JUDGMENT Per: AMARESH KUMAR LAL, J. Both these appeals have been preferred against the judgment and order dated 30.09.2005 and 17.10.2005 respectively passed by the learned Additional Sessions Judge, F.T.C.V, Khagaria in Sessions Trial No.261 of 2002 by which appellant of Cr. Appeal No.574/2005 namely Pankaj Choudhary @ Pappu Choudhary has been convicted and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/- and in default of the payment of fine, to undergo simple imprisonment for one year for the offence punishable under Section 304 (II) of the Indian Penal Code (hereinafter referred to as the “I.P.C.”) and further sentenced to undergo rigorous imprisonment for two years and a fine of Rs.1000/- and in default of payment of fine, to undergo simple imprisonment for six months for the offence punishable under Section 27 of the Arms Act and both the sentences have been ordered to run concurrently. By this impugned judgment, the learned trial court has acquitted Shashikant Choudhary (respondent no.2 in Govt. Appeal No.3 of 2006). 2. Since both these appeals arise out of the aforesaid common judgment dated 30.09.2005 passed in Sessions Trial No.261 of 2002, as such, both these appeals have been heard together and are being disposed of by this common judgment. 3. According to the Fardbeyan (Ext.10) of Ram Kumar Chaudhary (P.W.3) recorded by the S.I. P. Kujur of Muffasil police station on 8.05.2002 at Sadar Hospital, Surgical Ward, Bed No.14 Khagaria at 14.30 hours, the prosecution case, in brief, is that on 8.05.2002, his cousin brother Pankaj Choudhary @ Pappu Choudhary (appellant/respondent no.1), Shashikant Choudhary (respondent no.2), Ramanuj Choudhary, Gopal Choudhary and Dinesh Choudhary were constructing wall at about 11.15 hours. The informant with his brother Manoj Kumar Choudhary (deceased) and Vijay Choudhary (P.W.1) asked them not to close the way. Thereafter, all the aforesaid accused made altercation with the informant and his brothers. In the meantime, the accused Dinesh Choudhary assaulted the informant with spade with intention to kill him. When his brother Manoj Kumar Chaudhary (deceased) came to his rescue, the accused Gopal Choudhary and Shashikant Choudhary caught hold of him and at the instance of accused Ramanuj Choudhary, the accused Pankaj @ Pappu Chaudhary shot fire upon the head of Manoj Chaudhary (deceased) causing his instantaneous death. Thereafter, all the accused armed with various weapons making firing went towards western side. Thereafter, all the accused armed with various weapons making firing went towards western side. The occurrence was witnessed by the co-villagers. The informant was taken to the Sadar Hospital for treatment. The fardbeyan was recorded by the police officer in Sadar Hospital, which was witnessed by Ramod Kumar Choudhary. On the basis of the fardbeyan Khagaria (Muffasil) P.S. Case No.167 of 2002 was instituted against Pankaj Chaudhary @ Pappu (appellant), Shashikant Choudhary (respondent no.2), Ramanuj Chaudhary, Gopal Choudhary and Dinesh Choudhary for the offence punishable under Sections 302, 324 and 307 of the I.P.C. and Section 27 of the Arms Act. After investigation, charge-sheet was submitted against the accused Pappu Choudhary, Shashikant Choudhary and Dinesh Choudhary and the investigation was pending with respect to accused Ramanuj Choudhary and Gopal Choudhary. The cognizance was taken against the accused. The case was committed to the court of sessions. Charges were framed against Pappu Chaudhary @ Pankaj, Shashikant Chaudhary and Dinesh Choudhary for the offence punishable under Sections 147, 148, 302/149 of the I.P.C. The accused Dinesh Choudhary was further charged under Section 307 of the I.P.C. and Pappu Choudhary was charged under Section 302 of the I.P.C. and Section 27 of the Arms Act to which they denied the charge and claimed to be tried, as such, the trial proceeded. 4. During trial, the accused Dinesh Chaudhary absented, as such, his bail bond was cancelled and his trial was separated from the rest of the accused and he was declared absconder vide order dated 14.11.2003 passed by the learned trial court. 5. The defence of the accused is that they have been falsely implicated in this case due to long standing dispute and the deceased died due to accidental firing by the informant (P.W.3). 6. After the trial, Pankaj Choudhary @ Pappu Chaudhary (appellant in Cr. Appeal No.574 of 2005 and respondent no.1 in Govt. 5. The defence of the accused is that they have been falsely implicated in this case due to long standing dispute and the deceased died due to accidental firing by the informant (P.W.3). 6. After the trial, Pankaj Choudhary @ Pappu Chaudhary (appellant in Cr. Appeal No.574 of 2005 and respondent no.1 in Govt. Appeal No.3 of 2006) was held guilty under Section 304 (II) of the I.P.C. and was sentenced to undergo rigorous imprisonment for seven years and a fine of Rs.10,000/- and in default of payment of fine to undergo simple imprisonment for one year for the offence punishable under Section 304 (II) of the I.P.C. and was further convicted and sentenced to undergo rigorous imprisonment for two years and a fine of Rs.1000/- and in default of payment of fine to undergo simple imprisonment for six months for the offence punishable under Section 27 of the Arms Act and both the sentences have been ordered to run concurrently and accused Shashikant Chaudhary (respondent no.2 in Govt. Appeal No.3 of 2006) has been acquitted. 7. This Court is required to reappraise the evidence and to consider as to whether the prosecution has been able to substantiate its case beyond all reasonable doubts. 8. The prosecution has examined the following witnesses to substantiate its charge : P.W.1 Ram Binay Chaudhary, P.W.2 Ramesh Chaudhary, P.W.3 Ram Kumar Chaudhary, P.W.4 Dr. Balmukund Pd. Singh and P.W.5 Abhay Kumar. 9. The defence has examined the following witnesses : D.W.1 Prabhakar Chaudhary, D.W.2 Monish Kumar, D.W.3 Shashikant Chaudhary, D.W.4 Dr. Kanti Mohan Singh and D.W.5 Dharmendra Kumar. 10. P.W.1 has stated that on the date and time of occurrence, he was at his Darwaja. His brother Ram Kumar Chaudhary (P.W.3), Manoj Kumar Chaudhary (deceased), their father Ramesh Choudhary (P.W.2) and their mother were present. The accused Ramanuj Chaudhary, Shashikant Choudhary, Gopal Choudhary, Pankaj Chaudhary @ Pappu and Dinesh Choudhary were obstructing the approached road to his house. His brother Ram Kumar Choudhary (P.W.3) objected Dinesh Choudhary assaulted him with spade which caused injury upon his head. Manoj Kumar Chaudhary (deceased) ran to his rescue who was caught hold of by Shashikant Chaudhary (respondent no.2) and Gopal Chaudhary. Ramanuj Chaudhary instigated to shoot. Thereafter, Pankaj Chaudhary @ Pappu (respondent no.1) took out pistol from his waist and shot fire which hit the head of Manoj Chaudhary. Manoj Chaudhary died there. Manoj Kumar Chaudhary (deceased) ran to his rescue who was caught hold of by Shashikant Chaudhary (respondent no.2) and Gopal Chaudhary. Ramanuj Chaudhary instigated to shoot. Thereafter, Pankaj Chaudhary @ Pappu (respondent no.1) took out pistol from his waist and shot fire which hit the head of Manoj Chaudhary. Manoj Chaudhary died there. On raising alarm, several persons came there and witnessed the occurrence. In his cross-examination, he has stated that Ramesh Choudhary had four sons namely Ram Binay Chaudhary, Ram Kumar Chaudhary, Manoranjan Chaudhary and deceased Manoj Kumar. His father was three brothers namely Dinesh Chaudhary, Umesh Chaudhary and Ramesh Choudhary. Dinesh Chaudhary has four sons namely Pankaj @ Pappu, Shashikant, Gopal and Ramanuj. Ramanuj was living at Khagaria. Gopal Chaudhary has a business at Begusarai. Umesh Chaudhary has three sons namely Mantun Chaudhary, Kanhaiya and Kundan Chaudhary. The brothers of his father are separate. The land dispute is going on amongst Dinesh Chaudhary, Ramesh Chaudhry and Umesh Chaudhary. Dinesh Chaudhary and Umesh Chaudhary had taken more land than the share of his father. The house of Dinesh Chaudhary is facing east. The Dalan ahead the house of Dinesh Chaudhary is joint and his share in the Dalan is in the middle and the share of Dinesh Chaudhary is in the southern side of the share of P.W.1. Dalan was demolished in the state of jointness and he has also share in the rubbish. Dinesh Chaudhary was constructing house on the land of his share and also on the share of this witness. If Dinesh Chaudhary would have been allowed to construct his house it would have closed the way of this witness for entering into his house. The prosecution party wanted that Dinesh Chaudhary should construct his wall leaving the way to the prosecution party. He has further stated that he did not see that Dinesh Chaudhary got injury in his head. He also does not know as to whether Dinesh Chaudhary and Shashikant Chaudhary were hospitalized in Kalpana Nursing Home, Begusarai. He has been cross-examined at length. 11. P.W.2 is the father of the informant and the deceased. He has also supported the prosecution case as P.W.1. He also does not know as to whether Dinesh Chaudhary and Shashikant Chaudhary were hospitalized in Kalpana Nursing Home, Begusarai. He has been cross-examined at length. 11. P.W.2 is the father of the informant and the deceased. He has also supported the prosecution case as P.W.1. In his cross-examination, he has stated that he does not know as to whether Dinesh Chaudhary and Shashikant Chaudhary were taken to the Nursing Home at Begusarai for the treatment of their injuries and both of them were arrested from the Nursing Home at Begusarai. 12. P.W.3 is the informant and the victim of the occurrence. He has stated that on the date and time of the occurrence he was present at his Darwaja with his brother Manoj Kumar Chaudhary, Vijay Chaudhary @ Ramvijay Chaudhary and his parents. Dinesh Chaudhary, Ramanuj Chaudhary and Pankaj Chaudhary @ Pappu were closing the way by constructing a wall which was protested by him. Thereafter, the accused Dinesh Chaudhary, Ramanuj Chaudhary, Gopal Chaudhary, Shashikant Chaudhary and Pankaj Chaudhary made altercation with him and his brothers. In the meantime, Dinesh Chaudhary assaulted him with spade which caused injury in his head and eyebrow with intention to kill him. Manoj Chaudhary (deceased) rushed to rescue him. Gopal Chaudhary and Shashikant Chaudhary (respondent no.2) caught hold of Manoj Chaudhary and Ramesh Chaudhary instigated to kill him. Thereafter, Pankaj Chaudhary shot fire at Manoj Chaudhary which hit in his head and caused his instantaneous death. He has further stated that the accused making firing escaped towards western side. He was taken to the Khagaria Hospital. His statement was recorded by the police officer and finding it correct, he put his signature which was witnessed by Ramod Kumar. Both the signatures have been marked as Exts. 1 & 1/1. He has identified both the accused Pankaj Chaudhary and Shashikant Chaudhary in the court. In his cross-examination, he has stated that he had four brothers Manoranjan Chaudhary, Manoj Chaudhary (deceased), Vijay @ Ram Vijay Chaudhary and Ram Kumar and all of them are living together. Dinesh Chaudhary, Umesh Chaudhary and Ramesh Chaudhary are full brothers. Ramesh Chaudhary is his father. The brothers of his father are separate and the properties are also divided. He has been cross-examined at length. He has stated that it is not a fact that the occurrence took place as an accident. Dinesh Chaudhary, Umesh Chaudhary and Ramesh Chaudhary are full brothers. Ramesh Chaudhary is his father. The brothers of his father are separate and the properties are also divided. He has been cross-examined at length. He has stated that it is not a fact that the occurrence took place as an accident. He has stated that he got the injury only with the spade. He did not receive any fire shot injury. He has stated that at the time of firing Gopal Chaudhary and Shashikant Chaudhary were catching hold of the hand of Manoj Chaudhary, but when the order was given to shoot, the hands of Manoj Chaudhary were left and Manoj got fire shot in course of escaping. He has further stated that he does not know as to how Dinesh Chaudhary and Shashikant Chaudhary got injury. He does not know as to whether both of them were arrested from the Nursing Home at Begusarai in injured condition. He has denied the suggestion of the prosecution that when Dinesh Chaudhary and Shashikant Chaudhary were being assaulted by the prosecution party, Manoj Chaudhary came to rescue them and when the arms was shot at Dinesh Chaudhary it caused injuries to Manoj Chaudhary as a mistake causing his death and due to gun power, the informant also got injuries. 13. P.W.4 is a doctor who has held the post-mortem examination on the dead body of Manoj Kumar Chaudhary (deceased) aged about 35 years on 8.05.2002 while posted as Civil Assistant Surgeon at Sadar Hospital, Khagaria and found the following ante-mortem injuries : (i) External : Blood and clot over the scalp face and neck regions. One lacerated wound ¾” x ½” x cranial cavity deep over left side of parietal occipital region of scalp 1” left to midline, margin of the wound inverted and brain matter with blood and clot coming out of the wound. (ii) Internal dissection:- superficial and deep tissues in connection with the above mentioned injuries were lacerated and contained blood clot and brain matter. Left parietal and occipital bones of the scull were fractured. Cervical cavity contained blood clot and brain matter. Brain tissue was badly lacerated specially the left parietals left occipital, right occipital and right parietals lobes. A bullet was recovered from the right parieto occipital region of the brain. Left parietal and occipital bones of the scull were fractured. Cervical cavity contained blood clot and brain matter. Brain tissue was badly lacerated specially the left parietals left occipital, right occipital and right parietals lobes. A bullet was recovered from the right parieto occipital region of the brain. It was properly labeled and sealed in a vial and handed over to the police for needful. All the other viscera i.e. heart, lungs, liver, kidneys and spleen were pale. Heart- both chambers were empty. Stomach contained about two ounce of semi digested food material and all the above mentioned injuries were ante-mortem in nature caused by firearms. The time elapsed since death 12 hours of the post-mortem examination. He has opined the caused of death as brain injury due to above mentioned ante-mortem injury caused by firearms. The doctor has also stated that the above mentioned injury is sufficient in ordinary course to cause death. He has proved the post mortem examination report which has been marked as Ext.2. He has stated that on the same day, he examined Ram Kumar Chaudhary (P.W.3) aged about 25 years and found the following injuries : (i) Incised wound 1 ½” x ½” x scalp deep over left fronto parietal region of the scalp. (ii) Lacerated wound ¼” x ¼” skin deep over left upper arm outer aspect. (iii) Blackening and tattooing 3” x 2” over right upper arm lower lateral aspect. On the same day, he received X-ray report. In his opinion, injury nos. (i), (ii) and (iii) are simple in nature. Both the injuries report has been marked as Exts. 3 & 3/1. In his cross-examination, he has admitted that injury no. (iii) of Ram Kumar Chaudhary was caused by firearms. He has informed the police regarding arrival of the injured. Again, he said that police has brought the injured in the Hospital. The injured was brought by S.I and he examined the injured at 12.25 P.M. on 8.05.2002. He has further stated that there was no blackening charring or tattooing mark on the dead body of the deceased Manoj Kumar Chaudhary. He must have been hit by the bullet at a distance of one metre. The sealed bullet was handed over to the police was not present before him at the time of his deposition. 14. P.W.5 is the Investigating Officer. He must have been hit by the bullet at a distance of one metre. The sealed bullet was handed over to the police was not present before him at the time of his deposition. 14. P.W.5 is the Investigating Officer. He has proved the endorsement on the fardbeyan which has been marked as Ext.4. He has taken the restatement of the informant and visited the place of occurrence. The place of occurrence is the Parti land in the eastern side of the new Dalan of Ram Kumar Chaudhary (informant- P.W.3) where the accused assaulted the prosecution party where the murder of Manoj Kumar Chaudhary was committed. He collected the bloodstain soil from the place of occurrence. He examined the witnesses. The inquest report was prepared by S.I. P.Kujur witnessed by Ram Naresh Chaudhary and Ramod Kumar Chaudhary. The formal FIR has been proved as Ext.5. After investigation, he submitted the charge-sheet. In his cross-examination, he has stated that at the time of occurrence, he was in the crime meeting in the office of Superintendent of Police, Khagaria. He got information about the occurrence which was mentioned in the case diary. During investigation, he received the injury report regarding the injury of Ram Kumar (P.W.3). He arrested the accused Dinesh Chaudhary and Shashikant Chaudhary in injured condition from the Nursing Home, Begusarai. He did not enquire as to how both of them have received injuries. On the basis of the fardbeyan of the accused Dinesh Chaudhary, he instituted Khagaria P.S. Case No.173 of 2002. He has also admitted that he did not send the bloodstain soil for examination in the Forensic Science Laboratory. 15. D.W.1 has stated that he saw Manoj Chaudhary fallen on the ground. Dinesh Chaudhary was injured and senseless. Ram Kumar Chaudhary was armed with firearms. Binay Kumar Chaudhary was armed with Farsa. Ramesh Chaudhary was standing there. Shashikant Chaudhary was also injured. He (D.W.1) and others took the dead body of Manoj Chaudhary to the hospital. At that time, Pankaj Chaudhary @ Pappu, Gopal Chaudhary and Ramanuj Chaudhary all sons of Dinesh Chaudhary were not present there. In his cross-examination, he has stated that his father has three brothers:- Dinesh Chaudhary, Umesh Chaudhary and Ramesh Chaudhary. They are separate. It is not a fact that Dinesh Chaudhary was constructing a house. At that time, Pankaj Chaudhary @ Pappu, Gopal Chaudhary and Ramanuj Chaudhary all sons of Dinesh Chaudhary were not present there. In his cross-examination, he has stated that his father has three brothers:- Dinesh Chaudhary, Umesh Chaudhary and Ramesh Chaudhary. They are separate. It is not a fact that Dinesh Chaudhary was constructing a house. It is not a fact that he has encroached upon the land of Manoj Chaudhary while the construction was interfered, the occurrence took place. 16. D.W.2 has stated that at the date and time of occurrence, he was going to the house of Mausi by his motorcycle. He stopped the motorcycle. He saw that Manoj Kumar Chaudhary was catching hold of Dinesh Chaudhary. In the meantime, Ram Kumar Chaudhary shot fire. Dinesh Chaudhary and Manoj Chaudhary fell down. He saw that the Manoj Chaudhary got the fire shot injury. The co-villagers assembled there. The dead body of Manoj Chaudhary was taken to the Hospital. In his cross-examination, he has stated that the place of occurrence is about 2 K.M. from his house. 17. D.W.3 is the son of Dinesh Chaudhary. Both are accused in this case. He has stated that his father had engaged labour who was taking out the rubbish from the old Dalan. In the meantime, Ram Binay Chaudhary, Ram Kumar Chaudhary and Ramesh Chaudhary came there with spade and basket and they were taking the rubbish and kept in their cattle shed which was protested by his father. Ram Kumar Chaudhary came there armed with pistol. Ram Binay Chaudhary was armed with Farsa and Ramesh Chaudhary was armed with spade and started to assault his father. Ram Binay Chaudhary assaulted which caused injuries on his head. He (D.W.3) went to his rescue. He was also assaulted with Farsa. He has further stated that the prosecution party was following his father while he was escaping towards soling road. In the meantime, Ramesh Chaudhary shot fire which hit Manoj Chaudhary and both his father and Manoj Chaudhary fell down there and Manoj Kumar Chaudhary died instantaneously there. He has further stated that he brought his father to Nursing Home of Dr. Kanti Mohan Singh at Begusarai where he and his father got medical treatment. The police received the injury report. On the statement of his father Khagaria P.S. Case No.173 of 2002 was instituted. He has proved the fardbeyan which has been marked Ext. He has further stated that he brought his father to Nursing Home of Dr. Kanti Mohan Singh at Begusarai where he and his father got medical treatment. The police received the injury report. On the statement of his father Khagaria P.S. Case No.173 of 2002 was instituted. He has proved the fardbeyan which has been marked Ext. “A”. In his cross-examination, he has admitted that he is one of the accused in this case. He has denied the suggestion of the prosecution that the accused were constructing wall towards the east of exit. He has denied the suggestion that due to firing made by Pankaj, Manoj Chaudhary died. He has stated that Khagaria is at a distance of 5-6 K.M. from his village. He does not know whether there are many doctors in the Sadar Hospital, Khagaria and there are also private clinics of doctors. He has admitted that there is Govt. Hospital at Begusarai. He did not go to the Govt. Hospital, Begusarai. He went to Begusarai by passenger bus. He has also denied the suggestion that the doctor at Begusarai is his relative and as such, injury report has been prepared by him with a view to defend their case. 18. D.W.4 Dr. Kanti Mohan Singh has stated that on 8.05.2002, he received the requisition from A.S.I, Begusarai Town Police Station to examine the injured Dinesh Chaudhary and Shashikant Chaudhary. Accordingly, he examined them in his Nursing Home at Begusarai and issued injury report to both of them on 10.05.2002. Both the injury reports are in his pen and signature which have been marked as Exts. B and B/1. On examination of Dinesh Chaudhary, he found the following injuries on his person : (I) Sharp cut injury over mid of scalp about 2” x ½” diametre x bone deep with profuse bleeding. (II) Swelling and tenderness over left arm about 2” x 2” in diametre. (III) Swelling tenderness and abrasion over right knee joint about 1 ½” x 1/1” in diametre. (IV) Swelling and tenderness over back about 2” x 1/1” in diametre. Injury nos. (II), (III) and (IV) are simple in nature caused by hard and blunt object. The X-ray report called for injury no.(I) and the nature of injury has not been mentioned, but the weapon used was sharp cut. (IV) Swelling and tenderness over back about 2” x 1/1” in diametre. Injury nos. (II), (III) and (IV) are simple in nature caused by hard and blunt object. The X-ray report called for injury no.(I) and the nature of injury has not been mentioned, but the weapon used was sharp cut. He has further stated that on examination of Shashikant Chaudhary, he found the following injuries : (I) Swelling tenderness and abrasion over left wrist joint about 2” x 1/1” in diametre. (II) Swelling tenderness and abrasion over right knee joint about 2” x 1 ½” in diametre. (III) Swelling and tenderness over buttock about 2” x 1 ½” in diametre. The injury no. (I) and (III) are simple in nature caused by hard and blunt object and injury no.(II) is grievous caused by hard and blunt object. In his cross-examination, he has stated that he has not mentioned the time of examination of both the injured and the opinion regarding the time elapsed is based on his own calculation. He has further stated that these injuries cannot be manufactured by friendly hands. On the date of examination, he was posted at Sadar Hospital, Begusarai. He cannot say as to whether the police referred them to Govt. Hospital. He has denied that both the injured were his relatives and reports are collusive and improper. 19. D.W.5 is a formal witness. He has stated that his brother Dr. S.Vivekanand was the Manager in the Vivekanand Nursing Home, New Delhi in the year 2002. He has proved the medical prescription showing that Pankaj Chaudhary was under the treatment of Dr. Vivekanand from 2.05.2002 to 15.05.2002 which has been marked as Ext.C. In his cross-examination, he has stated that he does not live with his brother nor he has any knowledge about the facts of the certificate. 20. The learned counsel for the State has submitted that Manoj Kumar Chaudhary has been killed and he died due to firearms injury on the spot. The learned Trial Court has also held that Manoj Kumar Chaudhary died due to fire shot by the appellant Pankaj Chaudhary @ Pappu Chaudhary, but the learned Trial Court has misdirected that since there was no repetition of firing no case under Section 302 of the I.P.C. is made out, rather, offence under Section 304 (II) of the I.P.C. is made out. The allegation is that apart from other facts two persons Gopal Chauhary and Shashikant Chaudhary (respondent no.2) caught hold of the deceased and the appellant Pankaj Chaudhary shot at the head of Manoj Chaudhary who died on the spot instantaneously. The main ground given by the learned trial court is that there is no repetition of pistol shot. If by one shot firing a person is shot dead, there is no question of repetition of firing. Gopal Chaudhary has not faced the trial and he was absconding, whereas, Shashikant Chaudhary (respondent no.2) who had also caught hold of the deceased has been acquitted by the learned trial court in spite of the evidence of the prosecution witnesses namely P.W.1, P.W.2 and P.W.3. He has also referred the observation made by the learned Single Judge while hearing the learned counsel for the parties on the question of bail to the appellant Pankaj Chaudhary @ Pappu vide order dated 28.01.2006 passed in Cr. Appeal No.574 of 2005 and has referred the following relevant part : “While going through the judgment, this Court is shocked with regard to approach adopted by the trial court in coming to the conclusion that no case under Section 302 IPC is made out, rather 304 Part II IPC is made out. The allegation is that apart from other facts two persons caught hold of the deceased and this appellant shot at the head of Manoj Choudhary who died on the spot instantaneously. If this is not a case of Section 302 IPC then this court has to find out which case falls under the category of Section 302 IPC. The main ground given by the trial court is that there is no repetition of pistol shot. When by one firing shot, a person is shot dead; there is no question of repetition of firing. The other ground is also shocking to conscience” It appears from the evidence of defence witnesses that their evidence does not inspire confidence and is not convincing, as such, their evidence cannot be relied upon. 21. When by one firing shot, a person is shot dead; there is no question of repetition of firing. The other ground is also shocking to conscience” It appears from the evidence of defence witnesses that their evidence does not inspire confidence and is not convincing, as such, their evidence cannot be relied upon. 21. He has further submitted that there is sufficient evidence on the record to prove and hold that Shashikant Choudhary (respondent no.2) has committed offence punishable under Section 302/34 of the I.P.C. He has also submitted that Pankaj Choudhary (respondent no.1) has committed murder of Manoj by firearms and as such he is liable to be punished under Section 302 of the I.P.C. and 27 of the Arms Act. 22. The learned counsel for the respondent as well as the learned counsel for the appellant of Cr. Appeal No.574 of 2005 has submitted that P.W.1, P.W.2 and P.W.3 are interested witnesses who have not proved the genesis of the occurrence nor the manner of occurrence. The prosecution has not been able to explain as to how the accused side has received injuries, whereas, the counter case has explained the injuries of both the sides. The injury received by Dinesh Chaudhary and Shashikant Chaudhary have not been explained. D.W.4 Dr. Kanti Mohan Singh has examined both the accused Dinesh Chaudhary (since absconding) and Shashikant Chaudhary (respondentno.2) and has found injuries on the person of both of them. Shashikant Chaudhary (D.W.3) has been examined on behalf of defence. 23. In reply to the submission, learned counsel for the State has submitted that it appears from the evidence of D.W.4 that Dinesh Chaudhary and Shashikant Chaudhry have been examined in the private Nursing Home at Begusarai, whereas, the occurrence has taken place in the district of Khagaria and the Sadar Hospital is also available at Khagaria at a short distance. With a view to create defence, both of them have gone to Begusarai in a private Nursing Home of D.W.4 to get the injury report in their favour. 24. It appears from the injury report and the evidence of D.W.4 that most of the injuries are simple in nature. The injuries found on the person of Dinesh Chaudhary were in simple in nature and the injuries found on the person of Shashikant Chaudhary were also simple in nature except injury no.2. Such injuries are not vital and not visible. It appears from the injury report and the evidence of D.W.4 that most of the injuries are simple in nature. The injuries found on the person of Dinesh Chaudhary were in simple in nature and the injuries found on the person of Shashikant Chaudhary were also simple in nature except injury no.2. Such injuries are not vital and not visible. As such, the prosecution cannot be expected to explain the minor injuries on the person of the accused. 25. After hearing the learned counsel for both the parties and on perusal of the record, it appears that submission made by the learned counsel for the State is convincing. It further appears that the occurrence has taken place near the house of both the parties. P.W.1, P.W.2 and P.W.3 are certainly the near relatives of the deceased as P.W.1 and P.W.3 are the brothers of the deceased and P.W.2 is father of the deceased. They are certainly interested witnesses. The evidence of these witnesses is constant, reliable and trustworthy. Their evidence stands corroborated by the medical evidence (P.W.4), as such; the evidence of these witnesses cannot be brushed aside and disbelieved. The Investigating Officer (P.W.5) has also found bloodstain on the place of occurrence. 26. It appears from the evidence of P.W.1, P.W.2 and P.W.3 that Shashikant Chaudhary (respondent no.2 and D.W.3) and Gopal Chaudhary (since absconding) had caught hold of Manoj Kumar Chaudhary (deceased) while he was going to rescue his brother Ram Kumar Chaudhary (P.W.3) from being assaulted by the accused. Shashikant Chaudhary and Gopal Chaudhary caught hold of Manoj Chaudhary and at the instance of Ramanuj Chaudhary (absconding), Pappu @ Pankaj Chaudhary shot fire in the head of Manoj Chaudhary causing his instantaneous death. 27. Considering all the facts and circumstances stated above, we find that Pankaj Chaudhary @ Pappu Chaudhary has committed the offence punishable under Section 302 of the I.P.C. and also offence punishable under Section 27 of the Arms Act and Shashikant Chaudhary has also actively participated in the occurrence with intention to kill the deceased Manoj Kumar Chaudhary who was going to rescue his brother Ram Kumar Chaudhary (P.W.3) while he was being assaulted by the accused. Thus, we find that the prosecution has also been able to substantiate its charge for the offence punishable under Section 302 read with Section 34 of the I.P.C. against Shashi Kant (respondent no.2). 28. Thus, we find that the prosecution has also been able to substantiate its charge for the offence punishable under Section 302 read with Section 34 of the I.P.C. against Shashi Kant (respondent no.2). 28. It has also been the principle of criminal jurisprudence that no innocent person should be convicted at the same time the Court has also to see that no culprit should go unpunished. 29. For the reasons stated above, in our opinion, the impugned judgment of conviction and sentence is not fit to be sustained. It is set aside. The respondent Pankaj Chaudhary @ Pappu Chaudhary, who is also appellant of Criminal Appeal No.574 of 2005 and Respondent no.2 Shashikant Chaudhary are held guilty and accordingly, Pankaj Chaudhary @ Pappu Chaudhary is convicted and sentenced to undergo rigorous imprisonment for life and a fine of Rs.10,000/- under Section 302 of the I.P.C. and in case of default in payment of fine, he would be liable to be further sentenced for a period of six months; and he is also convicted and sentenced to undergo rigorous imprisonment for three years for the offence punishable under Section 27 of the Arms Act. Both the sentences will run concurrently. The respondent no.2 Shashikant Chaudhary is convicted and sentenced to rigorous imprisonment for life under Section 302/34 of the I.P.C. and a fine of Rs.5000/- and in default of payment of fine, simple imprisonment for three months. Pankaj Chaudhary is already in custody. The respondent no.2 Shashikant Chaudhary is on bail. The bail bond of respondent no.2 Shashikant Chaudhary is cancelled and he is directed to surrender before the learned trial court to serve out the sentence within one month. If he does not surrender within a period of one month in the Trial Court i.e. learned Additional Sessions Judge, FTC.V, Khagaria in Sessions Case No.261 of 2002, non-bailable warrant of arrest shall be issued against him by the learned trial court so as to secure his presence for the purpose of serving out the sentence. The amount of fine if realized would be paid to the widow of the deceased Manoj Chaudhary who was a young employee in the Central Industrial Security Force. 30. In the result, the Govt. Appeal No.3 of 2006 is allowed and the Cr. Appeal No.574 of 2005 (S.J.) is dismissed. Shyam Kishore Sharma, J.—I agree. Appeal dismissed. Govt. Appl. Allowed.