence as well as the injuries have been examined in the evening at 7.00 P.M. The defence witness Dr. A.C. Tripathi has been cross examined at length regarding register in which the entries of the injuries were made and a number of anomalies as well as the fact that to eliminate certain entries, papers were pasted on certain part of the register which the doctor was not able to reply with any conviction. Two incised injuries received by the respective accused were caused by some light cutting weapon since the doctor has specifically admitted that it is not a heavy cutting weapon. Though in the second line he has stated that the injuries can be caused by Farsa. 8. Learned counsel has tried to invite my attention on several parts of cross examination in support of his argument that the learned Sessions Judge has committed grave error while disbelieving the entire prosecution story only on account of reason that two of the accused had received injuries. The defence has tried to give a twist to the story in his statement under Section 313 Cr.P.C. that son of the deceased PW-3 Alamgir had misbehaved with a girl and grandson of the accused Abdul Samad tried to stop him. Alamgir had also began beating that girl, that his grandson Abdul Waheed is said to have reached there and there was a quarrel between Abdul Waheed and Alamgir PW-3. Abdul Waheed is said to have given two or four slaps to Alamgir and Alamgir is therefore, said to have gone weeping towards his house. It is stated that thereafter Shabbir Ahmad and one Ajim came armed with pharsa to his door and made an attack and he and his son Abu Khair were also attacked and in that process to save their lives, he had fired with his gun. There was some marpeat between them and thereafter Shabbir Ahmad deceased came armed with pharsa and firing was resorted to save themselves. Learned A.G.A. has also stated that presence of the witnesses can not be said to be doubtful and evidence recorded by the Sessions Judge is without any basis. Consequently the judgment of acquittal is evidently miscarriage of justice. 9. Sri G.S. Chaturvedi Senior Advocate appearing on behalf of accused has stated that only because a different view is possible, this alone is not sufficient to convert a judgment of acquittal, one into conviction. Consequently the judgment of acquittal is evidently miscarriage of justice. 9. Sri G.S. Chaturvedi Senior Advocate appearing on behalf of accused has stated that only because a different view is possible, this alone is not sufficient to convert a judgment of acquittal, one into conviction. Sri Chaturvedi has also emphasized on the findings recorded by the Sessions Judge expressing his doubt about presence of PW-2 and PW-1 and also the fact that Alamgir has not received single scratch. Learned counsel further submits that the conviction on the basis of testimony of chance witnesses was rightly refused by the Sessions Judge. While placing the statement of Investigating Officer, where the Investigating Officer has admitted that Abdul Samad had given a written report regarding incident but the police had completely overlooked the said report and did not care to make preliminary inquiry. However, we have considered the arguments of counsels for parties and we are of the opinion that the incident is a day light incident. The prosecution has examined three witnesses and all the three witnesses have supported the prosecution version save for minor contradictions which is not sufficient to lead to an acquittal in a day light murder case having independent witnesses. Learned Sessions Judge has committed an error while discarding the evidence of eye witnesses treating them to be chance witnesses. It is not a case where the witnesses belong to another village and their presence calls for an explanation. So far non explanation of injuries of the accused persons is concerned, we have already stated in foregoing paragraph of this judgment that they are muscle deep and simple in nature and rest of the injuries are only complaint of pain. In the case of Ram Pyare Mishra Vs. Prem Shanker and others, (2009) 2 Supreme Court Cases (Cri) 1132, the Apex Court held that non explanation of injuries by prosecution will not effect prosecution case where injuries sustained by the accused are minor and superficial or where the evidence is so clear, cogent and independent and disinterested. We have already examined the evidence in detail which is probable, consistent and creditworthy. In fact it outweighs the effect of the omission on the part of the prosecution to explain the injuries. Similar view was expressed in the cases of Ramlagan Singh Vs. State of Bihar, AIR 1972 SC 2593 and Anil Kumar Vs. We have already examined the evidence in detail which is probable, consistent and creditworthy. In fact it outweighs the effect of the omission on the part of the prosecution to explain the injuries. Similar view was expressed in the cases of Ramlagan Singh Vs. State of Bihar, AIR 1972 SC 2593 and Anil Kumar Vs. State of U.P., 2005 SCC (Cri) 178. In another case decided by the Apex Court Mahesh Vs. State of Maharashtra, (2009) 3 Supreme Court Cases (Cri) 543, it was held that merely because the prosecution has failed to explain the injuries on the accused, that can not be a solitary ground for doubting the prosecution case, if otherwise, evidence relied upon is found to be credible. 10. In the instant case, admittedly the injuries are muscle deep and that too caused on non vital part. Abu Khair has received incised injuries on the right forearm and Abdul Samad has received incised injury on the left shoulder and end of left clavicle which is not very material to throw the prosecution case where one man has been done to death in presence of three eye witnesses in broad day light. In the circumstances, we are of the considered view that the judgment of acquittal by the Sessions Judge is a lop sided judgment and it is therefore liable to be set aside. In the circumstances, the judgment of acquittal dated 24.3.1987 passed by the Sessions Judge, Azamgarh is set aside and the accused are convicted for an offence under Section 149 I.P.C. read with Section 302 I.P.C. and sentenced to undergo imprisonment for life. The accused shall be taken in custody and sent to jail to serve out the sentence. Their bail bonds are cancelled. The Government Appeal is allowed.