Dharnidhar Jha & Pankaj Naqvi,J. The two appeals, each by one of the two convicts of Sessions Trial No. 440 of 2002, question the correctness of the finding of guilt recorded by the learned Additional Sessions Judge, Kanpur Nagar in the above noted Sessions Trial on 5.2.2009 by which appellant Arvind @ Pattu was held guilty of committing offence under Section 302 I.P.C. and the appellant of the other appeal, namely, Babloo @ Rakesh was convicted of offence under Section 302/34 I.P.C. After being heard on 6.2.2009 on the quantum of sentence, each of the two appellants was directed to suffer rigorous imprisonment for life and was also directed to pay a fine of Rs. 20,000/-, else, to suffer further period of imprisonment for three months. 2. The two appeals have been heard together and are being disposed of by this common Judgment. 3. The written report (Ex. Ka-1) filed by P.W. 1-Ghasi Ram, who happened to be father of the deceased Om Prakash, was the basis of the F.I.R. (Ex. Ka-2). It was stated that a dispute regarding tenancy had ensued between the informant and the father of the two appellants, namely, Jagannath. It is not denied that Jagannath along with his family including the two appellants was residing as tenant in part of the house of the informant. It was alleged that appellant Babloo @ Rakesh on account of tenancy dispute had hurled abuses at informant Ghasi Ram and, on that account, the deceased Om Prakash at about 8 p.m. on 1.7.2001 had accosted appellant Rakesh @Babloo to confront him as to why he had abused his father. It turned into exchange of hot words, hearing which, the informant stated, he, his son Jai Prakash (not examined) and Sripal (P.W.2) came into the lane where the deceased had hot discussion with appellant Rakesh @ Babloo. Besides the above persons, Pammi @ Manoj (P.W. 7) and Neelkamal (not examined) also came there. In the meantime, it is said that appellant Arvind @ Pattu and his brother Surendra @ Gunesh arrived there with country made pistols and, seeing them coming, appellant Rakesh @ Babloo remonstrated them to kill the deceased upon which appellant Arvind @ Pattu fired a shot into the chest of the deceased as a result of which he fell down. In the meantime, it is said that appellant Arvind @ Pattu and his brother Surendra @ Gunesh arrived there with country made pistols and, seeing them coming, appellant Rakesh @ Babloo remonstrated them to kill the deceased upon which appellant Arvind @ Pattu fired a shot into the chest of the deceased as a result of which he fell down. The three accused persons, i.e., the two appellants and Gunesh @ Surendra made good their escape from the the scene of occurrence. The informant stated that as the accused persons were armed with country made pistols, he was frightened to go near his son but his son Jai Prakash and the other mohalla-people picked him up to take him to the hospital where the doctor declared him dead. The informant thereafter went to the police station and requested to register the case on the basis of Ex. Ka-1. 4. The evidence of P.W. 3-Head Constable Brij Lal indicates that on the basis of the written report which was presented before him, he drew up the F.I.R. and made necessary entries in the General Diary regarding the contents of F.I.R. and the written report besides making the copies of the documents. Ater institution of the case, the investigation was taken up by S.I. Shiv Prakash Mishra (P.W. 6), who was the Officer-in-Charge of the Police Station Anwarganj, Kanpur Nagar. It appears from the evidence of P.W. 3 that he also sent the copies of the special report to different officers through Constable 126 Anil Kumar at 10 p.m. and made the entries in that behalf in the General Diary. 4. Sub Inspector Shiv Prakash Mishra (P.W. 6), who was posted on 1.7.2001 as the In-charge Inspector of the Police Station, took up the investigation after institution of the case and proceeded to record statements of informant and his son Jai Prakash, who was an eye witness, and then proceeded further to the place of occurrence where he seized the blood stained earth and prepared memo Ex. Ka 5 which was written by accompanying Sub Inspector N.K. Singh and was signed by him. He went in search of the accused persons but did not find them in their house as they had probably absconded. Ka 5 which was written by accompanying Sub Inspector N.K. Singh and was signed by him. He went in search of the accused persons but did not find them in their house as they had probably absconded. He could not make the inspection of the place of the occurrence on account of the night and inspected the same on 2.7.2001 and prepared sketch map as per description drawn by him of different structures as also describing them at the foot of the document which was marked Ex.Ka10. 6. P.W. 6 has given evidence also on the background of the incident and it was revealed that he had recorded those the facts in the case diary after having perused the relevant documents which were produced before him and it appeared that due to a dispute of tenancy, the informant had filed an information before the police and, on that basis, a proceedings under Sections 107/176 Cr.P.C. was initiated by the Executive Magistrate on a report being submitted by Sub Inspector Abhishek Tiwari on the basis of the complaint dated 21.6.2001 and notices were issued to the parties. P.W. 6 has further stated that the inquest was held on the dead body by S.I. N.K. Singh in the hospital who also sent the same for post mortem examination to the concerned doctor. 7. As appears from the evidence of P.W. 4 Dr. Avinash Shakhuja that he had found an ante mortem fire arm injury which was the wound of entry measuring 2.5 c.m. X 2.5 c.m., just below the esternal notch upto chest cavity deep directed downwards and backwards and towards left side. The margin of the wound was inverted and that was bearing tattooing, charring and blackening around it. P.W. 4 found left side of the pleura lacerated. The left lung was also found lacerated. Three pieces of wads and 22 metallic pellets were recovered from inside the wound. The opinion of P.W. 4 was that death was on account of haemorrhage and shock resulting from the above noted injury. 8. P.W. 6 had recorded the statements of witnesses and had submitted the charge sheet sending three accused persons, i.e., the two appellants and one Surendra @ Gunesh for trial. The opinion of P.W. 4 was that death was on account of haemorrhage and shock resulting from the above noted injury. 8. P.W. 6 had recorded the statements of witnesses and had submitted the charge sheet sending three accused persons, i.e., the two appellants and one Surendra @ Gunesh for trial. But, it appears that Gunesh was held juvenile and his case was sent for inquiry as per law covering a juvenile while two accused persons were put on trial and were convicted ultimately on the basis of the evidence which was adduced in the trial. 9. The defence of the appellants was of non-participation and it was suggested to different witnesses that some unknown criminals had shot dead the deceased and, on account of suspicion, sons of Jagannath had wrongly and falsely been implicated. This appears suggested to P.W. 1 as appears from page 19 of the paper book as also to P.W. 6-the Investigating Officer as appears from page 44 of the paper book while throwing suggestion to P.W. 6-Investigating Officer. However, the defence appears admitting that there was some altercation regarding the abuses which were probably hurled as the defence suggested that while some altercation was going on between the deceased and the accused persons, some unknown criminals fired a shot in the cover of darkness as a result of which the deceased died. Thus, what we find is that the defence was also challenging presence of any source of light which could have facilitated the identification of the real culprits. 10. What we further find from the evidence of D.W. 1, who was the solitary witness examined in defence and who was the sister of the appellant, and two appellants have set up a plea of alibi of having taken his sister to hospital for delivery of a child when she had labour pain, but again what we find is that no corresponding documents, which could have very well been in possession of the defence or the witness D.W. 1, were produced. 11. The prosecution examined a total number of seven witnesses out of whom P.Ws. 1 and 2, i.e. informant and his son Sri Pal had given an eye witness account to the occurrence. 12. We have already noted that Brij Lal (P.W.3) was the Head Constable who drew up the F.I.R. and, on that basis, P.W. 6-S.I. Shiv Prakash Misra took up the investigation. 1 and 2, i.e. informant and his son Sri Pal had given an eye witness account to the occurrence. 12. We have already noted that Brij Lal (P.W.3) was the Head Constable who drew up the F.I.R. and, on that basis, P.W. 6-S.I. Shiv Prakash Misra took up the investigation. P.W. 5-S.I. N.K. Singh had held inquest on the dead body and had prepared the report which has been marked Ex. Ka-6. Besides, he had prepared the dead body challan, the letter addressed to the Chief Medical Officer requesting him to facilitate holding of the post mortem examination besides preparing sketch of the dead body at the scene of occurrence. In addition, a letter to the Reserved Sub Inspector for deputation of constables for post mortem examination. While the dead body challan has been marked Ex. Ka-6, the letter addressed to the Chief Medical Officer was allotted Ex. Ka-7 and the sketch of the dead body along with the sample of the seal were bearing Exs. Ka-8 and 9 respectively. We have already noted that Dr. Avinash Shakhuja had held post mortem examination on the dead body of the deceased Om Prakash and had prepared the the report in that behalf which has been makred Ex. Ka-4. Pammi @ Manoj, who was cited as an eye witness in the written report, was examined as P.W. 7 and we find that he has not supported any part of the occurrence and as such was declared hostile by the prosecution. 13. Sri Anil Kumar Singh, learned counsel for the appellants in the two appeals has, first, submitted that the injury, which was recorded by the doctor on the dead body, was not possible by a country made pistol. It could have been possible only by a regular gun and, specially, by a DBBL gun because the doctor had recovered three wads and twenty two pellets from inside the injury. It was further contended that the occurrence had taken place in the cover of darkness and there was no source of light at the scene of occurrence as such it would have been very difficult or rather impossible for the witnesses to pick up the identifying features of the assailants and to name them correctly. It was further contended that the occurrence had taken place in the cover of darkness and there was no source of light at the scene of occurrence as such it would have been very difficult or rather impossible for the witnesses to pick up the identifying features of the assailants and to name them correctly. It was next contended that there were many flaws in the prosecution evidence specially as to when the written report was scribed and as to when the F.I.R. was drawn up and these suspicious circumstances would be sufficient to throw out the prosecution case in its entirety. Submission lastly was that P.W. 2 was not present at the time of occurrence which is made more probably by virtue of the evidence of P.W. 2 when he stated that he was taking his meals with his children upstairs in the section of the house under his occupation. It was as such submitted on the above strength that the learned trial judge had erred heavily in placing reliance upon his evidence and adjudging the facts in respect of the charges so as to recording the finding of guilt and passed the sentence. 14. Sri A.K. Srivastava, learned A.G.A. in his own cool and consistent manner has taken us to the various parts of the evidence to submit that motive for the offence was more established than in the manner as may be desired from the prosecution. Sri Srivastava submitted that undisputedly Jagannath, the father of the two appellants, was in occupation of one particular section of the house as tenant and, as may appear from the evidence of P.W. 2, he had created a shed unauthorisedly which was demolished through police intervention and that has raised dispute between the landlord and the tenant so much so that misbehaviour of the tenant was reported by P.W.1 to the police by an application dated 28.6.2001 which was inquired into by a Sub-Inspector-rank police officer and, on that basis, proceedings under Section 107 Cr.P.C. was initiated. It further appears from the evidence of P.W.1 that he also attempted to do something to settle the dispute. He issued notice on non-payment of rent but to no effect. It further appears from the evidence of P.W.1 that he also attempted to do something to settle the dispute. He issued notice on non-payment of rent but to no effect. P.W. 1 also stated that after the death of father of Santosh, who as per evidence was Sone Lal and was the elder brother of Jagannath, he issued the rent receipts in favour of Santosh son of Sone Lal after receiving rental and, thus, appears to have scrapped the tenancy of Jagannath unilaterally which had probably put fuel to the fire as a result of which the informant was abused on 28.6.2001 report about which was lodged in the police station and when the deceased was taking up the matter by lodging a protest in the street with appellant Babloo @ Rakes, the incident had occurred. Sri Srivastava was ultimately submitting before us that the genesis of the occurrence or the motive of the occurrence, as the case may be, was established fully and satisfactorily. So far as the contention that a country made pistol could not nave caused injury, Sri Srivastava was pointing out to us that there is no factual data placed before the Court except the few lines from the evidence of doctor who does not appear fairly deposing in court and the court should read the evidence of doctor to reject the prosecution story that the fatal shot was fired by a country made pistol. Submission also was that the time of death, which was stated by the doctor, could not be said to be conclusive so as to eliminating the possibility of time of occurrence. Pellets 22 in number and wads three in number could not be unusual recoveries as cartridges are known to have compartments in case of pellets. As soon as there is compartmentalisation of cartridges, it is wonder that wads and multiple pellets are recovered from an injury. So far as the submission on the competence of witness is concerned, it was pointed out that the name of P.W. 2 was very much cited as a witness in the F.I.R. and he was also cited as a witness in the charge sheet and merely a slip in making statement by P.W. 1 could never be sufficient to discard the evidence of P.W. 2 who appears to be a competent witness. Likewise, the facts regarding the arrival of scribe of the report or even if we assume it affirmatively that the police had faultered for any particular reason in putting a wrong timing in respect of the receipt of the report for drawl of the F.I.R, the case otherwise proved factually, should not be discarded on that account. 15. Before we proceed to scrutinize the contentions of the two counsel appearing on behalf of the two sides, we want to put on record the topography of the place where the occurrence is said to have taken place. The site plan was prepared by P.W. 2 after inspecting the locality which has been described by him as part of Mohalla Anwarganj and the situation of the house of informant Ghasi Ram is almost in the middle of the premises, which appears huge and sprawling. The house is surrounded by many smaller hutment which were in occupation of different tenants who had been inducted as such. We may find that on the left side,i.e., Western side of the house P.W. 1 Ghasi Ram there was an exit point attached to the wall and just in front and opposite to that exit was a tenament which was in occupation of one Phool Chand who had his small factory located North of the house in which he was residing. The evidence has come from P.W. 1 and P.W. 2 both, that there were many tenants who had been inducted by P.W.1 in different parts of the premises. Jagannath, the father of the two appellants, was in occupation of the section of the tenancy which was almost located in the middle of the southern extremity of the premises to the East of which, was the tenament in occupation of Neelkanth and Shiv Nath respectively. 16. The occurrence is said to have taken place at place 'A' which was a passage coming into the premises from the main road which has been denoted by road running into two directions-North and South. 'B' is the place from where the witnesses claim to have seen the occurrence. 16. The occurrence is said to have taken place at place 'A' which was a passage coming into the premises from the main road which has been denoted by road running into two directions-North and South. 'B' is the place from where the witnesses claim to have seen the occurrence. If we peruse the description of clusters of structures, we may find that just in the East of the gate of the house of P.W. 1 Ghasi Ram and South of the place where the occurrence is said to have taken place, the Investigating Officer had found a bulb hanging at a good height and we have read the evidence of P.W. 6 to find that it was lighted at the time of occurrence. Even if we assume that there would not have been any light, what we find is that the premises of P.W. 1, which has the clusters of other houses in occupation of various tenants, were not only habitat of people there. Just opposite the place of occurrence was the house of one Rajan. As we have already noted, there was factory located inside the premises and we have all the reasons to note that on account of reflection and percolation of light from different houses which were situated all around but very closely to the place of occurrence, there would have been quite sufficient light to facilitate the identification of persons. This is one reason on which we reject the submission of the learned counsel for the appellant that identification of accused would not have been possible due to lack of light. 17. The other reason, which we assign in support of the contention of the prosecution that the identification of the accused would have been posible is that the accused and the witnesses were not alien rather they were living in the same premises. There was a relationship of tenant and landlord between them. They had fought between them. They could not be said to be strangers. They could be living in a situation like the body and the undergarment and, in such a situation, if someone comes to contend before the court that the identification could not have been possible, the court could simply find the submission not only worthless but not worthy of even being taken notice of. They could be living in a situation like the body and the undergarment and, in such a situation, if someone comes to contend before the court that the identification could not have been possible, the court could simply find the submission not only worthless but not worthy of even being taken notice of. We are of the view that there could not have been any fault, less to talk of any difficulty, for the witnesses in picking up the exact identities of the persons, specially when the final act of shooting the man dead was preceded by exchange of hot words in such volume that accused and witnesses had been attracted to come there. 18. We next come to the contention as to whether the injury, which was recorded by the P.W. 4, could have been possible by- a regular gun and specially by a DBBL gun as was suggested by P.W. 4, the doctor. Before we proceed to scrutinize his evidence, it appears to us that he was not fair and honest in deposing in the court of law. Questions were put to him regarding the nature of injury and the marks, which were found around the injuries, and the weapons, which could have cause the injury and marks around it possible, and we are sure that unless the doctor had deposed with some ulterior motive, he would say that charring or blackening or even scorching, if the evidence is like that, could be possible only when the shot had been fired from a close range. But what P.W. 4 was doing was that he was shifting his responsibility upon the ballistic expert by answering specific questions on these details that only a ballistic may render his opinion on these aspects of the injury. In our view and in the light of the recognized ballistic or medical principles, opinion of doctor would be only material regarding matters, like, finding charring or blackening around a wound and he would be only expert to express his opinion by giving his evidence on these matters as regards the description of the wound. The doctor probably was planning something peculiar from the very inception of the post mortem examination report. The doctor probably was planning something peculiar from the very inception of the post mortem examination report. Text books on medical jurisprudence guide doctors to specify their opinion as regards nature of the injuries, their description and also the estimated time within which the injury could have been caused, but, as we have noted the doctor's plans were something different in this case from that which could be the regular expectations from such experts by courts of law. He was simply complicating the situation and probably for favouring the defence else why he should give the indefinite opinion that the death could have been caused within half day of holding of the post mortem examination. The evidence in cross-examination of P.W. 4 has persuaded us to doubt his credibility as an expert and we have very strong inference coming into our hearts and minds that he was in the witness box with ulterior motive so as to creating a doubt in the prosecution case. 19. Our experience of trying cases and hearing appeals or having gone through different text books has, till date, not trained us to find that an injury, which was described by P.W. 4 in his post mortem report, could have been possible only by a DBBL gun and not by a country made pistol. Recovery of three wads or 22 pellets could only be the result of the multiple shots is negated by the fact that there was the solitary wound which was measuring 2.5 c.m. X 2.5 c.m. and 1 inch X 1 inch and the deeper entry was on account of the range, which was very close, and the number of pellets which ejected due to the ignition of gun powder. Medical science tells us that when there is huge number of pellets which strike a particular part of the human body, the wound of injury is comparatively larger than could be created by a single pellete and may sometime mislead that it was caused by a bullet. 20. Another aspect of the injury lends a huge support to the prosecution case. The injury was going downwards and upwards. The prosecution story, as appears from the evidence, was that while the deceased was altercating with appellant Rakesh @ Babloo, his two brothers appellant Arvind @ Pattu and juvenile Surendra @ Gunesh arrived there. On remonstration, the two killed the deceased. The injury was going downwards and upwards. The prosecution story, as appears from the evidence, was that while the deceased was altercating with appellant Rakesh @ Babloo, his two brothers appellant Arvind @ Pattu and juvenile Surendra @ Gunesh arrived there. On remonstration, the two killed the deceased. Rakesh @ Babloo is said to have caught-hold of the deceased and in that position Arvind @ Pattu is said to have fired the shot. Generally, there is always a tendency in human being after being confronted with such dire consequences and specially when one is attempted to be killed that the body position is curved a little bit and the trunk part is a bit forward in that curved body. If a shot is fired from a close range, the finding of the doctor that the injury was downward and then going upward, appears the only resultant injury which could have been caused by a shot fired from that close range. The medical evidence, thus, further appears to us corroborative to that little part of the prosecution story that not only Rakesh @ Babloo remonstrated, he also caught hold of the deceased. 21. Submission was that P.W. 1 had stated that P.W. 2 was not present at the place of occurrence and, on that basis, it was contended that the court should reject the evidence of P.W. 2 Sri Pal. We had contention of the learned A.G.A. pointing out to us that the defence contention could not hold good in as much as the name of the witness P.W. 2 appears from the very beginning on account of being cited as such in the written report and the law is that if the witness is cited further in the charge sheet as eye witness, the court should be very slow in rejecting the evidence on mere submissions or some statement of other witness which might make the presence of such witness doubtful. Before we proceed to examine the contention, we want to point out that while deposing in court P.W. 1 Ghasi Ram had indicated that he was 65 years of age. P.W. 2 was cross-examined about the age of his father, who was 21 year old. He had said that Ghasi Ram was 80 years of age as appears from page 29 of the paper book. P.W. 2 was cross-examined about the age of his father, who was 21 year old. He had said that Ghasi Ram was 80 years of age as appears from page 29 of the paper book. In this contradictory situation of 65 years or 80 years, we cannot record any definite finding as to what exactly was the age of P.W.1 on the date when he was deposing in the court but considering that he was only 65 years of age, we have also to consider some of the important circumstances attending upon his life. He was deposing in the case, as the father of the son who had been shot and killed and that killing had been preceded by serious acrimonious situations so much so that his own tenant, who had got shelter and safety in his house, had thumbed on his nose to him and had pushed him to such a situation that he had to seek intervention of the police and initiate proceedings for securing peace and tranquillity in his own campus where he was also living. Human being in such disturbing situations get excited, looses composure. As may be expected from a normal human being, finding himself in a situation of being thrown to circumstances which could not have been expected by him, sometimes affect him so much that his memories haywire. Besides, while deposing in court, the heat and temper generated by the court room atmosphere would have its own effect on the mental balance of such a person. If he was faulting in stating on a particular fact which was against the ordinary expectation of ours than he is to be given an allowance by us. 22. We have already noted the circumstances in the life of P.W. 1 and he was stating in the heat of cross-examination that P.W. 2 was not present. One line of that evidence of P.W. 1 was not going to deter our views as regards the presence of the P.W. 2. It was rightly pointed out by the learned trial judge that the P.W. 2 was named in the F.I.R. and he had also been cited as such in the charge sheet. Not only that he was one of the members of the family being one of the sons of P.W. 1 and brother of the deceased. It was rightly pointed out by the learned trial judge that the P.W. 2 was named in the F.I.R. and he had also been cited as such in the charge sheet. Not only that he was one of the members of the family being one of the sons of P.W. 1 and brother of the deceased. His evidence indicates that while the heated discussion was going on in the street, he came down the stairs and was very much present there when the incident had taken place. P.W. 2 had further stated that after his brother was shot at, he attempted to get up and was in a process of falling when P.W. 2 caught hold of him. This is the evidence of P.W. 1 also. Both P.Ws. 1 & 2 have stated that the deceased was removed by some persons to the hospital. P.W. 1 had stated that he did not go to the hospital. He went inside the apartment where many men were weeping. P.W. 2 did not go to the hospital is corroborated by P.W., his father, who stated that only Jai Prakash and other sons had accompanied mohalla people in carrying the deceased to the hospital. The presence of witnesses is natural and it was not unusual for them to come out from their house to witness the incident. In that view of the matter, we find the two witnesses fit to be relied. 23. The other limb of the submission on the prosecution story was that the police appears to have manoeuvred some dates as regards the receipts of the written report and drawl of the F.I.R. This submission was made by referring to the evidence of P.W. 1 at pages 16 and 17 of the paper book where P.W. 1 had stated that he had gone first to the hospital and thereafter had come to the police station for lodging the report. The other submission was that the house of the scribe was at a distance of 8 kms and someone was sent for bringing him to the house of the informant so that he could scribe the report. But what we find is that the same scribe Sanjay was running a factory in the very vicinity of the place of occurrence in Anwarganj and the whole locality appears spread in an area of about half kilometer. But what we find is that the same scribe Sanjay was running a factory in the very vicinity of the place of occurrence in Anwarganj and the whole locality appears spread in an area of about half kilometer. The evidence of P.W. 1 also indicates that there was probability that the scribe had arrived at the place of occurrence and had written the report. Even if we accept that the police had recorded wrong timings regarding the written report or drawl of the F.I.R., we assume that the actions of the police could not be enough to compel this Court to throw out an otherwise establish prosecution case. 24. We have already noticed the defence of the accused persons. We have in that context noted that the defence had suggested that there was some altercation with some unknown criminals who shot the deceased dead. The motive or genesis of the occurrence, we have already pointed out, was also established and the genesis of the occurrence was also not disputed by the prosecution. What they asserted was that some criminals could have accomplished the act. But, the evidence of two witnesses do not leave any room to take a view as was suggested to be taken by the learned counsel for the appellants. We are more assured from the evidence of the prosecution that the deceased Om Prakash was murdered on the day by persons named by the prosecution. 25. In the result, we do not find any merit in the two appeals and we dismiss the same. 26. We find that appellant Arvind @ Pattu is in custody, while appellant Babloo @ Rakesh was granted bail by order dated 26.5.2009 passed by the Court in criminal appeal no. 902 of 2009. His bond is cancelled. He is directed to be taken into custody by the learned trial court immediately after the receipt of the copy of this Judgment so that he is committed the custody for serving out the sentence. _____________