JUDGMENT Per : Hon’ble Servesh Kumar Gupta, J. The appellants Sunil Rathi, Manga Tyagi, Praveen Balmiki and Nafees have challenged the judgment and order of conviction dated 4.3.2013 rendered by learned Ist Additional Sessions Judge, Haridwar in Sessions Trial No. 162/10, State v. Sunil Rathi & 5 Others, wherein all the aforenamed appellants were convicted for the offence of Section 302/120B IPC. They were appropriately sentenced. Rest of the two accused persons Sachin and Mohit were acquitted from all the charges levelled against them. The said impugned judgment also pertains to the Sessions Trial No. 163/2010, wherein appellant Manga Tyagi was convicted for the offence of Section 25 Arms Act and has been appropriately sentenced. All the appellants are in jail. Since challenge in both the above-captioned appeals is to the same judgment and order of conviction, these being decided together. 2. The FIR Ex. Ka-1 was lodged by Pankaj Jindal, the real brother of deceased Naveen Jindal, within four hours of the incident. The brothers duo were running there separate shops as a means of livelihood. Both used to reside at 160/3 Salonipuram, Roorkee. Naveen Jindal along with his wife resided in the ground floor of the said building, while his brother Pankaj Jindal along with his family dwelt on the first floor of that house. As per the FIR, Pankaj Jindal was present in his house at 8.30 PM on the fateful night of 8/9.12.2009. No sooner his younger brother Naveen Jindal, riding on his motorcycle, arrived at the gate of his house from his shop, the unknown assailants made him prey of indiscriminate firing. Resultantly, he died at the spot. All the assailants were on the motorcycle. Pankaj Jindal immediately took his seriously injured brother to the hospital, where he was declared brought dead. The chick report of the incident is Ex. Ka-2. The inquest report Ex. Ka-6 was prepared on the next day i.e. on 9.12.2009 in the morning. The same was done in the Government Hospital, Roorkee. It started at 7.45 AM and continued till 10.05 AM. In the opinion of the witnesses, the death had been caused on account of the firearm injuries, nonetheless the post-mortem was recommended. So, the autopsy was conducted in the Government Hospital, Roorkee on 9.12.2009 at 11.10 AM by Dr. Ajay Mohan. The post-mortem report is Ex. Ka-12. It started at 7.45 AM and continued till 10.05 AM. In the opinion of the witnesses, the death had been caused on account of the firearm injuries, nonetheless the post-mortem was recommended. So, the autopsy was conducted in the Government Hospital, Roorkee on 9.12.2009 at 11.10 AM by Dr. Ajay Mohan. The post-mortem report is Ex. Ka-12. This report divulges the following injuries on the body of the victim: 1. Lacerated wound, oval, 1.75 x 1.25 cm, thin rim of blackening around the wound, left suprascapular area, 10 cm inferomedial to left top of shoulder, margins inverted. 2. Lacerated wound, 1.5 x 1.5 cm, round, thin rim of blackening around the wound, left scapular area, 9 cm above inferior angle of scapula, margins inverted. 3. Lacerated wound, 1.75 x 1.25 cm, oval with thin rim of blackening around the wound, right side back of chest, interscapular area, 2 cm lateral to spine and 5 cm below the nape of neck, margins inverted. 4. Lacerated wound, 0.75 x 0.75 cm, round, anterior aspect of left elbow joint with rim of blackening around the wound, margins inverted. 5. Lacerated wound, 1.25 x 1.5 cm, oval, postero medial aspect of left arm, 7 cm above elbow joint, margins everted with fat popping out. 3. The doctor found the track of the bullets as under: A. Entered through injury no.1, pierced the back of left side chest wall, ruptured left lung and heart, found embedded in left ventricular musculature of heat. B. Entered through injury no.2, pierced the left side back of crest wall, pierced lung left and heart through and through, recovered embedded on the medial side of right dome of diaphragm. C. Entered through injury no.3, pierced the right side back of chest wall, pierced right lung through and through, recovered embedded in anterior chest wall musculature right side. D. Entered through injury no.4, pierced the musculature of left arm and exit through injury no.5. It was opined that the death had been caused on account of haemorrhage and shock due to ante mortem injuries. Time of death was about half day old. So, the time of death matches with that of the incident. 4. The police also came into action and collected four cases of 32 bore cartridges and one case of 315 bore from the spot on 9.12.2009. Recovery memo is Ex. Ka-18. Time of death was about half day old. So, the time of death matches with that of the incident. 4. The police also came into action and collected four cases of 32 bore cartridges and one case of 315 bore from the spot on 9.12.2009. Recovery memo is Ex. Ka-18. The soil, bloodstained and simple, was also collected from the spot. Recovery memo thereof is Ex. Ka-19. The police arrested one of the appellants Manga Tyagi on 14.12.2009 i.e. on the 6th day of the incident, and on making the self-incriminatory statement by him, rest of the accused persons were also got arrested. At the instance of Manga Tyagi, a country made 315 bore pistol and two live cartridges were recovered by the Investigation Officer from the spot. Recovery memo thereof is Ex. Ka-11A. The investigation culminated into submission of chargesheet Ex. Ka-13 against as many as six accused persons for the offence of Section 302/120B IPC. A separate chargesheet Ex. Ka-22 was also submitted against the accused Manga Tyagi for the offence of Section 25 Arms Act. The charges were levelled by the trial court accordingly. The recovered 315 bore rifle cartridge case and 4 fired cases of auto pistol cartridges, one country made pistol along with 2 live 315 bore cartridges were sent to the Forensic Science Laboratory for analysis. Besides, 3 fired 32 bore jacketed bullets recovered from the dead body during the autopsy were also sent for the forensic science examination. Though the report of Forensic Science Laboratory dated 15.9.2010 could not be marked as an exhibit, but it is admissible in the evidence as the same has been forwarded by the Junior Scientific Officer (Ballistics) of the laboratory and is available on the record. 5. We would like to mention that this report of Forensic Science Laboratory is not supportive to the prosecution version because it has been opined by the scientist that the rifle cartridge case, which was recovered by the Investigation Officer from the spot on the next day of the incident, could not have been fired through the country made pistol recovered from Manga Tyagi. Besides, the auto pistol of 32 bore could not be recovered by the police from any of the accused persons in order to prove that 4 fired cases of 32 bore auto pistol cartridges, seized from the spot, were fired from such weapon. Besides, the auto pistol of 32 bore could not be recovered by the police from any of the accused persons in order to prove that 4 fired cases of 32 bore auto pistol cartridges, seized from the spot, were fired from such weapon. So, this way the report of Forensic Science Laboratory is not in line with the oral and other substantial evidence available on the record. However, having heard learned Counsel for the appellants as well as learned State Counsel, we feel that there is sufficient other evidence available on the record which leads to an irresistible conclusion about the guilt of the appellants, who have committed this ghastly crime. The sole reason that one case of empty rifle cartridge was not found to have been fired by the country made pistol recovered from Manga Tyagi and also the auto pistol of 32 bore could not have been recovered, whereas 4 fired cases of 32 bore were recovered from the spot cannot be the determinative factor because the possibility cannot be ruled out that the assailants were aware about the legal implications and thus smart enough not to leave the empty cases of same cartridges which were used to commit the offence and instead to drop different cases of empty cartridges in order to mislead the investigation and pave the way for belying the entire prosecution story. Hence, mismatch of these cartridge cases in the test of forensic science laboratory cannot be made the sole basis to discard the rest of the prosecution evidence on record. 6. On careful examination of the evidence, we find that PW1 Pankaj Jindal, the real brother of the deceased, who though could not see the assailants at the time of firing, but immediately after the incident, he saw from the roof of his first floor that his brother Naveen Jindal was lying on the earth in a seriously injured and his bike was lying on his body. Taking his injured brother in the car, he rushed to the hospital. However, by the time the injured was shifted to the hospital, he succumbed to the injuries. PW1 has categorically stated that Sunil Rathi, a dreaded criminal, had demanded rupees 15 lakhs from him in the year 2006 and had threatened to kill him in case of default in payment. So, he had lodged the report against Sunil Rathi at that time. PW1 has categorically stated that Sunil Rathi, a dreaded criminal, had demanded rupees 15 lakhs from him in the year 2006 and had threatened to kill him in case of default in payment. So, he had lodged the report against Sunil Rathi at that time. PW1 has expressed his apprehension that since the demand was not met by him, so at the instance of Sunil Rathi, the assailants had come to kill him, but due to little difference in the time of reaching home after closure of the shop, they mistook his brother Naveen Jindal for him and committed the said incident. PW1 has further deposed that he used to return from his shop at 8 PM, while his brother invariably used to come back from his shop at around 8.30 to 8.45 PM. The time of return of his brother from the shop did not vary with the difference of 1-2 hours. 7. Learned Sr. Counsel for the appellants has argued that the alleged demand made in the year 2006 was for rupees five lakhs only, but here in the instant case, PW1 has disclosed the said demand to be of rupees fifteen lakhs. Although the case was registered against Sunil Rathi on the FIR lodged for illegally demanding rupees five lakhs in the year 2006 and the accused Sunil Rathi was convicted by the Trial Magistrate, but the said case ended in acquittal by the Additional Sessions Judge and the judgment of acquittal was also filed during the course of trial of this case. 8. We are of the view that these contentions of the learned Sr. Counsel for the appellants have no force for the reason that as regards the demand of alleged extortion money, whether it was fifteen lakhs or five lakhs, the witness has not been confronted on this score. As regards the acquittal of Sunil Rathi in that case, we feel, it is immaterial for the purpose of adjudication of the present case. Rather, this episode is sufficient to generate the feelings of revenge in the heart and mind of Sunil Rathi against Pankaj Jindal for all the more reason that the alleged demand could not be fulfilled. 9. Learned Sr. Rather, this episode is sufficient to generate the feelings of revenge in the heart and mind of Sunil Rathi against Pankaj Jindal for all the more reason that the alleged demand could not be fulfilled. 9. Learned Sr. Counsel for the appellants has further contended that the complicity of Sunil Rathi cannot be ascribed in commission of the instant incident for the reason that even at the time of demand of extortion money in the year 2006 till today, he has been languishing in prison facing trials and undergoing sentences awarded to him in different cases. We do not find any substance in this argument for the reason that formidable oral and other substantial evidence are available on the record which point towards his guilt in this crime. 10. PW2 Sachin Agarwal is the witness of inquest and he has proved his signature upon the inquest report Ex. Ka-6. His evidence is relevant to this extent only. 11. PW3 Kallu is an important witness who links the assailants with the crime. On 8.12.2009, he along with his brother Irfan had gone to Salonipuram colony (place of incident) on a motorcycle. They (Kallu and Irfan) had gone there to meet Iqram, who was constructing his house near the house of the deceased. However, they did not find Iqram. When they were going back from the colony, they came across the accused appellants Praveen Balmiki, Manga Tyagi and Nafees, who were on a black Discover motorcycle. Kallu and his brother-in-law Irfan were well acquainted with all these three aforenamed appellants. They had met the appellants at about 8.15 to 8.30 PM, i.e. just prior to the time of incident. All the appellants talked to Irfan and also disclosed that they were looking for Mr. Jindal and had come to call on him. PW3 has also deposed that all the three aforenamed accused persons were the members of Sunil Rathi gang. Having talked this much, PW3 along with his brother-in-law Irfan went to their home. They came to know on the next day that Naveen Jindal had been shot dead in front of his house. So, this PW3 expressed his full confidence that the incident had been committed by Manga Tyagi, Praveen Balmiki and Nafees. This witness has also identified all these three appellants standing in the dock of the Court. 12. They came to know on the next day that Naveen Jindal had been shot dead in front of his house. So, this PW3 expressed his full confidence that the incident had been committed by Manga Tyagi, Praveen Balmiki and Nafees. This witness has also identified all these three appellants standing in the dock of the Court. 12. It has been argued on behalf of the appellants that this witness is a pocket witness of the police, but nothing has been brought on the record as a concrete proof to prove the same except the hollow suggestions. So, we are not inclined to accept this contention put forth by the learned Sr. Counsel for the appellants. 13. PW4 is Irfan, who was present along with PW3 Kallu while coming across to Nafees, Praveen Balmiki and Manga Tyagi on 8.12.2009 between 8.15 to 8.30 PM at the place of incident. He has deposed disclosing the presence of these aforenamed accused appellants and their interaction with him in the same manner as has been deposed by the PW3. So, he has perfectly corroborated the testimony of PW3. This witness PW4 has also disclosed the reason of his knowing the identity of the accused persons. He has deposed that few days before the incident, he had gone to Roorkee Court where he had noticed a crowd, and the people told him that the crowd was there because of the presence of Sunil Rathi and the persons surrounding him were his gang men. Among these persons Praveen Balmiki, Nafees and Manga Tyagi were also there. Since then he knew all these assailants nay he was well in acquaintance with the accused Nafees because he was a resident of nearby village of his native place and Nafees used to visit his village often. PW4 has also identified all the three aforenamed appellants standing in the dock. 14. PW5 is Mohd. Kamil, another significant witness. He links the aforenamed three assailants with Sunil Rathi. He has deposed that on 8.12.2009 at about 2 PM, he had gone to the Roorkee Court and began to quench his thirst on a hand pump inside boundary of the Court premises. He noticed that Sunil Rathi, who was brought from the jail under police escort, was talking to Manga Tyagi, Nafees and Praveen Balmiki. He overheard that Sunil Rathi was instructing his said companions to kill someone. He noticed that Sunil Rathi, who was brought from the jail under police escort, was talking to Manga Tyagi, Nafees and Praveen Balmiki. He overheard that Sunil Rathi was instructing his said companions to kill someone. Next day, he came to know about the death of Naveen Jindal. The presence of Sunil Rathi in Roorkee Court on 8.12.2009 under police escort is proved on the record by the documentary evidence, which is certified copy of the order sheet of the Court. So, this way, evidence of PW5 Mohd. Kamil is very relevant and is clinching one and it is an important part in the chain, which points towards the complicity of Sunil Rathi in the commission of crime through his gang members. 15. It has been argued on behalf of the appellants that DW3 Govind Singh Kunwar, who was in-charge to escort Sunil Rathi from Pauri jail for presenting him in Roorkee, has deposed otherwise. This argument is not acceptable for the reason that no police personnel can ever accept that he permitted an accused to interact with any other person while on way to the Court, otherwise, there would be a clear-cut inference of dereliction of the duty on the part of that police personnel. So, in that regard, the testimony of DW3 is not acceptable. 16. We do not find any substance in the testimony of DW1 Smt. Sunita who has testified that her brother Manga Tyagi was with her from 7.12.2009 to 11.12.2009 in order to attend her ailing child. 17. Although PW5 has partially resiled from his statement under Section 161 CrPC, but it is the settled proposition of law, propounded a number of times by the Hon’ble Apex Court, that testimony of even a hostile witness can be taken into consideration and accepted to the extent it supports the prosecution version. From the deposition of this witness Mohd. Kamil, it is proved that on 8.12.2009 at about 2 PM, Sunil Rathi was busy in interaction with his aforenamed assailants and he was also issuing the instructions to kill someone. Thereafter on the same day in the evening at about 8.30 PM, Naveen Jindal was shot dead in front of his house and these three persons Nafees, Manga Tyagi, Praveen Balmiki were seen there, who had also disclosed to PW3 and PW4 that they were looking for Mr. Jindal. 18. Thereafter on the same day in the evening at about 8.30 PM, Naveen Jindal was shot dead in front of his house and these three persons Nafees, Manga Tyagi, Praveen Balmiki were seen there, who had also disclosed to PW3 and PW4 that they were looking for Mr. Jindal. 18. PW6, PW7 and PW8 are formal witnesses. PW9 is Dr. Ajay Mohan. He has proved the injuries, mentioned above, found in the dead body of the victim. 19. PW10 Dinesh Singh Bhandari is the Investigation Officer. He has proved the submission of the chargesheet as a result of his investigation. Nothing could be elicited from the lengthy cross-examination, which he had faced at the hands of separate Defence Counsel of the each accused so that any doubt can be created in the prosecution story. 20. As regards the recovery of country made pistol and two live cartridges from Manga Tyagi, he has not specifically denied his signature upon the recovery memo pertaining thereof. So, simply stating that all the papers have been prepared falsely is not sufficient to absolve him from the offence of Section 25 Arms Act. 21. In view of what has been discussed above, we feel that the case against the accused appellants is proved beyond all shadow of doubt. We find no illegality, irregularity or incongruity in the impugned judgment and order. 22. Consequently, we dismiss both these appeals and uphold the conviction of the accused appellants and the sentence awarded to them by the trial court. We, accordingly, affirm the impugned judgment and order dated 4.3.2013, passed by the Ist Additional Sessions Judge, Haridwar. Accused appellants are in jail. They shall serve out the remaining period of their sentence. Let a copy of this judgment and order along with LCR be sent to the court below for compliance.