B. Amit Sthalekar, J. The two appellants herein Tufani ( A-1) and Ram Krishan Pandey ( A-2), both accused of Crime No.456 of 1979, Police Station Kotwali, District Deoria, were tried by 4th Additional Sessions Judge, Deoria in S.T. No.372 of 1981, State Vs. Tufani and another and were convicted and sentenced by the learned trial Judge. Whereas ( A-1) was convicted u/s 148, 323, 324, 307 and 302/149 I.P.C. and was sentenced to one year R.I. on the first count, three months R.I. on the second count, one year R.I. on the third count, three months R.I. on the fourth count and life imprisonment on the last count, Ram Krishan Pandey ( A-2) was convicted u/s 147, 323/149, 324, 149, 323/149, 324/149, 307, 149, 302/149 I.P.C. For the first offence he was sentenced to six months R.I., for the second crime three months R.I., for the third offence one year R.I., for the fourth offence three months R.I. and for the last crime imprisonment for life, vide impugned judgement and order dated 24.8.1982. Questioned in this appeal by the two appellants are to their aforesaid conviction and sentence. Pendente lite final outcome of their appeals, Ram Krishan Pandey ( A-2) expired and consequently his appeal was abated on 4.12.07.Appeal of sole surviving appellant Tufani ( A-1), remains to be decided by us and we hereby proceed to do the same. Prosecution story against the appellant was narrated in the written F.I.R., Exhibit Ka-1, which was elaborately divulged by the informant Bihagar P.W. 2, in the Sessions Trial. Perusal of both the above evidences, revealed that Vishwanath, ( deceased No.1) and his real sibling brother Chandra Deo were originally a resident of village Sighai, which was one and a half miles away from village Chandauli under police Circle Kotwali, district Deoria but later on they shifted their residential abodes and came to reside in village Chandauli. Vishwanath ( deceased No.1) had two sons Bihagar ( informant) and Shiv Narain ( deceased no.2). Families of the Vishwanath and Shiv Narain had a common abode. Dhanpali( injured) is the sister of the informant and daughter of deceased no.1 and her husband Sudarshan,is one of the injured in the present incident. Tijiya is the mother of the informant and wife of deceased No. 1. Families of the Vishwanath and Shiv Narain had a common abode. Dhanpali( injured) is the sister of the informant and daughter of deceased no.1 and her husband Sudarshan,is one of the injured in the present incident. Tijiya is the mother of the informant and wife of deceased No. 1. Appellant ( A-2) was a co villager of the informant being resident of same village Chandauli whereas ( A-1) is a resident of village Aktaha. Houses of the deceased and Ram Krishan Pandey ( A-2) were adjoining having a common boundary wall towards west of the village population ( abadi) at a lonely place. Main door of the house of the informant was towards east and north of it was a passage, which ran through east and west and further north of this passage was the agricultural field of Ram Krishan Pandey ( A-2). After the east west passage there were agricultural fields. Towards east of informant's house was a concrete road. South of the house of the informant was his cattle shed and thereafter there is a narrow lane. Being neighbours ( A-2) used to engage informant and his family members as labourers but he never paid them their labour charges. With an idea of uproot deceased families and grab their entire property that appellant ( A-2) had instituted a criminal case against Shiv Narain ( deceased No.2), and Chandra Deo, a year ago in which case they were acquitted two months prior to the present occurrence. Previous evening of the present incident at 6 p.m. ( A-2) had visited informant and the deceased at their house and had threatened them to shoot them down and had also accosted deceased No.1 that he will set him right, for the reason that later ( informant and his family members) had refused to plant his sugar cane crops by remonstrating ( A-2) that he had implicated them in a false case. ( A-1) was a friend of ( A-2) and used to visit his house of and on and that is how he was known to the informant and his family members, who had no personal grudge or animosity with him. ( A-1) was a friend of ( A-2) and used to visit his house of and on and that is how he was known to the informant and his family members, who had no personal grudge or animosity with him. Motivated by the lust for the property, on 16.7.79 at 7.30 p.m., the two appellant accompanied by three or four other miscreants came to the house of the informant/deceased, when the informant, the two deceased ( Vishwanath and Shiv Narain), brother Chandra Dev and injured Sudarshan were sitting on two cots, six or seven paces away towards east of their cattle shed. A lantern was emanating lights in front of their door. Informant flashed his torch and recognised the two appellants ( A-1) & ( A-2) by name and rest of the miscreants by their faces. No sooner their arrival ( A-2) assaulted on the back of the informant with his lathi, who sprinted away to save his life after sustaining injury. On this Vishwanath ( deceased No.1), inquired as to who they were on which ( A-1) threw a bomb at him. Sustaining bomb injury Vishwanath fell down. ( A-1) thereafter, hurled another bomb on Shiv Narain ( deceased no.2), who, sustaining bomb injury squatted on the ground. A third bomb again was hurled by ( A-1) towards the informant, who at that moment was sprinting to save his life, and therefore, he sustained injury on his right ankle. Informant and his uncle raised hue and cry, which attracted sister Dhanpali, mother Tijya and Darshan ( all injured) at the incident scene. Appellant ( A-2) assaulted Dhanpali also by lathi. Committing the incident all the assailants escaped in the same direction from which they had arrived at the place of the incident. Sustaining bomb injuries Vishwanath as well as Shiv Narain, both lost their lives at spot itself. After half an hour this double murder informant rushed to vilage Singhai to seek help of Tufani, Kamti, Digai, Ram Bhawan and others, but they refused to give him a helping hand and therefore, informant returned back to the incident village Chandauli. This to and fro journey consumed another an hour. After half an hour this double murder informant rushed to vilage Singhai to seek help of Tufani, Kamti, Digai, Ram Bhawan and others, but they refused to give him a helping hand and therefore, informant returned back to the incident village Chandauli. This to and fro journey consumed another an hour. Meanwhile nobody from village Chandauli also arrived at the incident scene to help the informant and therefore no sooner his return from village Singhai, the informant accompanied by all the three injured started bare footed for P.S. Kotwali at a distance of six kilo metres and covered that distance in two/two and half hours. Near the police station Kotwali, informant took out a diary from his pocket, penned down his FIR Exhibit Ka-1, sitting on a culvert and then came to the police station Kotwali and lodged his report. Head Mohrir Paras Nath Tiwari registered the FIR by slating Chik FIR of Crime No. 456 of 1979, Exhibit Ka-3, and the corresponding relevant G.D. Entry 43, Exhibit Ka-4 the same day at 11.10 p.m. In the trial both these exhibits Ka-3 and 4, have been proved by the first I.O. S.I. Shyam Lal P.W.5. Informant and injured were then sent for their medical examinations and treatment. Engineering investigation into the crime I.O. S.I. Shyam Lal, P.W. 5, flanked by S.H.O. Ram Sumer Yadav, S.I. Radhey Shyam Tiwari, S.I. Jai Shankar Yadav and Constables Shankar Dev and Ram Raj, came to the murder spot, arranged for the lights but it being in-sufficient could not conduct the inquest on both the cadavers and therefore deputed Constable Ram Raj Yadav to guard both the corpse and I.O. himself raided the house of the accused, who were at large. Following day ( 17.9.1979), inquest on both the cadavers were performed by the first I.O. P.W.5, who prepared inquest memos Exhibit Ka-5 ( inquest memo of Vishwanath) and Exhibit Ka-9 ( inquest memo of deceased Shiv Narain). Other relevant papers of photo lash, challan lash, seal impressions, letters to C.M.O. and R.I., were also prepared which documents are Exhibits Ka-6, Ka-7, Ka-8, Ka-10, Ka-11, Ka-12, Ka-14, Ka-15 and Ka-16. After concluding inquest proceedings both the dead bodies were sealed and were handed over to constables Shankar Dev, P.W.1, and Ram Raj to be carried to the mortuary for autopsy purposes. The first I.O. P.W.5 thereafter, interrogated the inquest witnesses. After concluding inquest proceedings both the dead bodies were sealed and were handed over to constables Shankar Dev, P.W.1, and Ram Raj to be carried to the mortuary for autopsy purposes. The first I.O. P.W.5 thereafter, interrogated the inquest witnesses. Meanwhile, informant and other injured returned to the incident village after getting medial aid and therefore, I.O. interrogated the informant and the injured and penned down their statements. The torch and the lantern were inspected by the I.O., who seized them and prepared it's recovery memo Exhibit Ka-2. Thereafter spot inspection was conducted by the I.O. who then sketched site plan Exhibit Ka-17. Blood stained and plain earth were also collected by the I.O. from places A and B shown in his site plan and were sealed in different containers and their recovery memo Exhibits Ka-18 and Ka-19 were inked. Splinters of bomb were also collected by the I.O., who prepared the recovery memo in that respect, which is Exhibit Ka-20. At place "D", in the site plan, the blackening, which was caused due to lantern burning was shown. Accused persons were searched but could not be apprehended. ( A-1) was arrested on 22.9.1979 and thereafter, concluding the investigation, I.O. charge sheeted both the accused, vide Exhibit Ka-21, on 11.10.1981. On the basis of the charge-sheet, Exhibit Ka-21, Criminal Case No.580 of 1979 was registered in the committal Court of C.J.M., Deoria who, finding the disclosed offences triable by Sessions Court, committed the case to the Sessions Court for trial on 21.8.1981. Before the Session's Court case was registered as S.T. NO.372 of 1981, State Vs. Tufani and another and the same was transferred to the Court of VIth Additional Sessions Judge, Deoria for trial who later on became Ivth Additional Sessions Judge. Learned trial Judge charged both the appellants on 29.10.1981. Whereas appellant Tufani ( A-1) was charged u/s 148, 302/149 and 323/149 I.P.C., ( A-2) was charged for offences u/s 147, 302/149, 307/149 and 323/149 IPC. Both the charges were read out and explained to the accused in hindi, who both, after understanding the same, denied their respective charges and claimed to be tried and consequently, to bring their guilt home and anoint the offence committed by them, their trial commenced by resorting to Sessions Trial procedure. Both the charges were read out and explained to the accused in hindi, who both, after understanding the same, denied their respective charges and claimed to be tried and consequently, to bring their guilt home and anoint the offence committed by them, their trial commenced by resorting to Sessions Trial procedure. Prosecution, in it's effort, to establish the accused guilt tendered in all seven witnesses during the trial, out of whom informant Bihagad P.W. 1 injured Dhanpali P.W. 2 and Sudarshan P.W. 3 were the fact witnesses. I.O., S.I. Shyam Lal P.W. 5, Dr. B.L. Gupta, who had examined all the injured, P.W.6 and Dr. C.V. Singh, who had conducted autopsy on the two cadavers P.W. 7 were the formal witnesses. Both the accused in their examinations under section 313 Cr.P.C. pleaded a common defence of prosecution story being false, witnesses being inimical and therefore pleaded their false implication. ( A-1) further took the defence that he is inimical with one Ram Suhawan Pandey and since the fact witnesses were his supporters and yes men, therefore in conspiracy with him, that they had falsely implicated him. Since( A-2) is dead, we eschew from recording his defence version, which also contained a plea of alibi, but we record here that, in his defence ( A-2) had examined Baij Nath Singh, advocate as D.W. 1, to establish his plea of alibi. Said defence witness had deposed that ( A-2) was present along with him on the incident date and time and infact at the time of the incident a dacoity was committed in the village in which deceased had lost their lives and injured had sustained injuries. As is already stated herein above, in the opening paragraph of this judgment, learned trial Judge believed the prosecution witnesses and finding their testimonies creditworthy convicted and sentenced the appellants as aforesaid, by impugned judgement and order, which opinion and conclusions by the learned trial Judge is now under challenge before us. In the backdrop of preceding factual matrix that we have heard Miss Satya Srivastava, learned amicus curiae appointed by us, who was later on joined by Mr. I.N. Mulla, learned advocate for the sole surviving appellant Tufani ( A-1). We have also heard Mrs. Raj Laxmi Sinha, learned AGA for the prosecutor respondent State. In the backdrop of preceding factual matrix that we have heard Miss Satya Srivastava, learned amicus curiae appointed by us, who was later on joined by Mr. I.N. Mulla, learned advocate for the sole surviving appellant Tufani ( A-1). We have also heard Mrs. Raj Laxmi Sinha, learned AGA for the prosecutor respondent State. Assailing the impugned judgment of conviction and sentence and arguing for the appellant ( A-1), both the counsel made following castigations. They firstly contended that the incident night was a dark night with out any source of light, as has been admitted by the witnesses, and consequently identification of the accused by the witnesses was not possible. It was next submitted that the FIR is ante timed and a case of dacoity was given a colour of murder case by the informant in connivance with the police only to frame-in the appellant because of enmity. Investigation into the crime was shoddy, lop sided, unfair and tainted and investigating office abjured his responsibility in conducting a fair and impartial investigation. He, in hand and gloves, malafidely charge sheeted the appellant. Injuries of the injured were fabricated and manufactured and that is why their medical examinations were conducted very belatedly. FIR is the outcome of deliberations and consultations and is a piece of concoction. Informant had not witnessed the incident and was not present at the incident scene and it is because of this reason that neither in the written FIR, Exhibit Ka-1, nor in the interrogatory statements u/s 161 Cr.P.C. informant or any of the injured named in the FIR had disclosed to the I.O. factum of injury being sustained by Dhanpali, Tijya, and Darshan, although they had accompanied the informant to the police station. The contention raised was that injuries of these injured were got manufactured subsequently only to escalate the crime after fabrication of the FIR to implicate the appellant. Autopsy reports of the two deceased indicate that ocular version is at variance with post mortem examination reports in as much as according to fact witnesses at the time of the incident dinner was being cooked, whereas stomach contents of Shiv Narain shows existence of identifiable food material, meaning thereby that he already had dinner. Autopsy reports of the two deceased indicate that ocular version is at variance with post mortem examination reports in as much as according to fact witnesses at the time of the incident dinner was being cooked, whereas stomach contents of Shiv Narain shows existence of identifiable food material, meaning thereby that he already had dinner. On the basis of this alleged discrepancy it was suggested that the incident had occurred much later in point of time than as alleged by the prosecution and in fact dacoity was committed at 10/11 p.m. when the witnesses had already dined. It was next submitted that because of enmity and hostility between appellant ( A-2) with one Ram Suhawan Pandey, a rich and influential person of the locality, that the appellant has been falsely implicated because of friendship with ( A-2). With the aforesaid submissions, learned AGA as well as Mr. I.N. Mulla, advocate drew curtain of their submissions by urging that appellant's ( A-1) appeal be allowed and he be acquitted of the charge levelled against him be set at liberty. Per contra, Mrs. Raj Laxmi Sinha, learned AGA submits that two persons had lost their lives and three others had sustained injuries in the incident in the glare of all the fact witnessed. Medical evidence lends supportive corroborative evidence about the prosecution story in it's entirety. Presence of injured during the incident cannot be doubted and there was no reason for them to spare the real assailants and nail in unconcerned persons in this double murder incident of their closest relatives. There was sufficient source of light at the spot and very queerly defence had not strongly challenged existence of such lights. The flickering of lights emanating from the lantern and consistent flashing of torch were sufficient to identify known neighbours and his associates, who were regular visitors in the village submits learned AGA. Expert testimonies are consistent and corroborative of prosecution version and do not support defence version at all. Since fact witnesses were not at all questioned about the time when the witnesses and the two deceased had dined therefore appellant cannot be permitted to make mountain out of mole hill without affording any opportunity to the witnesses to explain that fact and hence argument regarding medical inconsistency with eye witness account suggested by the appellant is a submission based on no evidence and has to be repelled. Delay whatever had occasioned in lodging of the FIR has been sufficiently explained by the informant with convincing clarity and plausible explanation and hence there was not enough time for the informant to fabricate a story and resultantly what- ever was narrated in the FIR was the true recapitulation of the actual incident argued learned AGA. Non mentioning of the names of some of the injured in the FIR strengthens the prosecution version as it rules out possibility of concoction and fabrication argued learned State counsel. Medical examination of the injured were conducted in the night itself, which also makes prosecution case creditworthy and authenticates veracity of the prosecution story. All the fact witnesses had no reason at all, not even the slightest and worth in name, to implicate ( A-1) as reasons for the same never existed since ab initio. Furthermore there was total absence any reason for the witnesses to spare the real assailant and anoint main role to the appellant ( A-1) of hurling bombs on the deceased and the injured including the informant. There is no major fault in the investigation on the basis of which creditworthy testimonies of the prosecution witnesses can be condemned and discarded argued learned AGA. Concludingly it was contended by the learned State counsel that appeal of ( A-1) lacks merit and be dismissed with affirmation of his conviction and sentence. We have pondered over rival submissions and have bestowed our deepest thoughts to both oral and documentary evidences existing on record to cull out the truth and separate the grain from the chaff. From our such an exercise, it transpires that so far as date, time, place of the incident and presence of deceased and injured are concerned, the defence has not challenged it at all. What has been questioned is only the manner in which it had occurred. It is the defence plea itself that an incident did occur at the time and date alleged by the prosecution in which both the deceased lost their lives and injured had sustained injuries, albeit, according to defence case, it was an incident of dacoity and not of murder. Thus what is admitted and established on record is the date, time and place of the incident along with presence of deceased and injured. What is also proved is that deceased lost their lives and injured were caused injuries in that incident. Thus what is admitted and established on record is the date, time and place of the incident along with presence of deceased and injured. What is also proved is that deceased lost their lives and injured were caused injuries in that incident. Use of bombs has also not been challenged and hence it can be safely concluded that bombs were used during that incident. Thus what remains to be adjudged and decided is as to whether prosecution allegations of murder being committed is a more credible version or defence story of dacoity being committed is a probable one? When evidences are analysed to examine aforesaid fact it emerges that the prosecution version from the very inception of it being a case of murder is consistent without digressing from it even slightly. Motive for the murder was narrated in the FIR which, on the facts and circumstances of the appeal, was lodged without any undue delay. It was mentioned in the FIR itself that ( A-2) wanted to uproot informant's family and was not paying them their labour charges. Informant's family members were implicated in a false case as well but they were acquitted by the criminal court just two months prior to the present murder. One day prior to the murder ( A-2) had thrown threats also to the informant and his family members. This motive part was reiterated during the trial by the informant which is clear from pages 2/3, para 2 of his examination-in-chief. No cross examination of this witness was directed to dislodge these motives by the accused. It is very weird that accused did not even attempt to challenge the motive. The irresistible conclusion therefore is that the motives alleged by the prosecution were a correct narration of facts. Thus there were more than one reason for the appellant to orchestrate the incident and commit the murders. Coming to the actual incident all the three fact witnesses were searchingly cross examined by the defence but it failed to cull out any damaging evidence from both of them. Both ( A-1) and ( A-2) had separate defence counsel during trial and both of them had cross examined all the fact witnesses, PW 2, 3 & 4, at a great length but without much success and they failed to get elicited from them any deposition which may dent the veracity of the prosecution version even slightly. Both ( A-1) and ( A-2) had separate defence counsel during trial and both of them had cross examined all the fact witnesses, PW 2, 3 & 4, at a great length but without much success and they failed to get elicited from them any deposition which may dent the veracity of the prosecution version even slightly. On this aspect a reference may be made to the depositions of the informant at pages 4/5 of his examination -in- chief and pages 16/17/18 of his cross examinations. Transliteration of his testimonies are as under- Pages 4/5 "Then accused Ram Krishan assaulted at my back with lathi, after receiving blow by lathi, I ran because of which, the sustained blow was lighter. On this, my father inquired who was there on which accused Tufani threw one bomb on him sustaining injury by which my father had fallen down and thereafter accused Tufani hurled another bomb at my brother Shiv Narain who also fell down after sustaining bomb injury. Third bomb was hurled by Tufani towards me, I ran and therefore, that bomb caused injury to me behind my right ankle. I raised hue and cry on which my mother Tijya sister Dhanpali arrived. They were also belaboured by lathi. My mother sustained lathi injury and sister sustained bomb injury. My relative Sudarshan also received lathi injury at his temple. Assaulting us, accused persons escaped towards west from which direction they had come. My father and brother died instantaneously." Pages 16/17/18/19 "Accused has approached both the cots from south and had not arrived from all corners. When I was assaulted with lathi then accused Ram Krishan was towards south of me. At that moment, I was facing north. When I was assaulted with lathi then I ran. After running, I came to the cattle mound at 7 paces of my house and stood at that mound. When bomb was hurled at me, I was facing east. I ran when the bomb was hurled. I was 5 paces east of the mound when I sustained bomb injury. I did not cross the road. I stopped at 5 or 7 paces where I had received bomb injury. Blood had tickled down at the place from by foot where I had sustained bomb injury, I do not remember whether that place was shown by me to the I.O. or not. I did not cross the road. I stopped at 5 or 7 paces where I had received bomb injury. Blood had tickled down at the place from by foot where I had sustained bomb injury, I do not remember whether that place was shown by me to the I.O. or not. When I was standing at the cattle mound then first bomb was thrown at my father. Sustaining bomb injury, my father did not fell down on the cot but 3 or 4 paces north of it. Assailants at that moment were towards south of his cot. When Shiv Narain sustained bomb injury then he was north of my father at 8 paces. When my brother was assaulted with bomb then assailant was towards north of the cot. In all three bombs were hurled. Bomb fell down on the chest of Shiv Narain and at that very place, sustaining injury, Shiv Narain fell down and died. My father had sustained bomb injury on his waste and bomb had exploded there. After injury sustained by bomb, I raised hue and cry. On my shrieks and sound of bomb explosion, ladies of the house came out. All the three bombs were hurled one after another in quick successions. Sudarshan had sustained injury on the right shoulder, temple and finger. Shoulder injury was caused by lathi. I do not remember whether it was contusion or not. When medical examination was done then the doctor had seen the shoulder injury of Sudarshan as well. I do not remember whether Tijya had sustained lathi injury or not and how many injuries and where she had sustained. In all, there were five assailants. Accused Tufani was armed with bomb and rest were armed with lathi. My mother and Sudarshan were belaboured by lathi by these people. I had shown my back injury at the police station but there was no mark of it." Further at pages 22/23/24 of his cross examination by the counsel for the present appellant Tufani( A-1), informant P.W. 2 has stated as under- Pages 21/22/23/24 "Incident night was a dark night. I have seen a bag with Tufani in which he had kept bombs. When he took out the bomb and hurled it then I came to know that the bag contained bombs. I have seen a bag with Tufani in which he had kept bombs. When he took out the bomb and hurled it then I came to know that the bag contained bombs. After taking out the bomb, it were hurled immediately and therefore, I could not see the size of the bombs. Bomb had fallen on the body of my father and had exploded. The place of the body of my father where the bomb had exploded, the skin had burnt and had peeled off. I have not seen the pieces of flesh and skin fell down on the ground. My father was assaulted from 6 or 7 paces distance. Smoke had emitted from exploding of bomb. After throwing first bomb, the second bomb was thrown. After first bomb was thrown, people who were present there were not running towards north, self tendered that my uncle had run away as soon as miscreants had arrived. I stood near the cattle mound, Sudarshan was standing towards east of the cot at close by towards east. When my brother Shiv Narain was assaulted by second bomb, he was running towards north, self tendered that he wanted to enter inside the house. After first bomb, second bomb was hurled immediately. From where my father had fallen down 1 or 2 paces south of that the second bomb was hurled. From the second bomb also smoke had emitted. The flesh and the skin of my brother had not fallen down at the place where he had sustained bomb injury. Third bomb was hurled towards me which fell down on the ground and exploded. When that bomb exploded, I was running towards east and therefore, I could not see the distance behind me where the bomb had exploded. I could not see whether the spot, where the bomb had exploded, had blackened or not. This thing I did not spot even in the morning. When Tufani was hurling bomb then other assailants were hither and thither at the door. When the first bomb was hurled, rest of the four assailants were hither and thither south of my father and towards south of accused Tufani as well. When second bomb was hurled even then Tufani was towards south. When I was assaulted with bomb even then rest of the miscreants were towards south of Tufani here an there. When the first bomb was hurled, rest of the four assailants were hither and thither south of my father and towards south of accused Tufani as well. When second bomb was hurled even then Tufani was towards south. When I was assaulted with bomb even then rest of the miscreants were towards south of Tufani here an there. The ladies of my house came out after hurling bomb was over." Informant PW2 has been corroborated by other two witnesses Dhanpali, PW3 and Sudarshan, PW4. Both of them have deposed in most conspicuous terms that it was appellant ( A-1) who had assaulted the injured and the decease with bombs kept in a bag. Pages 2/3 and 4 of the depositions of PW3 makes it abundantly clear that she had lent credence to the prosecution story in all it's material aspects. She had evidenced as under- Pages 2/3&4 "Accused Tufani had carried a bomb in bag in his hand and Accused Ram Krishan and others carried lathi when I came out accused Tufani assaulted my brother Shiv Narain with bomb. Sustaining bomb injury, he immediately fell down. In the light of the lantern and flashing torch by Bihagar I had seen the incident. Accused Tufani had threw a bomb at my brother Bihagar causing injury to my brother Bihagar in the leg. Near, beneath my eye and on my hand I also sustained bomb injury. Accused Ram Kisun and other accused had assaulted my mother and Sudarshan with lathis. Bihagar was assaulted with lathi by Ram Krishan. After the incident accused and their associates ran away." She had further deposed as under- "Bihagar was running two paces away from cattle mound when Ram Krishan assaulted Bihagar with a lathi which had landed on his back. When Bihagar was three paces away from cattle mount he sustained bomb injury from the place where lathi injury was caused, bomb injury was caused only one pace away. The person who was throwing the bomb was south west of Bihagar. The person who was throwing bomb at Bihagar was 7 or 8 paces East. Where I was standing Sudarshan, Tijya were not standing. Shiv Narain had fallen down three paces East towards front door of the house. Smoke had emitted from throwing of bomb. All accused had assaulted. Tijya with lathi, which was hurled in discriminatory. Sudarshan, Tijya have fallen down sustaining lathi injuries. Where I was standing Sudarshan, Tijya were not standing. Shiv Narain had fallen down three paces East towards front door of the house. Smoke had emitted from throwing of bomb. All accused had assaulted. Tijya with lathi, which was hurled in discriminatory. Sudarshan, Tijya have fallen down sustaining lathi injuries. Both of them had fallen down two paces north of the door. After falling down accused continued to assault them with lathi." Last fact witness Sudarshan PW4 has further credited testimonies of his predecessor witnesses when he stated that- "3. Accused Ram Krishan gave one lathi blow at Bihagar. Bihagar ran away from there and stood at some distance. My father-in-law Vishwanath said who was it then accused Tufani hurled bomb at him, which bomb caused him fatal injury and he died instantaneously. Shiv Narain got up from cot and ran. When Vishwanath was caused bomb injury then Shiv Narain had turned his head and immediately accused Tufani hurled another bomb at Shiv Narain which hit him and sustaining injury, he fallen down and died. 4. Accused Tufani had hurled one more bomb which had caused injury to Bihagar in leg and Smt. Dhanpali beneath her eye. I also received one lathi injury near my ear and finger but I could not recognise the assaulter. After assault all these accused reiterated in the same way." Thus from above the referred evidences it is evident that all the fact witnesses have lent credence to the prosecution story convincingly and defence had failed to shatter their evidences. The net result is that all the fact witnesses are creditworthy, truthful and reliable and their testimonies cannot be discarded as false or embellished. Here we would like to point out that although the accused took a plea of dacoity being committed on the ill-fated day, and the burden lay on them to establish the same on preponderance of probability but they miserably failed to discharge their burden by leading even slightest evidence for that. None of the fact witnesses were cross-examined on the said defence story nor any circumstance, whether oral or documentary, was produced by them to make their defence probable. Even through the depositions of D.W.1, they failed to bring on record sufficient evidence that an incident of dacoity did occur in the village at the date and time alleged by it. None of the fact witnesses were cross-examined on the said defence story nor any circumstance, whether oral or documentary, was produced by them to make their defence probable. Even through the depositions of D.W.1, they failed to bring on record sufficient evidence that an incident of dacoity did occur in the village at the date and time alleged by it. Very pitiably, and to say the least, remorsefully, defence had failed to establish, even on preponderance of probability, the case of dacoity and therefore, false defence pleaded by the accused is an added incriminating circumstance against him. Thus from the above discussion there remains little doubt that so far as present appellant is concerned prosecution version is clear, consistent, coherent, with specific assignment of role and active participation into the crime. There are two other incriminating circumstances of vital importance having effective bearing on the outcome of the appeal and they are firstly that FIR about the incident was lodged without any delay and whatever time was consumed in lodging it is convincingly well explained. Since informant and the deceased were originally resident of village Singhai, and since in the village of the incident their house was away from village population and since the assailants also belonged to the same village, therefore it was but natural for the informant to rush to village Singhai to seek help from his acquaintances. Since no body became ready to help the informant he had to return back to the place of the incident bare handed and no sooner his return arrival that he, alongwith the injured, marched to the police station. Thus chances of FIR being embellished or being concocted is very remote. On the one hand it negates appellant's contention that the FIR is fabricated and manufactured and on the other it provides assurance to the prosecution case. Another significant circumstance is that albeit informant and the deceased had direct enmity with ( A-2), they never tried to bolster up their allegation by assigning him the main role and instead narrated what exactly happened and assigned the main role to the present appellant and their allegation is well supported by medical evidences. Splinters of bomb found on the spot with blood stained soil also corroborates prosecution story. Splinters of bomb found on the spot with blood stained soil also corroborates prosecution story. That there was sufficient light available at the spot is also clear from the recovery of torch and lantern by the I.O. and this is an additional evidence against the appellant. So far as criticism in respect of investigation is concerned it is now too well settled by a catena of decisions of this court as well as by the Apex Court that illegality or irregularity into investigation or it being tainted is insufficient to plummet the otherwise convincing and creditworthy eye witness account of the incident. In this respect some of the exemplar decisions are referred to as under:- In Amar Singh versus Balwinder Singh: AIR 2003 SC 1164 =2003 Cr. L.J.1282, Apex Court has been pleased to observe as under:- "Coming to the last point regarding certain omissions in the DDR, it has come in evidence that on the basis of the statement of P.W. 4 Amar Singh, which was recorded by P.W. 14 Sardara Singh, S.I. in the hospital a formal FIR was recorded at the Police Station at 9.20 p.m. In accordance with Section 155, Cr. P.C. the contents of the FIR were also entered in the DDR, which contained the names of the witnesses, weapons of offence and place of occurrence and it was not very necessary to mention them separately all over again. It is not the case of the defence that the names of the accused were not mentioned in the DDR. We fail to understand as to how it was necessary for the investigation officer to take in his possession the wire gauze of the window from where A-1 is alleged to have fired. The wire gauze had absolutely no bearing on the prosecution case and the investigating officer was not supposed to cut and take out the same from the window where it was fixed. It would have been certainly better if the investigating agency had sent the fire arms and the empties to the Forensic Science Laboratory for comparison. However, the report of the Ballistic Export would in any case be in the nature of an expert opinion and the same is not conclusive. It would have been certainly better if the investigating agency had sent the fire arms and the empties to the Forensic Science Laboratory for comparison. However, the report of the Ballistic Export would in any case be in the nature of an expert opinion and the same is not conclusive. The failure of the investigating officer in sending the fire arms and the empties for comparison cannot completely throw out the prosecution case when the same is fully established from the testimony of eye-witnesses whose presence on the spot cannot be doubted as they @ page-CriLJ1291 all received gunshot injuries in the incident. In Karnel Singh v. State of M.P., ( 1995) 5 SCC 518 , it was held that in cases of defective investigation the Court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect and to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. In Paras Yadav and others v. State of Bihar, ( 1999) 2 SCC 126 , while commenting upon certain omissions of the investigating agency, it was held that it may be that such lapse is committed designedly or because of negligence and hence the prosecution evidence is required to be examined de-hors such omissions to find out whether the said evidence is reliable or not. Similar view was taken in Ram Bihari Yadav v. State of Bihar, ( 1998) 4 SCC 517 , when this Court observed that in such cases the story of the prosecution will have to be examined de-hors such omissions and contaminated conduct of the officials, otherwise, the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice. In our opinion the circumstances relied upon by the High Court in holding that the investigation was tainted are not of any substance on which such an inference could be drawn and in a case like the present one where the prosecution case is fully established by the direct testimony of the eye-witnesses, which is corroborated by the medical evidence, any failure or omission of the investigating officer cannot render the prosecution case doubtful or unworthy of belief." In State of Rajasthan versus Kishore:AIR 1996 SC3035 it has been observed by the apex court as under- "18. It is equally true that the investigating officer P. W. 8 committed grave irregularity in omitting to send the burnt clothes and other incriminating material for chemical examination to lend corroboration to the evidence. Mere fact that the investigating officer committed irregularity or illegality during the course of the investigation would not and does not cast doubt on the prosecution case nor trustworthy and reliable evidence can be cast aside to record acquittal on that account." Concluding our discussion we are of the opinion that prosecution had established the charge against the appellant( A-1) to the hilt without any shadow of doubt and therefore conviction of the appellant, on all the counts, as is recorded in the impugned judgement does not call for any interference by us and therefore we hereby affirm appellant's conviction u/s 148,323,324,307,and 302/149 I.P.C. On the question of sentence also we don't find any reason to take a different view than that of the learned trial court and therefore concur with it's opinion on that score as well. Appeal of appellant Tufani ( A-1) is dismissed. He is on bail and therefore his personal and surety bonds are cancelled. He is directed to be taken into custody forthwith and be lodged in jail to serve out remaining part of his sentence. Let a copy of this judgement be certified to the trial court for it's intimation and further action.