Anil Kumar Sharma, J. 1. Heard Sri Brijesh Sahai, Sri N.K.Sharma, and Sri J.S.P. Singh, appearing for the appellants and Sri R.Y. Pandey, AGA assisted by Syed Ali Murtaza, brief holder for the respondent State, and perused the record. 2. This criminal appeal has been preferred against the judgment and order dated 8.8.2008 passed by the Additional District & Sessions Judge/Fast Track Court no. 2, Jalaun at Orai, in S.T. Nos. 69, 67, 66, 68 of 1998 and 7 of 1999, whereby appellants- Ram Pal, Prem Narain, Uday Bhan, Darshan Singh @ Dadi, Lal Diwan, Param Sukh @ Tutti, Rajendra and Devi Singh @ Devi Prasad, have been found guilty under section 148 and 302/149 IPC and sentenced to two years' RI with fine of Rs. 2000/- each under section 148 IPC and life imprisonment with fine of Rs. 6,000/- each under section 302/149 IPC with default stipulation. Appellants- Ram Pal, Param Sukh @ Tutti, Rajendra, Devi Singh @ Devi Prasad have further been convicted under section 25, Arms Act and sentenced to two years' RI with fine of Rs. 2000/- each thereunder with default stipulation. All the sentences were ordered to run concurrently. The appellants were, however. acquitted of the charge under section 147 IPC and 3( 2)( 5) of SC/ST Act. 3. The impugned judgment and order has been challenged on the ground that judgment passed by the court below is no order is the eyes of law being against the weight of evidence available on record and is therefore liable to be set aside. It is further challenged on the ground that sentence awarded to the appellants is too harsh. 4. The facts culled out from the record, are that a written report dated 10.3.1998 was submitted by Parmatma Sharan Ahirwar son of Sri Makundlal, resident of Aindha, Police Station Kotra, district Jalaun, alleging that at about 8 A.M. Ram Narain, brother of the complainant as usual was going to relieve himself of the nature call in the agricultural field. He met Accused appellants Ram Pal, Prem Narain, Uday Bhan, Darshan Singh @ Dadi, Lal Diwan, Param Sukh @ Tutti, Rajendra and Devi Singh @ Devi Prasad, all residents of village Aindha who were armed with country made pistols, gun, Farsa and axe. He met Accused appellants Ram Pal, Prem Narain, Uday Bhan, Darshan Singh @ Dadi, Lal Diwan, Param Sukh @ Tutti, Rajendra and Devi Singh @ Devi Prasad, all residents of village Aindha who were armed with country made pistols, gun, Farsa and axe. As soon as Ram Narain, brother of the complainant reached the field, he was surrounded by the accused appellants who after exhorting " MARO SALE KO BACHANE NA PAYE" started indiscriminate firing, due to which Ram Narain died there in the agricultural field. The incident was seen by Janak Dulari - village Pradhan, wife of Ram Narain and Vijai Kumar son of Ram Narain, Kailash son of Parmai Lal resident of Sinhari Daudpur, Lal Ram son of Dudh Lal, Bahadur son of Parsoley etc. who were cutting crops in the field. It was also averred in the written report that brother of the complainant had taken about 20 bighas of agricultural land of Shiv Narain ( brother of accused Ram Pal, Prem Narain, Udai Bhan and Darshan Singh ) on Balkat i.e. Batai, due to which the aforesaid accused appellants were having grudge against them and they have killed Ram Narain. 5. On the basis of the written report, G.D. entry was made at police station Kotra and case crime no. 42 of 1998, under section 147,148,149 and 302 IPC and 3( 2)( 5) of S.C./S.T. Act, was registered on 10.3.1998 at 9.30A.M. against the accused appellants. Investigation of the case was taken over by the Station Officer. 6. The investigating officer on 10.3.1998 after interrogating the complainant reached at the spot and collected samples of blood stained and plain earth, pair of sleeper and empty cartridges from the place of occurrence and three recovery memos dated 10.3.1998 in respect of the aforesaid items were prepared. He also interrogated other witnesses and prepared site plan. 7. After inquest, cadaver of deceased Ram Narain was sent for postmortem examination to Medical Officer, Women Hospital, Orai where it was received on 11.3.1998. Postmortem was conducted by Dr. A.S. Chandel at about 11 A.M., who on external examination, reported that deceased was aged about 45 years, he had died about a day earlier, he was of average muscularity and stoutness, maciation absent, rigor mortis had passed from upper extremity but was found present on lower extremity. Postmortem was conducted by Dr. A.S. Chandel at about 11 A.M., who on external examination, reported that deceased was aged about 45 years, he had died about a day earlier, he was of average muscularity and stoutness, maciation absent, rigor mortis had passed from upper extremity but was found present on lower extremity. In the external examination, four firearm entry wounds of entry with three corresponding exit wounds, one abrasion and one lacerated wound, were found as ante mortem injuries. The dimension and size of injuries etc. in the postmortem report reads thus : 1. Lacerated wound 3 cm x 1.5 cm x bone deep over upper part of scalp in midline. 2. Firearm wound of entry 1 cm x .5 cm x cavity deep over left side of forehead just above mid of left eyebrow., margin inverted. 3. Firearm wound of exit 5 cm x 4 cm x cavity deep on upper part of right side of face extending to lateral part to lower part of face in relation of right eye. Injury no. 2 and 3 are through and through. 4. Firearm wound of entry 1 cm x 1.5 cm over center of chest mistral line at level of nipple, oval in shape, muscle deep. 5. Abrasion 2 cm x 0.5 cm, left side of chest. 6. Firearm wound of entry 1 cm x 1 cm x chest cavity deep right side of back at lower angle of right scalp surrounded by zone of blackening and tattooing. 7. Firearm wound of exit 3 cm x 1.5 cm over right side of chest, 3 cm lateral to right nipple, chest cavity deep. Injury no. 6 and 7 through and through. 8. Firearm wound of entry 1.5 cm x 1.5 cm on middle of left hand, zone of blackening and tattooing, muscle bone deep. 9. Firearm wound of exit 5 cm x 8 cm muscle and bone deep over anterior -lateral aspect of left upper arm, underlying bone fractured into multiple pieces. Injuries no. 8 and 9 are through and through. In internal examination membrane and brain was found ruptured, skull fractured, pleura perforated and contused. 4th rib ( right side on back) was also fractured. Right lung penetrated through and through. Chest cavity showed about one litre of blood and heart empty. Injuries no. 8 and 9 are through and through. In internal examination membrane and brain was found ruptured, skull fractured, pleura perforated and contused. 4th rib ( right side on back) was also fractured. Right lung penetrated through and through. Chest cavity showed about one litre of blood and heart empty. In the opinion of the doctor, cause of death was due to shock and haemorrhage as a result of ante mortem injuries. Five clothes worn by the deceased i.e. Kurta, Baniyan, underwear, Tahmad and Gamchcha, were handed over to the constables accompanying the body alongwith other papers. 8. On 18.3.1998 when the Station Officer alongwith police party was in search of the accused persons and reached near village Nunwai, two persons going towards village Saidnagar, on seeing the police party, tried to run away. They were apprehended and caught by the police at about 17.15 hours near link road about 200 metres away from the culvert and in presence of Lalloo Ram son of Shiv Prasad Ahirwar, resident of village Ramui Kalan, P.S. Aindh and Devi Dayal son of Dasai Ahirwar, resident of village Saidnagar, P.S. Kotra, Jalaun, the two arrested persons disclosed their name as Ram Pal son of Sarjoo Prasad Lodh and Rajendra Singh son of Chandrabhan Singh, both resident of village Aindh, P.S. Kotra, district Jalaun. The police party was informed that both these arrested persons were named and wanted in the murder case of Ram Narain. On their search before the witnesses, a country made pistol with one loaded cartridge of 315 bore as well as three live cartridges, were recovered from left pocket of pant of Ram Pal while from possession of another person namely Rajendra Singh, 12 bore loaded country made pistol in working condition and four live cartridges were recovered. On inquiries, Ram Pal confessed and stated that he had shot down Ram Narain due to land dispute by the weapons recovered from them alongwith Rajendra Singh, Param Sukh @ Tutti and Devi Prasad @ Devi Singh son of Ram Charan Kachchi and since then they are absconding. They also stated that they were going to surrender before the court at Orai but they have been caught before they could do so. 9. They also stated that they were going to surrender before the court at Orai but they have been caught before they could do so. 9. The police on 19.3.1998 at about 6.30 P.M. also apprehended two persons near village Kurkuroo, who disclosed their identity as Param Sukh @ Tutti son of Deshraj Kori and Devi Singh @ Devi Prasad son of Ram Charan Khacchi, both resident of village Aindh, P.S. Kotra, district Jalaun. On search of their person, an Adhdhi of 12 bore i.e. half swan barrel, in working condition with 4 cartridges ( three live and one missed) was recovered from Param Sukh whereas from the person of Devi Singh @ Devi Prasad, a country made pistol of 12 bore in working condition as weel as two live cartridges of 12 bore were recovered and recovery memos as Ex. Ka-2 and Ka-3 were prepared. On the basis of aforesaid recoveries, case crime No. 43/1998 against accused Ram Pal, case crime no. 44/1998, against accused Rajendra Singh, case crime no. 47/1998 against accused Param Sukh alias Tutti and case crime no. 48/1998, against accused Devi Singh @ Devi Prasad, were registered under section 25, Arms Act. 10. After completion of investigation, charge sheet was submitted against the accused appellants. Charges were framed against them under sections 147,148, 302/149 IPC, section 25, Arms Act and 3( 2)( 5) of SC/ST Act. They denied the charges and claimed to be tried. 11. The prosecution in support of its case, examined P.W. 1 Kamlesh, P.W. 2 Dhanaram, P.W. 3 Hari Mohan, P.W. 4 Lakhan, P.W. 5 Parmatma Sharan, P.W. 6 Girjakumar, P.W. 7 Janak Dulari, P.W. 8 Kailash, P.W. 9 Jamirul Hasan, P.W. 10 P.L. Rawat, P.W. 11 Mahendera Singh Sisodia, P.W. 12 Dr. A.S. Chandel and P.,W. 13 SI Badri Vishal. 12. P.W. 1 Kamlesh, P.W. 2 Dhanaram, P.W. 3 Hari Mohan, P.W. 4 Lakhan and P.W. 5 Parmatma Sharan, did not support the prosecution version and they were declared hostile. 13. After appreciation of the evidence on record and hearing counsel for the parties, the trial court by the impugned judgment and order dated 8.8.2008, convicted and sentenced the appellants as stated earlier. 14. 13. After appreciation of the evidence on record and hearing counsel for the parties, the trial court by the impugned judgment and order dated 8.8.2008, convicted and sentenced the appellants as stated earlier. 14. Assailing the impugned judgment and order, counsel for the appellants submitted that alleged incident is of 10.3.1998 at about 8 A.M. said to have been committed in an agricultural field situated outside the Abadi and FIR of the incident is on the same day i.e. 10.3.1998 at 9.30 A.M. which mentions that distance of police station from the place of occurrence is about nine kilometers. Deceased Ram Narain is said to have been assaulted by eight appellants namely Ram Pal, Prem Narain, Uday Bhan, Darshan Singh @ Dadi, Lal Diwan, Param Sukh @ Tutti, Rajendra and Devi Singh @ Devi Prasad, It is vehemently argued that no case against the appellants is made out as P.W. 1 Kamlesh, P.W. 2 Dhanaram, P.W. 3 Hari Mohan, P.W. 4 Lakhan and P.W. 5 Parmatma Sharan, who were claimed to be eye witnesses of the incident, have turned hostile and have not supported the prosecution story as it is factually incorrect and the incident had not taken place in the manner stated by the prosecution. P.W. 6 Girjakumar, P.W. 7 Janak Dulari, and P.W. 8 Kailash, are son, wife and cousin nephew respectively of the deceased who have been nominated in the first information report as ocular witnesses, but their presence at the spot is highly doubtful. 15. According to learned counsel for the appellants, P.W. 5 Parmatma Sharan, who is informant in this case, in his statement has come out with the case that he had reached the spot late and had named the appellants on the instigation of villagers. Referring to the statement of this witness, counsel for the appellants, submits that at the time of incident, he was about one kilometer away from the place of occurrence and he was not able to see as to who had shot his brother. In this regard, counsel for the appellant has also relied upon the following parts of his statement of P.W. 5, @ Hindi @ 18. So far as motive is concerned, he has submitted that it is clear that motive has been assigned but no evidence has been led by the prosecution to prove it. In this regard, counsel for the appellant has also relied upon the following parts of his statement of P.W. 5, @ Hindi @ 18. So far as motive is concerned, he has submitted that it is clear that motive has been assigned but no evidence has been led by the prosecution to prove it. According to him, law settled by the Apex Court is that if motive is shown, then it should be endeavored to be proved, otherwise unproved motive is a waste and cannot be considered. 19. He has also referred to paragraph no. 17,18 and 19 of the statement of P.W. 6 and submitted that presence of P.W. 6 at the time and place of the incident is doubtful as his statement is contradictory and does not match with the site plan. On the basis of paragraph no. 22 and 23 of the statement of P.W. 6, it is urged by the learned counsel that FIR lodged was ante timed. Relevant extract of the aforesaid statement of P.W. 6 reads as under : @ Hindi @ 20. Assailing the statement of P.W. 7, learned counsel for the appellant submits that statement is total contradictory to the statement of other prosecution witnesses as to the manner in which incident had taken place. In this regard, he has relied upon following part of statement of P.W. 7 : @ Hindi @ 21. According to him, from the above statement it is apparent that according to P.W. 7 the deceased had been ambushed whereas according to statement of other eye witnesses, the deceased was shot when they met him and P.W. 5 has stated that he was not even present at that place. 22. Summing up his arguments, he has argued that place of occurrence and site plan prepared, did not match, the FIR is ante timed which is apparent from the statement as stated above. P.W. 5 was not in a position to have reached at at the police station. He had stated that he was accompanied by the Chowkidar and no other person whereas P.W. 5 is said to have submitted the written report but on being cross examined, it came out that FIR was not lodged till 11.30 A.M. i.e. the report was lodged after last rites of the deceased were performed. 23. He had stated that he was accompanied by the Chowkidar and no other person whereas P.W. 5 is said to have submitted the written report but on being cross examined, it came out that FIR was not lodged till 11.30 A.M. i.e. the report was lodged after last rites of the deceased were performed. 23. Learned counsel for the appellants has also assailed the investigation and submitted thus : ( a) FIR of the incident was not lodged till evening of the next day. ( b) P.W. 5 has stated to have gone to the police station not accompanied by P.W. 6. Whether P.W. 5 had lodged the FIR or P.W. 6, is shrouded in mystery. ( c) It is apparent from the record that chick report had not seen light of the day on 10.3.1999 itself. ( d) Only partisan witnesses have supported the prosecution case whereas independent witnesses have turned hostile and manner in which the incident is said to have taken place, is false, incorrect and the appellants have been falsely implicated. 24. It is lastly submitted that Investigating Officer has come out with third manner of the incident as stated by P.W. 6 is not on straight footing though many independent witnesses are said to be present on the spot but none have come forward to support the prosecution case and that no blackening or tattooing or scorching was found on the body because except in two injuries which falsifies theory of the prosecution that deceased Ram Narain was first surrounded and then shot at with close range i.e. about four paces. 25. Per contra, learned A.G.A. has submitted that witnesses produced by the prosecution have proved the case against the accused appellants. It is stated that P.W. 7 Janak Dulari is an eye witness of the incident and apart from her other persons were also the witnesses whose names have been given in the written report. It is stated that the deceased had taken 20 bighas of land belonging to Shiv Narain son of Sarjoo Prasad on BALKAT ( Batai) which was the cause of grudge to the accused appellants, culminating into murder of Ram Narain. It may be pointed out here that aforesaid Shiv Narain, whose land was taken on Batai by the deceased, is real brother of appellant no. 1 to 4. 26. It may be pointed out here that aforesaid Shiv Narain, whose land was taken on Batai by the deceased, is real brother of appellant no. 1 to 4. 26. He further submitted that incident in question is said to have taken place at 8 A.M. and report of the incident was lodged at 9.30 A.M. at police station Kotra which is at a distance of about 10 kilometers from the place of occurrence, therefore, the FIR was prompt which rules out any possibility of it being ante timed for false nomination of the eight accused appellants. He states that discrepancies in investigation by the Investigating Officer which are minor in nature and any small lapse in investigation in the instant case, is not fatal to the prosecution case. Rebutting the arguments of the counsel for appellants, it is next submitted by learned A.G.A. that there may be small contradictions in the statements of P.W. 6,7 and 8 but if read together, they prove the factum of killing of Ram Narain by the accused appellants as has been narrated in the FIR. Merely because the appellants have been able to win over other witnesses of the prosecution, that would not either wash off the incident in totality nor it can be said that the case could not be proved by the prosecution by testimony of P.W. 6,7 and 8 on the ground that they are relatives of the deceased or partisan witnesses. The appellants have been assigned specific role and weapons by P.W. 7 Janak Dulari in her statement and merely because no wound of Farsa/axe has been fond on the cadaver of the deceased except firearm wounds, it cannot be said that assailants armed with Farsa/axe or lathis had no common object for doing away with deceased Ram Narain. The appellants had motive as appears from the FIR and the presence of P.W. 6 and others nominated in the FIR, at the time and place of the incident cannot be doubted. 27. We have heard learned counsel for the parties at length and have also gone through the record. From the perusal of FIR which had been lodged within a span of one and half hours of the incident at police station Kotra, situated at a distance of about ten kilometers from the place of incident, it is apparent that FIR in the present case is prompt. From the perusal of FIR which had been lodged within a span of one and half hours of the incident at police station Kotra, situated at a distance of about ten kilometers from the place of incident, it is apparent that FIR in the present case is prompt. The FIR in this case has been lodged by Parmatma Sharan nominating village Pradhan-Janak Dulari wife of deceased Ram Narain, Vijai Kumar son of Ram Narain, Kailash son of Parmai Lal, Lal Ram son of Dudhlal and Bahadur son of Parsoley as eye witnesses of the incident. Out of them, Vijai Kumar, Janak Dulari and Kailash have been produced by the prosecution as P.W. 6,7 and 8 respectively. Motive for the incident is also apparent from the reading of the FIR. Merely because other witnesses i.e. P.W. 1,2,3,4 and 5 namely Kamlesh, Ghanaram, Hari Mohan, Lakhan and Parmatma Sharan ( complainant) have turned hostile, would not benefit the accused appellants as the case is otherwise proved by the evidence of eye witnesses P.W. 6,7 and 8. 28. In so far as P.W. 5 Parmatma Sharan is concerned, he does not deny the fact in his examination in chief that written report ( paper no. 5) had been submitted by him. In fact he has proved the document which was Ex. Ka-1 before the court. Law in regard to hostile witness as well as partisan witness is well settled. So far as hostile witnesses are concerned, that part of the evidence which proves guilt of the accused can be read against the accused persons. In regard to partisan witnesses, the Apex Court has clearly laid down that statement of a relative or partisan witness is not to be rejected merely on the ground that they are related. In such cases, the Court has to move cautiously and consider their statement with great care before coming to any conclusion. In the instant case, the trial court has given cogent reasons and has found the testimony of P.W. 6,7 and 8 trustworthy enough to prove the offence committed by the appellants whereas hostile witnesses have not even been named in the FIR. Therefore, there would be no adverse effect on the veracity of the FIR as the incident has been proved by the witnesses Vijai Kumar, Janak Dulari and Kailash who were nominated by the complainant in the FIR as ocular witnesses of the incident. Therefore, there would be no adverse effect on the veracity of the FIR as the incident has been proved by the witnesses Vijai Kumar, Janak Dulari and Kailash who were nominated by the complainant in the FIR as ocular witnesses of the incident. 29. As regards the irregularities said to have been committed by the IO in investigation or preparation of site plan, suffice it to say that alleged minor irregularities in investigation as pointed out by the counsel for the appellants, are not to the extent that they may be fatal to the prosecution. Admittedly, the incident had taken place on 10.3.1998 in broad day light. Statement of P.W. 6,7 and 8 have been recorded in the trial court during the period February 2007 to June 2008 i.e. about 9 - 10 years after the incident. Any smaller discrepancy in mentioning the distance or place where he or she is said to have been standing, can therefore be safely put to the lapse of time. These witnesses have very vividly described the incident in which Ram Narain ( since deceased) was killed by the appellants. Any minor contradiction pointed out by the counsel for appellant in the statement of P.W. 5 who have been declared hostile that he was not able to see as to who had shot his brother, if read alongwith the statements of P.W. 6,7 and 8 who are family members and have supported the prosecution case, would have no effect on the prosecution version for the reason that as a matter of fact the assailants have been witnessed committing the offence by P.W. 6,7 and 8, who have described the manner of assault as well as specified weapons assigned to the accused appellants. 30. Submission of the counsel for appellants that only firearm wounds have been found on the cadaver of deceased Ram Narain and no wound of Farsa/axe/lathi has been found, belies the prosecution case as well as statement of P.W. 6,7 and 8 that the incident had taken place in the manner stated by them, is not correct. 30. Submission of the counsel for appellants that only firearm wounds have been found on the cadaver of deceased Ram Narain and no wound of Farsa/axe/lathi has been found, belies the prosecution case as well as statement of P.W. 6,7 and 8 that the incident had taken place in the manner stated by them, is not correct. Admittedly, case of the prosecution is that there was indiscriminate firing by the assailants at the deceased, therefore, it cannot be perceived by any reasonable person that during indiscriminate firing at Ram Narain by the appellants, their co accused having Farsa/axe/lathis, at the same time would also assault Ram Narain for the reason that they may also receive injuries and fatal wounds. In the postmortem report, injury no. 1 may be co related to lathi. In the circumstances, it cannot be said that merely because out of eight accused appellants, role of indiscriminate firing is assigned to only four persons, therefore, remaining four appellants who did not have firearms with them, were not involved. Admittedly, eight accused appellants forming an unlawful assembly had come with their common object to kill Ram Narain, four of them opened indiscriminate firing due to which Ram Narain received fatal injuries and fell down succumbing to the injuries. In the circumstances, it cannot be said that the persons who were not armed with firearms but with Farsa/axe/lathi or any other weapon, had no common object. It is apparent from the reading of the FIR as well as statement of the witnesses that all the eight appellants had participated in the incident with their common object to do away Ram Narain and they had not allowed any escape route to him. The weapons used in the incident have also been recovered from appellants- Ram Pal son of Sarjoo Prasad and Rajendra Singh son of Chandrabhan Singh, on 18.3.1998 as well as from appellants- Paramsukh @ Tutti and Devi Singh @ Devi Prasad on 19.3.1998 when they were apprehended. 31. To our mind, even in the cases where witnesses have turned hostile, case can be proved by partisan witnesses and the attending circumstances to the incident as is the position in the present case. The medical evidence clearly supports the prosecution version as well as the manner the firearms have been used in doing away deceased Ram Narain. 31. To our mind, even in the cases where witnesses have turned hostile, case can be proved by partisan witnesses and the attending circumstances to the incident as is the position in the present case. The medical evidence clearly supports the prosecution version as well as the manner the firearms have been used in doing away deceased Ram Narain. The witnesses are trustworthy and their testimony has rightly been relied upon by the court below. 32. For all the aforesaid reasons, we uphold the impugned judgment and order dated 8.8.2008 passed by the court below and dismiss the appeal. 33. Accused -appellants Prem Narain, Uday Bhan, Darshan Singh alias Dadi and Param Sukh alias Tutti, are on bail. Their bail is cancelled. They be taken into custody and sent to jail to serve out the sentence awarded to each of them. Other four appellants namely Ram Pal, Lal Diwan, Rajendra and Devi Singh are in jail and each would serve the remainder of their sentence. 34. Let a copy of this judgment be sent to the trial court through the C.J.M., Jalaun for compliance forthwith which should be reported to this Court within two months.