JUDGMENT Anant Kumar, J. Both these appeals are connected with each other and arise out of the same judgment and order and as such, they are disposed of by a common judgment. 2. Criminal Appeal No. 4149 of 2007 under Section 374 (2) of the Code of Criminal Procedure has been filed by Satyabrat Rai whereas Criminal Appeal No. 5206 of 2007 has been filed by Rajeev Kumar Tiwari alias Babloo. These criminal appeals have been filed against the judgment and order dated 16.6.2007 passed by Additional District and Sessions Judge, Court No. 10, Gorakhpur in Sessions Trial No. 142 of 1998, State vs. Satyabrat Rai and others by which the appellants have been convicted and sentenced under Section 302 read with section 34 IPC to undergo imprisonment for life and a fine of Rs.25,000/- has been imposed. They have been further convicted and sentenced under Section 452 IPC to undergo rigorous imprisonment for 3 years and a fine of Rs.2000/- has been imposed. In default of payment of fine, further two years additional imprisonment has been imposed. However, the the accused persons have been acquitted under Section 506 IPC. 3. On 21.6.1997 at 22: 50 P.M., complainant Mata Prasad Dwivedi had submitted a written complaint at police station Cantt. District Gorakhpur to this effect that on 21.6.1997 the complainant and his sons Ashok Kumar Dwivedi, Dan Bahadur Dwivedi, Subhash Dwivedi and neighbour Ramagya Gupta son of Suresh Gupta were sitting in front of residential house of Power House Colony where there was light of electricity. At about 9: 45 P.M. a Maruti Gypsy of white colour came all of sudden and stopped there from which Anand Pandey, Shri Prakash Shukla, Satyabrat Rai son of late Dan Bahadur and Rajeev Kumar Tiwari alias Babloo came out having weapons in their hands. Seeing them, we ran away. The complainant's son Ashok Kumar Dwivedi rushed into the residential house. The accused persons chased him in the house and opened fire upon him. Other son Dan Bahadur ran behind them and he was also shot dead on the road who had died there. Entire incident was seen by all of us. All the accused persons giving threat of life and making fires ran away in the Gypsy. It is further stated in the complaint that the complainant has taken his injured son Ashok Kumar Dwivedi to District Hospital Gorakhpur where he died. Entire incident was seen by all of us. All the accused persons giving threat of life and making fires ran away in the Gypsy. It is further stated in the complaint that the complainant has taken his injured son Ashok Kumar Dwivedi to District Hospital Gorakhpur where he died. This incident was occurred due to enmity. The request was made that his report be lodged and legal action be taken. 4. On the basis of the complaint, a chik F.I.R. was prepared at Crime No. 1311 of 1997, under Sections 302, 506, 452 IPC. The investigation was handed over to Surybali Singh, Investigating Officer who visited the place of occurrence and prepared the site plan. From the spot, live and used cartridges were recovered. The Investigating Officer collected the bloodstained and plain soil from both the places i.e. the place where the deceased Ashok Kumar Dwivedi was shot fire inside the house and the place where the dead body of Dan Bahadur Dwivedi, other son of the complainant was found live and used cartridges were collected. Inquest report of both the deceased persons was prepared and the dead bodies of both the deceased persons were sent for postmortem. The post-mortem examination of both the dead bodies of Ashok Kumar Dwivedi and Dan Bahadur Dwivedi was done by Dr. O.N. Gupta on 22.6.1997. 5. The doctor found the following ante-mortem injuries on the dead body of the deceased Ashok Kumar Dwivedi: - (1) Fire arm wound of entrance 1 cm x 1 cm x chest cavity deep on the left side chest 6 cm below left nipple at 6 O' clock position, margins inverted. Blackening and charring around the wound, margins present directed. (2) Fire arm wound of entrance 1/2 cm x 1/2 on the right side lower jaw back, margins inverted, blackening and charring around the wound margins present. (3) Fire arm wound of exit ¾ cm x ¾ cm on the middle of left side neck margins averted, corresponding with injury no. 2. (4) Fire arm wound of entrance 1/2 cm x 1/2 cm on the back of left forearm back lower 3rd margins inverted. Blackening and charring around the wound margins present. (5) Fire arm wound of exit 3/4 cm x 3/4 cm margins averted sidelong on the back of left arm corresponding to injury no. 4. 6. 2. (4) Fire arm wound of entrance 1/2 cm x 1/2 cm on the back of left forearm back lower 3rd margins inverted. Blackening and charring around the wound margins present. (5) Fire arm wound of exit 3/4 cm x 3/4 cm margins averted sidelong on the back of left arm corresponding to injury no. 4. 6. The doctor found the following ante-mortem injuries on the dead body of the deceased Dan Bahadur Dwivedi : - (1) Fire arm wound of entrance 1/2 cm x 1/2 cm x cavity deep on the parietal region, 2 cm above right ear. Blackening and charring present. (2) Fire arm wound of exit 3/4 cm x 3/4 cm corresponding to injury no. one just above left ear. (3) Fire arm wound of entrance 1/2 cm x 1/2 cm x cavity deep 4 cm above injury no. 1. Margins inverted. (4) Fire arm wound of exit 3/4 cm x 3/4 cm corresponding to injury no. 3 on the left parietal region margins inverted. (5) Fire arm wound of entrance 1/2 cm x 1/2 cm x bone deep below right ear, margins inverted. (6) Fire arm wound of exit 3/4 cm x 3/4 cm x corresponding to injury no. 5 on the left side zygonation process. (7) Fire arm wound of entrance 1/2 cm x 1/2 cm x bone deep on right side face 2 cm lateral to right eyebrow. Charring and blackening present around the wound. (8) Fire arm wound of exit 3/4 cm x 3/4 x cavity deep on the left side neck margins averted. (9) Superficial fire arm wound 1/2 cm x 1 cm cavity deep to middle of abdomen. 7. The Investigating Officer investigated the case and filed charge sheet in the Court against the accused persons. Before committal of the case, the C.J.M., Gorakhpur had separated the file of accused persons Shiv Prakash Sukla and Anand Pandey vide order dated 18.3.1998 and case of only accused persons Satyabrat Rai and Rajeev Kumar Tiwari alias Babloo was committed and the trial court proceeded against these two accused persons. Charges were framed against them and during trial, total 10 witnesses were produced before the trial court. P.W.-1 Mata Prasad Dwivedi, complainant, P.W.-2 Subhash Dube and P.W.-3 Suman Dube wife of deceased Ashok Kumar Dwivedi are the witnesses of fact whereas P.W.-4 Kodai Prasad Mishra is the scriber of the chik F.I.R., P.W.-5 Dr. Charges were framed against them and during trial, total 10 witnesses were produced before the trial court. P.W.-1 Mata Prasad Dwivedi, complainant, P.W.-2 Subhash Dube and P.W.-3 Suman Dube wife of deceased Ashok Kumar Dwivedi are the witnesses of fact whereas P.W.-4 Kodai Prasad Mishra is the scriber of the chik F.I.R., P.W.-5 Dr. O.N. Gupta who had conducted postmortem on both the dead bodies of the deceased Ashok Kumar Dwivedi and Dan Bahadur Dwivedi, P.W.-6 Deepak Sharma S.O. police station Tiwaripur who had executed the order of the Court under Section 83 of the Cr.P.C. against the accused persons Rajeev Kumar Tiwari alias Babloo and Satyabrat Rai, P.W.-7 Suryabali Singh Investigating Officer of the case, P.W.-8 Mewaram Arun, the then Incharge Police Outpost, Railway Colony who had prepared the inquest report, P.W.-9 Constable 668 Surendra Singh, and P.W.-10 Constable 920 Jai Prakash Rai who had taken the deadbody of the deceased persons to police line have been examined. 8. On behalf of the defence, one witness D.W.-1 B.D. Chaudhary, Farmasist District Hospital, Gorakhpur has been produced. 9. After completion of the prosecution evidence, statements of the accused persons were recorded under Section 313 Cr.P.C. and after hearing the learned counsel for the prosecution as well as defence, learned trial court has held that the prosecution has succeeded to prove the guilt of the accused persons and has convicted both the appellants as stated above, hence, this appeal has been filed. 10. We have heard Sri Dileep Kumar, learned counsel for the appellants in support of both the appeals, Sri P.C. Srivastava, learned counsel for the complainant and Sri Sangam Lal Kesarwani, learned Additional Government Advocate for the State. 11. It is mainly argued by learned counsel for the appellants/defence that as per postmortem report, in the ante-mortem injuries of both the deceased persons blackening and charring were found present which shows that shots were fired upon both of them from a very close range though as per version of the F.I.R., fire was opened upon the deceased Dan Bahadur Dwivedi when he was running so there is no chance that charring and blackening will come in the wounds of the deceased Dan Bahadur Dwivedi. It is also argued that the dimensions of injuries caused on both the deceased persons show that the dimensions of the injuries are almost same and will goes to show that one and the same weapon was used in the crime and there is every possibility that the injuries might have been caused by other two accused persons, who were not put to trial before the trial court. It is further argued that the bullet recovered from the dead body of the deceased Ashok Kumar Dwivedi was not sent for chemical examination. It is further argued that it has come in evidence that on the cloths of witness Suman Dube wife of deceased Ashok Kumar Dwivedi, there were bloodstains but the cloths of this witness were not sent for chemical examination. It is also argued that the narration of prosecution regarding the manner of incident is very doubtful because of fact that as per prosecution version, incident had taken place in presence of witnesses P.Ws.-1, 2 and 3 and the accused persons had also seen the witnesses but none of the witnesses has sustained any injury because it was quite natural that since these witnesses had seen the occurrence and they were eyewitness of the occurrence, the accused persons could have killed them also but non sustaining of injury by the accused persons creates doubt regarding the presence of the accused persons. 12. It is further argued that as per prosecution version, occurrence had taken place in a residential Power House Colony and as per spot memo, lot of residential houses are there but none of inhabitants of these houses has been made as a witness. It is further argued that in the spot memo, presence of P.W.-3 Suman Dube has not been shown and her presence is also highly doubtful on the spot. It is also argued that though as per version of the F.I.R. electric light was available on the scene of occurrence but the Investigating Officer has not shown any such electric-pole in the residential Power House Colony and since the occurrence has taken place in the night and presence of light is doubtful, the accused persons could not be recognized in the night. It is also stated that presence of light on the scene of occurrence is also doubtful because of the fact that it came in evidence that the police had reached on the spot in the night itself but in the absence of proper light, inquest report of the deceased Dan Bahadur Dwivedi whose body was lying on the road, could not be prepared in the night and the same was prepared on the next day morning. This fact also goes to show that on the spot no light was there. Regarding presence of complainant at the time of occurrence, it is argued that it is highly doubtful that P.W.-1 complainant was present on the spot because in the police paper, his name is not mentioned as a person who had taken the injured Ashok Kumar Dwivedi to the Hospital. It is highly doubtful as to who had taken the injured Ashok Kumar Dwivedi to the Hospital. 13. Lastly, it is argued that in the police papers, title of the case and name of the accused persons are not mentioned and in the police paper Form No. 13, time of death of the deceased has been left blank which all goes to show that till preparation of the police papers, no F.I.R. was in existence and F.I.R. was prepared later on with consultation and the facts mentioned in the same are perverted. It is also stated that this fact is further strengthened because though both the inquest reports were prepared at two different places but in both the papers, same persons have been mentioned as punch and as such, there is non compliance of Section 174 Cr.P.C. 14. Per contra, on behalf of the prosecution, it is stated that the distance from the scene of occurrence to the police station is around 1: 00 K.M. and the occurrence is said to have taken place at 9: 45 P.M. whereas F.I.R. was promptly lodged at 22: 50. Written complaint was submitted by Mata Prasad Dwivedi and G.D. entry in this regard shows the presence of complainant at police station. So, the presence of P.W.-1 Mata Prasad Dwivedi on the scene of occurrence cannot be doubted. It is also stated that since occurrence has taken place in residential house of the Power House Colony, so there is every possibility that in all the houses, there may be electric connection. So, the presence of P.W.-1 Mata Prasad Dwivedi on the scene of occurrence cannot be doubted. It is also stated that since occurrence has taken place in residential house of the Power House Colony, so there is every possibility that in all the houses, there may be electric connection. In the F.I.R. itself, the presence of light is shown, so if the Investigating Officer has faulted to show the electric-pole in the Colony it will not affect the prosecution story. It is also argued on behalf of the prosecution that both the appellants are residents of the same colony and they were known to the witnesses since before the occurrence. So, they may be recognized by the witnesses even in dim light. It is further stated that so far as the blackening and charring of the deceased are concerned, since it has come in evidence that the deceased Ashok Kumar Dwivedi was killed inside the house and accused persons had entered in the house chasing him and he was shot fire inside the room whereas the other deceased Dan Bahadur Dwivedi was killed at the road outside the house. So, both the deceased persons were shot fires from a very close range so blackening and charring found on the body of the deceased is quite natural and in fact, supports the prosecution version. It is further argued that so far as argument of learned counsel for the appellants that it is not clear as to who had taken the injured Ashok Kumar Dwivedi to the Hospital is concerned, D.W.-1 B.D. Chaudhary, Farmasist District Hospital, Gorakhpur, on behalf of the defence, has clearly stated that the deceased was admitted in the Hospital by one Ramagya Gupta son of Suresh Gupta which is mentioned in the E.O.P.D. register and at Serial No. 20/4657, this entry has been made at 10: 45 P.M. So, it is stated that since the injured himself was admitted in the hospital in the night, time of occurrence cannot be doubted. It is further stated that both the accused persons are notorious criminals and after the occurrence, they fled away from their respective houses and when they were tried to arrest, they were not found and record shows that even proceedings under Sections 82 and 83 Cr.P.C. were undertaken and ultimately, both of them were arrested in Delhi. It is further stated that both the accused persons are notorious criminals and after the occurrence, they fled away from their respective houses and when they were tried to arrest, they were not found and record shows that even proceedings under Sections 82 and 83 Cr.P.C. were undertaken and ultimately, both of them were arrested in Delhi. So, if the accused persons were innocent why they left their respective houses after the occurrence. This circumstance also goes against them and goes to show that they are guilty. They were involved in the crime. So far as the argument of learned counsel for the appellants regarding the shortcomings in the prosecution papers and non sending of the bloodstained cloths of P.W.-3 Suman Dube for chemical examination are concerned, it is stated that all these are the fault of Investigating Officer who has prepared the inquest report and merely on this ground, the entire prosecution story cannot be thrown away. 15. We have considered the rival submissions of learned counsel for the parties and gone through the record. 16. In this case, the occurrence is shown to have taken place at 9: 45 P.M. on 21.6.1997 and the F.I.R. of the occurrence was lodged on 21.6.1997 at 22: 50 P.M. on the basis of written complaint (Ex. Ka-1) submitted by the complainant Mata Prasad Dwivedi in the police station. The written complaint is in handwriting of the complainant himself who has proved the same. At the time of registration of the F.I.R., G.D. Rapat No. 64 was prepared in police station Cantt. at 22: 50 P.M. on 21.6.1997 which is Ex. Ka-4 and is on record. It shows the presence of Mata Prasad Dwivedi at the police station at the time of lodging of F.I.R. So it is apparent from the record that the F.I.R. in this case was promptly lodged by the complainant and he himself went to police station to lodge the F.I.R. 17. P.W.-1 Mata Prasad Dwivedi has stated in his statement that on the date of occurrence, he was living in Power House Colony in quarter No. D-29 whereas accused Rajeev Kumar Tiwari @ Babloo was living in the same colony in quarter No. D-14 and accused Anand Pandey was also living in the same colony in quarter No. D-21 illegally. P.W.-1 Mata Prasad Dwivedi has stated in his statement that on the date of occurrence, he was living in Power House Colony in quarter No. D-29 whereas accused Rajeev Kumar Tiwari @ Babloo was living in the same colony in quarter No. D-14 and accused Anand Pandey was also living in the same colony in quarter No. D-21 illegally. At the house of Anand Pandey, various criminals were visiting and they were doing different type of atrocities and were demanding money from the inhabitants of the colony and since the complainant was the Office Bearer of the Association he was opposing these activities. It is further stated that in the year 1994, Satyabrat Rai and Anand Pandey had tried to kill my son Ashok Kumar Dwivedi regarding which Subhash Dwivedi son of complainant has lodged a report and due to this, the accused persons were inimical to him. It is further stated that on 6.5.1997, accused Satyabrat Rai has beaten one Munna Harijan and his pregnant wife and at the request of Munna, he has written an application. These were enmity between the parties. He has further stated that on 21.6.1997 at about 9: 45 P.M. he was sitting outside his residence where there was electricity light. At that time, one Maruti Gypsy of white colour came there. The said Gypsy was having siren and beacon light. From the said Gypsy, four persons, namely, Satyabrat Rai, Rajeev Tiwari alias Babloo, Shri Prakash Shukla and Anand Pandey came out. All the accused persons were having weapons in their hands. They proceeded towards his son Ashok Kumar Dwivedi, thereupon Ashok ran inside the quarter then all the four accused persons ran behind him and entered in the residential quarter and inside the house, they inflicted fire arm injury upon him. When accused persons came out from the house, the complainant ran away towards cattle shadow to save his life but the complainant's sons Subhash, Ramagya and Dan Bahadur ran towards main gate of the Colony then all the accused persons chased Dan Bahadur and opened fire upon him due to which he died, thereafter the accused persons ran away from the said Gypsy opening fire and giving threats of life. When the accused persons left the scene of occurrence, the complainant had gone inside the house. When the accused persons left the scene of occurrence, the complainant had gone inside the house. At that time, Ashok was smeared with blood but by that time, he was alive and he was taking breath. He was immediately taken to District Hospital by the complainant and Ramagya. He was admitted in emergency ward of the Hospital where he died. In the hospital itself, complainant had prepared a complaint which was lodged in the police station. 18. P.W.-2 Subhash Dube has also given similar statement and has stated that on the date of occurrence, at about 9: 45 P.M. he was sitting outside the house in air along with his father Mata Prasad Dube, brothers Ashok Kumar Dube and Dan Bahadur and neighbour Ramagya. There was electric light in the area. All they were gossiping. At that time, one Maturi Gypsy of white colour came there from which the accused persons, Satyabrat Rai, Babloo Tiwari alias Rajeev Kumar Tiwari, Anand Pandey and Shri Prakash Shukla came out. Out of them, Satyabrat Rai and Rajeev Kumar Tiwari alias Babloo are present in the court. All the accused persons were having arms. Seeing them, the witnesses immediately rushed to escape themselves. Ashok ran away inside the house. Then all the accused persons chased him and inside the house, accused persons opened fire upon him. He further stated that he has saved himself by hiding behind the wall of the back portion of the house. After sometime, he had seen that all the four accused persons have chased Dan Bahadur towards the road and he was killed by fire and he died on the spot. Thereafter, all the four accused persons who came in the said Gypsy which was having beacon light, ran away blowing siren of Gypsy and opening fire. When they went inside the house, the injured Ashok Kumar was taking breath then, he was taken to hospital by his father Mata Prasad, Ramagya and some more persons where he has died. Then his father has gone to the police station to lodge the F.I.R. At both the places where Dan Bahadur Dwivedi has fallen and Ashok Kumar Dwivedi was lying, a lot of blood on the floor and nearby was there. A baniyan of Ashok having bloodstained was lying. From both the scene of occurrence, Investigating Officer has collected the bloodstained and plain soil which were sealed in separate boxes. A baniyan of Ashok having bloodstained was lying. From both the scene of occurrence, Investigating Officer has collected the bloodstained and plain soil which were sealed in separate boxes. Investigating Officer had further collected empty and live cartridges from both the scene of occurrence and had sealed regarding which a memo was prepared which was signed by him and Ramagya Gupta. 19. P.W.-3 Suman Dube wife of deceased Ashok Kumar has also been examined who has supported the prosecution version. She has stated that on 21.6.97 at about 9: 30 to 10: 00 P.M. when she was present inside the house, electric light was there and because of heat, his husband, brothers-in-law, father-in-law were sitting outside the house. Electric-pole was there where there was light. All of sudden, she heard noise of stopping a car. Immediately, thereafter his husband having baniyan in his hand rushed inside the house and came in my room and conceal himself in a corner of the room. Chasing him, four persons Satyabrat Rai, Rajeev Tiwari alias Babloo, Anand Pandey and Shri Prakash Shukla having pistols and revolver in their hands came there. This witness recognized the accused Satyabrat Rai and Rajeev Kumar Tiwari alias Babloo in the court. She begged them for the life of his husband but they had not paid any heed and had opened fire upon Ashok Kumar Dwivedi. Thereafter, they had left the room. After sometime, noise of some more firing came from outside the house, then she heard sound of beacon of the same vehicle and thereafter she heard sound of leaving the vehicle. After the incident, his father-in-law came inside the house when husband of P.W.-3 was throbbing and he was breathing. Immediately, he was taken to the hospital but his life could not be saved. Later on, it was disclosed that these accused persons had killed his brother-in-law Dan Bahadur Dwivedi also. 20. All the three witnesses of fact produced on behalf of the prosecution are the family members. In this regard, learned counsel for the appellants has argued that all the three witnesses are family members and none of independent witness has been produced. Later on, it was disclosed that these accused persons had killed his brother-in-law Dan Bahadur Dwivedi also. 20. All the three witnesses of fact produced on behalf of the prosecution are the family members. In this regard, learned counsel for the appellants has argued that all the three witnesses are family members and none of independent witness has been produced. So, their evidence is not worth of belief but to our view, it is settled proposition of law that merely because the witnesses are family members, their evidence cannot be discarded only on this ground and only this much is there that evidence of family members should be scrutinized cautiously and a close scrutiny is required in this regard. This apart only because no independent witness of vicinity has been examined as witness of fact, the evidence of PWs 1, 2 and 3 cannot be discarded. It is settled proposition of law that it is not the matter of quantity of evidence but the quality of evidence produced by the prosecution is to be considered. In this regard, a reference can be taken to a case law reported in Food Inspector v. G. Satyanarayana, 2002 (45) ACC 267 (SC), wherein the Hon'ble Supreme Court has held that it is not the number of witnesses but it is the quality of evidence which is required to be taken note of by the courts for ascertaining the truth of the allegations made against the accused. Section 134 of The Evidence Act provides that no particular number of witnesses is required for proof of any fact. The witnesses of fact produced on behalf of the prosecution, are trustworthy and well reliable and merely because no independent witness has been examined, the evidence of witnesses of fact cannot be discarded. From perusal of evidence of all the three witnesses of fact, it is evident that on comparing to each other in their evidence is found consistency and there is no major contradiction between all the three witnesses so far as factum of occurrence is concerned. 21. From perusal of evidence of all the three witnesses of fact, it is evident that on comparing to each other in their evidence is found consistency and there is no major contradiction between all the three witnesses so far as factum of occurrence is concerned. 21. So far as argument of learned counsel for the appellants to this effect is concerned that though P.W.-3 Suman Dube has stated in her statement that after her husband has sustained bullet injuries she had touched her husband due to which her hands and cloths were having bloodstained to which she had shown her father-in-law and Investigating Officer but neither the Investigating Officer had taken in possession the said cloths nor the same was sent for chemical examination. In this regard, P.W.-7 Suryabali Singh Investigating Officer of this case has stated in her statement that the bloodstained cloths of P.W.-3 Suman Dube were not shown to him by anyone. On this ground, learned counsel for the appellants has vehemently, argued that this even shows that P.W.-3 Suman Dube has not stated truth before the Court and as such, her presence on the spot is doubtful but to our view, this argument of learned counsel for the appellants has no force because merely on the ground that bloodstained cloths of P.W.-3 Suman Dube were not taken in possession by the Investigating Officer, it cannot be presumed that P.W.-3 was not present at the time of occurrence or she is not eyewitness of the occurrence. There is a mere omission on the part of the Investigating Officer. In this regard, a case law Harpal Singh v. Devinder Singh and another, 1997 (35) ACC 267 (SC). the Hon'ble Apex Court has held as follows: "But the trial court which declined to place reliance on him noted some flaws in his testimony; One such flaw is the failure of the police to collect the clothes worn by Harpal Singh which were smeared with blood during the rescue operation. We are unable to appreciate the said approach. If the clothes worn by the injured or the victims were not recovered by the investigating team that perhaps would have provided a handle to the defence to attack the prosecution case. We are unable to appreciate the said approach. If the clothes worn by the injured or the victims were not recovered by the investigating team that perhaps would have provided a handle to the defence to attack the prosecution case. But no investigating agency would normally take the trouble to seize the clothes worn by witnesses at the time they saw the occurrence merely because their clothes too had collected stains of blood during any post event activities. At any rate the said omission on the part of the investigating agency is not a flaw of that type to invite the consequence of jettisoning his testimony." 22. So far as argument of learned counsel for the appellants to this effect that the witnesses of fact were not present on the spot and after the occurrence, they were called from village and they were made witnesses of fact in this case are concerned, no such material has been produced to prove that these witnesses were not present on the spot. All the three witnesses of fact are the family members and their presence on the spot is very natural as came in evidence of P.W.-3 Suman Dube wife of deceased Ashok Kumar Dwivedi that she was having small kids also. So to look after the small kids, the presence of mother of kids is very necessary, their presence on the spot cannot be doubted and to our view, from the surrounding circumstances and the vivid description of facts given by the witnesses, their presence on the spot is very much proved and merely on this ground that they are connected to each other and are family members of both the deceased persons, their evidence cannot be discarded. 23. So far as the blackening and charring in the wounds of both the deceased are concerned, it has come in evidence that at the first instance the assailants have chased the deceased Ashok Kumar Dwivedi who had rushed inside the house and he was shot fire in the room of house. So it is evident that from a close range fire was opened upon the deceased Ashok Kumar Dwivedi and it has come in evidence of P.W.-3 Suman Dube wife of deceased Ashok Kumar Dwivedi as well. So, in his wounds, blackening and charring are natural to happen and there is no unnaturality in this regard. So it is evident that from a close range fire was opened upon the deceased Ashok Kumar Dwivedi and it has come in evidence of P.W.-3 Suman Dube wife of deceased Ashok Kumar Dwivedi as well. So, in his wounds, blackening and charring are natural to happen and there is no unnaturality in this regard. It has further come in evidence that after opening fire upon the deceased Ashok Kumar Dwivedi, the assailants opened fire upon the deceased Dan Bahadur Dwivedi and he was shot dead by the side of road at the place 'D' shown in the site plan as kharanja. So it has come in evidence that he was also shot dead from a very close range. So in his wounds also, coming of blackening and charring is not unnatural. So this argument of learned counsel for the appellants has got no force that blackening and charring in the wounds of the deceased persons are unnatural in the facts and circumstances of the case. 24. So far as the argument of learned counsel for the appellants that the evidence shows that all the injuries of both the deceased persons were of the same dimensions is concerned, it goes to show that one and the same weapon was used in the crime and there is every possibility that the injuries might have been caused by other co-accused persons who have not been put to trial before the trial court. The witnesses of fact have not disclosed any specific type of weapon used by the assailants but the witness PW-3 Suman Dube wife of the deceased Ashok Kumar Dwivedi who was inside the house at the time of occurrence, has stated in her statement that all the four assailants were having pistols and revolver in their hands. So far as specification with respect to the weapons used in the crime is concerned, nothing has been said by this witness whereas other witnesses of fact have also not disclosed any specification of the weapons used in the occurrence. It is evident from the postmortem report of the deceased Ashok Kumar Dwivedi that the deceased Ashok Kumar Dwivedi was having five injuries out of which injury nos. 1 and 2 were firearm wounds of entrance whereas injury no. 3 was firearm wound of exit corresponding to injury no. 2, likewise injury no. 4 was also firearm wound of entrance whereas injury no. 1 and 2 were firearm wounds of entrance whereas injury no. 3 was firearm wound of exit corresponding to injury no. 2, likewise injury no. 4 was also firearm wound of entrance whereas injury no. 5 was firearm wound of exit which was corresponding to injury no. 4. This deceased was having three firearm injuries, likewise the deceased Dan Bahadur Dwivedi was having nine injuries out of which injury no. 1 was firearm wound of entrance and injury no. 2 was firearm wound of exit corresponding to injury no. 1. The injury no. 3 was firearm wound of entrance whereas injury no. 4 was firearm wound of exit corresponding to injury no. 3. The injury no. 5 was firearm wound of entrance whereas injury no. 6 was firearm wound of exit corresponding to injury no. 5. The injury no. 7 was firearm wound of entrance whereas injury no. 8 was firearm wound of exit corresponding to injury no. 7 and injury no. 9 was superficial firearm wound. Total five firearm injuries were there on Dan Bahadur Dwivedi. So both the deceased were having 8 firearm injuries in all. So it cannot be presumed only on the basis of argument that only one firearm weapon was used in the crime. From perusal of the evidence on record, it is evident that the live cartridges as well as empties recovered on the spot were sealed and sent for Forensic Science Laboratory for examination. In this regard, learned counsel for the appellants has argued that the live cartridges as well as empties collected from both the places i.e. the place where deceased Ashok Kumar Dwivedi was shot and the place where deceased Dan Bahadur was shot were kept in one bundle and as such it is not evident as to which cartridge was collected from which place. To our view, the empties and live cartridges recovered from both the places would have been separately sealed, it could not have made any much difference because in shooting of both the deceased, the similar weapons were used. To our view, the empties and live cartridges recovered from both the places would have been separately sealed, it could not have made any much difference because in shooting of both the deceased, the similar weapons were used. However, report of the Forensic Science Laboratory (exhibit-Ka-23) is on record which shows that cartridges EC-1, EC-2 and EC-3 were fired from point .45 calibre, factory made arm whereas EC-4 and EC-5 were fired from .9 mm, factory made arm whereas bullet EB-1 was fired from same factory made arm and only empty cartridges EC-1 and EC-3 were found to be fired from one and the same arm. So, this report of the Forensic Science Laboratory negatives the argument of learned counsel for the appellants that in the crime only one and the same weapon was used. 25. So far as argument of learned counsel for the appellants to this effect that one bullet found from body of the deceased Ashok Kumar Dwivedi was not sent for chemical examination is concerned, to our view, merely on this ground, no benefit can be given to the accused persons as has been held by Hon'ble the Apex Court in para-15, in the case of Amar Singh v. Balwinder Singh and others,. For the sake of convenience para-15 of the said judgment is reproduced below: "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 Expert 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 all received gun shot 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 & Ors. In Paras Yadav & Ors. v. State of Bihar 1999(38) ACC 576 (SC) 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 (37) ACC 116 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. 26. So merely on the ground that the Investigating Officer had not sent the bullet recovered from the body of the deceased for chemical examination, no benefit can be given to the accused persons particularly when the eyewitness account clearly states that all the assailants were having firearm weapons in their hands and since no specification of the firearm has been disclosed by the witness, there may be every possibility that the assailants might be having similar type of firearms in their hands to cause identical firearm injuries to both the accused persons and merely on this ground it cannot be held that in the entire crime only one and the same weapon was used. 27. So far as other points argued by learned counsel for the appellants regarding non showing the presence of PW-3 in the map, non showing the electricity pole in the spot memo, blank column in Form 13 of police papers etc. 27. So far as other points argued by learned counsel for the appellants regarding non showing the presence of PW-3 in the map, non showing the electricity pole in the spot memo, blank column in Form 13 of police papers etc. are concerned, these are the shortcomings committed by the Investigating Officer and other police personnel, it is settled proposition of law that merely because there are certain shortcomings in the investigation, in this regard a reference can be taken to a case law reported in Zindar Ali Sheikh v. State of West Bengal and another, 2009 (67) ACC 404 (SC) wherein the Hon'ble Supreme Court has held that the shabby quality of investigation was severely criticized by the learned counsel. There can be no dispute that the investigation in this case is not at all satisfactory. There are discrepancies galore. However, in this case, the truthful version of the prosecutrix cannot be ignored. It is trite law that the defence cannot take advantage of such bad investigation where there is clinching evidence available to the prosecution as in this case. We, therefore, confirm the finding of the High Court that the accused is guilty of the offence under Section 376 of IPC. The benefit of doubt cannot be extended to the defence particularly in a situation when the witnesses of fact are intact and have supported the prosecution version. The similar views have recently been taken by Hon'ble the Apex Court in Babu and another v. State of Chennai, 2013 (125) AIC 224 (SC) and Hema v. State of Madras, (2013) 10 SCC 192 . All these aspects have been considered by the trial court also in detail and the judgment of the trial court is well thought and well considered and the entire argument raised before the trial court has very well been met by the trial court. 28. To our view, finding given by the trial court that the prosecution has succeeded to prove the guilt of the accused persons beyond shadow of all reasonable doubt, does not suffer from any illegality or irregularity. Learned counsel for the appellants has failed to show any patent illegality or irregularity in the judgment of the trial court which can be interfered by this Court in this appellate jurisdiction. Learned counsel for the appellants has failed to show any patent illegality or irregularity in the judgment of the trial court which can be interfered by this Court in this appellate jurisdiction. To our view, the prosecution has succeeded to prove the guilt of the accused persons beyond shadow of all reasonable doubt and the judgment of the trial court is well founded and there is no reason in this appellate jurisdiction to interfere in the judgment of the trial court and this appeal has got no force and is liable to be dismissed. 29. Both the above criminal appeals are, hereby, dismissed. Both the appellants-Rajeev Kumar Tiwari alias Babloo and Satyabrat Rai are on bail. Their bail bonds are cancelled. They will surrender immediately before the C.J.M., Gorakhpur. They shall be taken into custody and will serve out the sentences imposed upon them by the learned trial Court. In case they fail to surrender, the Chief Judicial Magistrate, Gorakhpur shall take coercive steps.