JUDGMENT [Per : Hon’ble Prafulla C.Pant, J. (Oral)] All these three appeals are directed against the judgment and order dated 10.06.2004, passed by 1st Fast Track Court/Additional Sessions Judge, Roorkee, District Hardwar, in Sessions Trial No. 115 of 2002, where by appellant Yogesh @ Yogi has been convicted under section 302, and sentenced to imprisonment for life and directed to pay fine of Rs. 1000/-. He has been further convicted under section 307 read with section 34 I.P.C., and sentenced to rigorous imprisonment for a period of five years and also directed to pay fine of Rs.1000/-. Appellant Moni @ Raman has been convicted under section 302 read with section 34 I.P.C, and sentenced to imprisonment for life and directed to pay fine of Rs. 1000/-. He has been further convicted under section 307 I. P C and sentenced to rigorous imprisonment for a period of five years, and directed to pay fine of Rs. 1000/- the other two accused respondents Neeraj and Ramnath have been acquitted of the charge framed against them. As such, the Government has also filed an appeal challenging the acquittal of said two accused. 2. We heard learned counsel for the parties and perused the lower court record. 3. Prosecution story, in brief, is that on 24.11.2001, PW1 Ved Prakash lodged First Information Report (Ex- Al), at Police Station Laksar, at about 5 pm. It is stated in the First Information Report that on 24.11.2001, at about 8.am Smt Mitto, wife of Om Prakash, was all alone in her house when aecused/appellant Yogesh molested her. When Om Prakash (deceased) came to his house at 9.am, he was told about the incident by his wife Mitto. Thereafter, Om Prakash went to the house of Ramnath (father of Yogesh) complaining about behavior of his son, and he came back. Accused/appellant Yogesh accompanied accused/appellant Moni, and two others namely Ramnath and Neeraj came to the house of Om Prakash at about 4 pm. They quarreled with Om Prakash and accused /appellant Yogesh fired a shot point blank on the abdomen of Om Prakash. When PW3 Gulab Singh, brother of Om Prakash tried to intervene, he was assaulted by accused/appellant Moni, with knife. PW1 Ved Prakash brother of the injured and deceased was also in the house. When other persons started getting collected accused/ appellants ran away. When PW3 Gulab Singh, brother of Om Prakash tried to intervene, he was assaulted by accused/appellant Moni, with knife. PW1 Ved Prakash brother of the injured and deceased was also in the house. When other persons started getting collected accused/ appellants ran away. Immediately, after the incident injured Gulab Singh was taken to Pappu Nursing Home from where he was referred to Government Hospital, where his injuries were medically examined by PW4 Dr. Bhrama Singh on the very day (at 7.15 pm). His father (sic) Om Prakash was also taken to the hospital but he was declared brought dead. Within one hour of the incident the First Information Report which was lodged. On the basis of said report crime no. 272 of 2001, relating to offence punishable under section 302 and 307 was registered at police station Laksar, against accused/appellant Yogesh, Moni their brother Neeraj and their father Ramnath. The investigation was conducted by PW6 D.S. Panwar, who rushed along with other police personnel to the spot. PM Sub Inspector Ranveer Singh took dead body of Om Prakash in his possession, and prepared inquest report (Ex A-11) at about 5.30 pm. He further prepared sketch of the dead body. (Ex A 12), police form no. 13 (Ex A-13), letter to Chief Medical Officer (Ex A-14) requesting for post mortem examination and sample seal (Ex A-15). The dead body was sent for post mortem examination. PW5 Dr. S.S. Lal conducted post mortem examination on 25.11.2001, at 9.45 am, and recorded the ante mortem injuries including one fire arm injury and prepared autopsy report (Ex A-3). He opined in his report that deceased had died due to shock and hemorrhage, due to ante mortem fire arm injury. Meanwhile, the Investigating Officer interrogated witnesses, and after inspection got prepared site plan ( Ex A-18). After the arrest of the accused as per the prosecution case during investigation fire arm used in the crime was recovered on pointing out of accused/appellant Yogesh, and knife was recovered on pointing out of accused/appellant Moni. Separate criminal cases were registered under section 25 of Arms Act, 1959, against the two accused relating to unauthorized possession of the arms. Said crime were also investigated, and charge sheets were filed. Separate criminal cases were registered under section 25 of Arms Act, 1959, against the two accused relating to unauthorized possession of the arms. Said crime were also investigated, and charge sheets were filed. In connection with the murder of Om Prakash and attempt to committed murder of Gulab Singh charge sheets (ExA-8) was filed by the Investigating Officer for their trial, against all the four accused namely Yogesh @ Yogi, Neeraj, Moni and their father Ramnath. 4. The Judicial Magistrate, Roorkee, on receipt of the charge sheets, after giving necessary copies to the accused, as required under section 207 of Cr.P.C., appears to have committed to the case of court of Sessions for trial. Learned Sessions Judge, Haridwar, after hearing the parties, framed charge of offence punishable under section 302 read with section 34, and under section 307 read with section 34, against all the four accused namely Yogesh @ Yogi, Neeraj, Moni and their father Ramnath who pleaded not guilty, and claimed to be tried. On this prosecution got examined PW1 Ved Prakash (complainant and eye witness) , PW2 Radhe Shyam (another eye witness), PW3 Gulab Singh (injured eyewitness), PW4 Dr. Bhrama Singh (who recorded injuries on person of Gulab Singh), PW5 Dr. S.S. Lal (who conducted post mortem examination of deadbody of Om Prakash), PW6 Station House Officer D.S. Panwar (Investigating Officer), PW7Assistant Sub Inspector Dinesh Kumar (in whose presence recovery of weapon is said to have been made), PW8 Nepal (witness of recovery of weapon) and PW9 Sub Inspector Ranveer Singh, (who prepared inquest report). Oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which they alleged that they have been falsely implicated in the case, due to enmity. In defence DW1 Mahendra Pal Singh was got examined. The trial court, after hearing the parties, found that prosecution has successfully proved charge of offence punishable under section 302 and 307/34 I.P.C., against accused Yogesh @ Yogi, and that of offence punishable under section 307 and 302/34 I.P.C., against accused/appellant Moni. In defence DW1 Mahendra Pal Singh was got examined. The trial court, after hearing the parties, found that prosecution has successfully proved charge of offence punishable under section 302 and 307/34 I.P.C., against accused Yogesh @ Yogi, and that of offence punishable under section 307 and 302/34 I.P.C., against accused/appellant Moni. However, the trial court found that charge against the two accused namely Ramnath and Neeraj was not found proved beyond reasonable doubt, and they were acquitted of the charge (As to the offence punishable under section 25 Arms Act, 1959, the trial court found that the recovery is not proved beyond reasonable doubt and accused Yogesh and Moni stood acquitted of said charge). After hearing on sentence, each of the two convicts was sentenced to imprisonment for life, and directed to pay fine of Rs. 5,000/- have commission of murder of Om Prakash, and rigorous imprisonment for a period of five years and directed to pay fine of Rs. 1000/- for attempting to commit murder of Gulab Singh with common intention. Aggrieved by said judgment and order dated 10.06.2004, passed by Additional Sessions Judge, /Fast Track Court Roorkee, in Sessions Trial No. 115 of 2002, convicts Yogesh @ Yogi and Moni @ Raman filed their separate appeals. On the other hand the State Government filed appeal against acquittal of accused Ramnath and Neeraj. All the three appeals were heard together. 5. Before further discussion, we think it just and proper to mention here the ante mortem injuries recorded by PW5 Dr. S.S. LaI, on the dead body of Om Prakash on 25.11.2001, at 9.45 am. The same are being reproduced below from autopsy report (Ex A3) : Fire arm wound ofentry 2cm x 2cm oval in shape present on front of middle of abdomen. 2cm away from umbilicus at 11’O Clock position. Margin inverted singieng present Blackening and tattooing is present around wound in an area of 7cm x 6cm. Direction:- backward and medially perforating mesenty of small intestine. (i) Multiple abrasion in an area of 10 x 7cm at back side of right palm. (ii) Multiple abrasion in an area of back of left elbow joint. PW5 Dr. S.S. Lal has opined in the autopsy report (Ex A3) that the deceased had died due to shock and hemorrhage due to ante mortem injuries. He has further mentioned that the duration was about half to one day back. (ii) Multiple abrasion in an area of back of left elbow joint. PW5 Dr. S.S. Lal has opined in the autopsy report (Ex A3) that the deceased had died due to shock and hemorrhage due to ante mortem injuries. He has further mentioned that the duration was about half to one day back. This medical evidence establishes on record that Om Prakash died of homicidal death on 24.11.2001. 6. It is also relevant to mention about the injuries found on person of PW3 Gulab Singh recorded by PW4 Dr. Bhrama Singh on 24.11.2001, about 7.15 pm at Primary Health Center Laksar. Said injuries are being reproduced below injury report (ExA-2): (i) An incised waund of 1 cm x . 3 cm x skin deep on the left side parietal region soft scab is present (ii) An incised wound of 2 cm x 03 cm x skin deep on the left eye lids soft scab is present. (iii) An incised wound of l cm x .3cm x muscle deep on the middle of upper lip soft scab is present. (iv) Contusion of 2cm x2cm on the right cheek. Reddish in colour. (v) An abrasion of 1.5cm x.2cm back side middle part of right fore arm. PW4 Dr. Bhrama Singh has observed in the injury report ( ExA-2) that injury report no. 1,2 and 3 could have been caused by sharp edged object. Now, we come to the evidence adduced by the eye witnesses. 7. PW3 Gulab Singh is the star eye witness as he is the person who is said to have suffered injuries in the incident. He (PW3) states that on 24.11.2001, at about 4 pm he was in the house of his brother Om Prakash, who was about to take his meals. PW3 Gulab Singh further states that his brother Ved Prakash ( PW1) was also present there. The witness further states that accused/appellant Yogesh armed with the country made pistol, accused/appellant Moni armed with the knife, accompanied with accused Neeraj and Ramnath (who had no arms with them) came to the house of Om Prakash and called him out. When Om Prakash came out Yogesh hurled abuses at him, and fired a shot from a country made pistol in the abdomen of Om Prakash. According to this witness, when he tried to save Om Prakash accused Moni gave knife blows on his person and caused injury. When Om Prakash came out Yogesh hurled abuses at him, and fired a shot from a country made pistol in the abdomen of Om Prakash. According to this witness, when he tried to save Om Prakash accused Moni gave knife blows on his person and caused injury. The witness further states that when alarm was raised, villagers started coming and accused/appellants ran away. The evidence adduced by this witnesses is corroborated from the injuries (mentioned above) recorded by PW4 Dr. Bhrama Singh. The presence of this witness in the house of his brother is natural. 8. PW1 Ved Prakash complainant and eye witness, has corroborated the prosecution story as narrated by PW3 Gulab-Singh. This witness (PW1) has stated that on 24.11.2001, at 9 am, when Om Prakash came back from his tea stall to his house, his wife Mitto told him that at about 8 am, accused/appellant Yogesh molested her. Thereafter, according to this witness Om Prakash went to the house of Ramnath and they had altercation. PW1 Ved Prakash has further narrated the incident which took place at 4 pm as mentioned in the preceding para while discussing the evidence by PW3 Gulab Singh. PW1 Ved Prakash further states that after the incident he went to the police station and got lodged First Information Report (ExAl). Presence of this witness in the house of his brother is also natural. The First Information Report is a prompt one. 9. The prosecution case has been further corroborated by PW2 Radhe Shyam, who has also narrated the prosecution case as narrated by PW1 Ved Prakash and PW3 Gulab Singh (injured). All the three witnesses have been subjected to lengthy cross examination but nothing has come out which creates doubts in their testimony. We concur with the trial court that the prosecution has successfully proved charge of offence punishable under section 302 and that of 307/34 I.P.C., against accused/appellant Yogesh, and charge of offence punishable under section 307, and that of 302 read with section 34 I.P.C. against accused Moni. 10. Having reassessed the entire evidence on record, we further found that the trial court has committed no error of law in holding that charge did not stood proved beyond reasonable doubt as against accused/appellants Ramnath and Neeraj. Learned counsel for the State Government argued the three eye witnesses have named Ramnath and Neeraj also, in their statements. 10. Having reassessed the entire evidence on record, we further found that the trial court has committed no error of law in holding that charge did not stood proved beyond reasonable doubt as against accused/appellants Ramnath and Neeraj. Learned counsel for the State Government argued the three eye witnesses have named Ramnath and Neeraj also, in their statements. However, we are of the view that these two accused were not armed with any deadly weapon, nor is their any evidence of their prior meeting of minds to hold against them that they had common intention either with Yogesh or with Moni to commit murder of Om Prakash or to attempt to commit murder of Gulab Singh. It can not be ruled out that these two namely Ramnath aged around 70 years and Neeraj aged around 18 years could have been falsely implicated with Yogesh and Moni who committed the crime discussed above. 11. On behalf of the appellants Yogesh and Moni it is argued that the eye witnesses have stated that Om Prakash was also given knife blows but no ante mortem injury found in autopsy report indicating said injury. No doubt the eyewitnesses have stated that Om Prakash was also assaulted with knife by Mani, but it is no where stated that the blows really landed on the person of Om Prakash. It is also submitted that on behalf of the appellants Yogesh and Moni that all the three eye witnesses are real brothers and their testimony should not be believed. Having gone through the statements of the PW1 Ved Prakash, PW2 Radhe Shyam and PW3 Gulab Singh, we find that no doubt they are brothers but their on this ground the testimony can not be discarded. It is pertinent to mention here that injuries on person of Gulab Singh are proved by PW4 Dr. Bhrama Singh. Presence of these two eyewitnesses in the house of their brother who lived in the same village can not be doubted. It is relevant to mention here the incident is a day light incident. Therefore, we do not find substance in the argument advanced on behalf of the convicts/appellants. 12. For the reasons as discussed above, in our opinion, all the three appeals are liable to be dismissed. Accordingly, all the three appeals are dismissed. Conviction and sentence recorded against accused/appellants Yogesh and Moni by the trial court is affirmed. Therefore, we do not find substance in the argument advanced on behalf of the convicts/appellants. 12. For the reasons as discussed above, in our opinion, all the three appeals are liable to be dismissed. Accordingly, all the three appeals are dismissed. Conviction and sentence recorded against accused/appellants Yogesh and Moni by the trial court is affirmed. Acquittal of accused Ramnath and Neeraj from the charge of offence punishable under section 302/34 and 307/34, is also affirmed. Accused/appellant Yogesh is said.to be in jail. A copy of this judgment be sent to the Superintendent of the jail concerned. Accused/appellant Moni is said to be on bail. His bail is cancelled. Sureties are discharged. Let a copy of this judgment be sent to the trial court along with the lower court record to make convict Moni to serve out the sentence awarded by the trial court.