JUDGMENT Hon’ble Vipin Sinha, J.—Heard Sri Patanjali Mishra, appointed as Amicus Curiea by the Court for the appellant Nos. 3 and 4 and Sri Akhilesh Singh and Sri Rajiv Gupta, learned AGA for the State. With the consent of learned counsel for the parties, the present appeal is being finally disposed off. At the very outset it may be noted that the present appeal was filed by four appellants, namely, Dhani Ram son of Ganeshi, Khargi son of Ganeshi, Hari Shanker son of Bankey Lal and Buddhu son of Bankey Lal all residents of village Nawada, police station Bisauli, district Budaun. However, during the pendency of the aforesaid appeal, accused-appellant Nos. 1 and 2, namely, Dhani Ram and Khargi, both being real brothers, have died respectively and as such their appeal was abated vide order of this Court dated 6.3.2014 and thus at present the Court is concerned and is considering the appeal only on behalf of appellant Nos. 3 and 4. 2. This criminal appeal arises out of the judgment and order dated 14.12.1982 passed by the then VII Additional Sessions Judge, Budaun dated 14.12.1982 whereby accused-appellant, namely, Dhani Ram is sentenced to undergo life imprisonment under Section 302/109 IPC, R.I. for 10 years under Section 307 IPC and R.I. for 3 years under Section 27 Arms Act. Accused-appellant Khargi is sentenced to undergo life imprisonment under Section 302/34, R.I. for 10 years under Section 307/34 IPC and R.I for 3 years under Section 27 Arms Act. Accused-appellant Hari Shanker is sentenced to undergo life imprisonment under Section 302/34 IPC and R.I. for 10 years under Section 307 IPC. Accused-appellant Buddu is sentenced to undergo life imprisonment under Section 302/34 IPC and R.I. for 10 years under Section 307/34 IPC. All the sentences of all the four accused shall run concurrently. FACTS AND CIRCUMSTANCES OF THE PRESENT CASE 3. An FIR was lodged by Kallu Singh on 26.12.1980 at about 17:10 with regard to one incident which took place on 26.12.1980 at about 4:00 p.m. in the afternoon. The FIR was lodged against the accused-appellants, namely, Dhani Ram and Khargi, both being real brothers and two others accused-appellants, namely, Hari Shanker and Buddhu who were the nephews of accused-appellant Nos. 1 and 2, all residents of village Nawada, police station Bisauli, district Budaun. The FIR was lodged against the accused-appellants, namely, Dhani Ram and Khargi, both being real brothers and two others accused-appellants, namely, Hari Shanker and Buddhu who were the nephews of accused-appellant Nos. 1 and 2, all residents of village Nawada, police station Bisauli, district Budaun. As per the prosecution story as set up in the FIR, the deceased Jhamman Singh resident of village Sarwa had given a loan of some money to accused Dhani Ram; that on 26.12.1980 at about 3:30 or 4: 00 p.m. Jhamman Singh alongwith Kallu, Lila Dhar and Kishan Lal had gone to the house of accused Dhani Ram seeking refund of their money which was given to the accused Dhani Ram as loan; that accused Dhani Ram, on demand being raised, sought some further time to pay back the money and requested for time till Baishakh so that he may pay the money after selling his crop; that however, Jhamman Singh, the deceased insisted on immediate payment of the money; that on such insistence, Dhani Ram commented that he would settle the dispute immediately and went inside the house asking Jhamman Singh and his companions to wait for sometime; that after sometime accused Dhani Ram armed with a pauna gun (small sized gun) returned alongwith his brother Khargi who was armed with a farsa, nephew Buddu who was armed with a lathi and another nephew Hari Shanker who was armed with a pistol; that accused Dhani Ram is alleged to have exhorted his other companions to kill them and on his exhortation, accused Khargi and Buddhu are alleged to have started assaulting Jhamman Singh and Lila Dhar with lathi and farsa as a result of which Jhamman Singh fell down; that even other relations of Jhamman Singh moved forward, accused Dhani Ram and Hari Shanker opened fire with the firearms, as a result of which Kishan Lal and Lila Dhar are alleged to have received gun shot wounds; that accused Buddhu and Khargi are also alleged to have assaulted Kallu Singh with farsa and lathi; that one Sultan Singh, Mohar Singh, Dhakan Singh and Miththu had also arrived at the spot and also seen the occurrence and on their alarm and intervention, all the four accused ran away from the place of alleged incident; that Jhamman Singh died on the spot. It has further been stated that the son of the deceased, namely, Kallu Singh immediately rushed to police station Bisauli and lodged the FIR Ext. Ka-1 at the police station at 5:10 p.m., thus, apparently, the FIR was lodged within one hour of the incident. 4. As per the documents on record, on 27.12.1980, Sub Inspector D.C. Sharma had arrested accused Dhani Ram and Khargi at about 10:30 a.m.and on their arrest, they had made separate disclosure statements. It has further been alleged that accused Dhani Ram got recovered a pauna gun and accused Khargi got recovered the blood stained farsa from the field of one Mahendar; that after necessary investigation, all the four accused were challaned and four separate charge-sheets were filed against all the accused persons. 5. The Munsif Magistrate, Budaun vide his order dated 2.4.1981 committed the case against the four accused to the Court of sessions under Sections 302/307/323/324 IPC which is S.T. No. 183 of 1981; that similarly on 10.6.1981 cases under Section 25 Arms Act against accused Dhani Ram and Khargi were also separately committed by Munsif Magistrate, Budaun which was numbered as S.T. Nos. 329/81 and 330/81. However, vide order dated 21.1.1982 charges were framed under Section 302/34, 307/34 IPC and under Section 27 Arms Act against accused Khargi; under Section 302/34 and 307 IPC against accused Hari Shanker; under Section 302/109 and 307 IPC and 27 Arms Act against accused Dhani Ram and under Section 302/34 and 307/34 IPC against accused Buddhu. It was also ordered that since S.T. Nos. 329/81 and 330/81 relate to the same occurrence and are in respect of the same transaction as in S.T. No. 183/81 offences in S.T. Nos. 329/81 and 330/81 shall be tried jointly with S.T. No. 183/81. 6. In support of its case, the prosecution has examined 8 witnesses in all. Kallu Singh, the first informant and son of the deceased was examined as PW-1 who in his statement had stated that his father had given a loan of Rs. 1,200/- to the accused Dhani Ram about one year back; that when his father had gone to the house of accused Dhani Ram for refund of the said amount, the accused sought some further time. 1,200/- to the accused Dhani Ram about one year back; that when his father had gone to the house of accused Dhani Ram for refund of the said amount, the accused sought some further time. However, when his father Jhamman Singh insisted on immediate payment, accused Dhani Ram saying that the account shall be settled immediately and accused Dhani Ram went inside the house and came back armed with a small gun accompanied by accused Khargi who was armed with a farsa, accused Buddhu who was armed with a lathi while accused Hari Shanker was armed with a pistol; that accused Dhani Ram exhorted his companions to assault Jhamman Singh and his relations and on his exhortation accused Buddhu and Khargi started giving a beating to Jhamman Singh and his brother Lila Dhar with lathi and farsa. He further alleged that when he and his maternal cousin Kishan Lal moved forward, accused Hari Shanker and Dhani Ram opened fire with the weapons with them, as a result of which Kishan Lal and Liladhar received firearm injuries. He also alleged that he was given a beating by accused Khargi and Buddhu with the weapons with them. He further alleged that after receiving injuries, his father fell down on the spot and died instantaneously. He further alleged that the incident was witnesses by P.Ws. Miththu, Sultan Singh, Dhakan Singh and Mohar Singh; and on their intervention accused had run away. 7. PW-2 Kishan Lal who in his statement stated that Jhamman Singh deceased was his maternal uncle and his uncle had given Rs. 1,200/- as loan to accused Dhani Ram; that he had accompanied his uncle in the house where his uncle had demanded the money back to the accused Dhani Ram to which accused Dhani Ram had stated that he would pay the money after sometime after selling his crops in the month of Baishakh; that his uncle insisted on immediate payment; that on which demand the accused Dhani Ram retaliated by saying that ^^cSBks vHkh rqEgkjk fglkc djrs gS^^ and subsequently, he was armed with a gun and was accompanied with Khargi who was carrying a farsa, Buddhu carrying a lathi and Hari Shanker carrying a tamancha and on his exhortation everybody assaulted Jhamman Singh and his companions, as a result of which Jhamman Singh died on the spot itself. PW-2 has, in fact, corroborated the statement of PW-1 regarding the actual incident. He further stated that after the incident he alongwith Kallu Singh had gone to the police station for lodging the report. He also stated that he was medically examined. “ Liladhar was examined as PW-3 and he is also an injured witness and is, in fact, the brother of the deceased Jhamman Singh. He has corroborated the statement of PW-1 and PW-2. He has also submitted that as a result of the injuries received by him, his condition was critical and his dying declaration was recorded by the Tehsildar. 8. PW-4 is S.I. D.C. Sharma who is the Investigating Officer of the case. He stated that on 26.12.1980 the present case was registered at the police station in his presence. He further stated that after the case was registered, the injured were sent to the hospital for their medical treatment. He also stated that on 27.12.1980 he had inspected the place of occurrence and had collected the blood stained and simple earth from the alleged place of incident vide fard Ext.Ka-8 and he also stated that an empty cartridge was recovered from the scene of alleged incident vide fard Ext. Ka-9 and also stated that on 27.12.1980 itself at about 10:30 a.m.he arrested accused Dhani Ram and Khargi from near the bus stand of village Madhaiya in the presence of P.Ws Ramesh Chandra and Dr. Shanta Nand Bhatt. He also stated that after their arrest accused Dhani Ram and Khargi had made separate disclosure statements in pursuance of which the gun and the farsa were recovered. 9. PW-5 is Dr. N.P. Gupta who stated that on 26.12.1980 while he was posted as Medical Officer Bisauli, in the evening time he conducted medical examination of P.Ws Liladhar, Kallu Singh and Kishan Lal and proved their injury reports Exts. Ka-13, Ka-14 and Ka-15 respectively. 10. PW-6 is Dr. V.K. Sharma who stated that on 27.12.1980 while he was posted as Medical Officer, Civil Hospital Budaun at about 4:00 p.m. he conducted the postmortem examination on the dead body of deceased Jhamman Singh and he proved his postmortem report Ext. Ka-16. He further stated that on the dead body of deceased Jhamman Singh, he found three incised wounds and one contusion, full details of which are given in the postmortem report. Ka-16. He further stated that on the dead body of deceased Jhamman Singh, he found three incised wounds and one contusion, full details of which are given in the postmortem report. He further stated that in his opinion, deceased Jhamman Singh died because of shock and haemorrhage on account of the above mentioned anti-mortem injuries. 11. PW-7 is HC Nar Singh Yadav who proved the formal FIR Ext. Ka-17 and corresponding G.D. entry, Ext. Ka-18. He also proved copy of FIR Ext. Ka-19 and corresponding G.D. entry Ext. Kha-20 of 27.12.1980 recorded at 2:15 p.m. which related to the recovery of a gun and farsa from the possession of accused Dhani Ram and Khargi respectively. 12. PW-8 is S.I. Shah Alam Khan who was Investigating Officer of the cases against accused Dhani Ram and Khargi under Section 25 Arms Act. He stated that he had started investigation on 27.12.1980 and recorded the statements of the P.Ws. He also stated that on 28.12.1980 he visited the place from where the ‘pauna gun’ and farsa is alleged to have been recovered and prepared site plan Ext. Ka-21. He further stated that after completion of investigation, he filed a charge-sheet Ext. Ka-22 against accused Dhani Ram and Ext. Ka-23 against accused Khargi. 13. The accused were examined under Section 313 Cr.P.C. wherein they have admitted their inter-se relationship, however, they had denied the case of the prosecution and all the allegations made in the FIR and submitted that they have been falsely implicated in the present case on account of enmity; that in fact, on the alleged date of incident Kallu Singh and his servant had committed theft of pea-crop belonging to one Mewa Ram and in their said act Dhani Ram alongwith accused Khargi and Mewa Ram had caught them red handed, as a result of which Kallu left the place extending threats. It has further been submitted by Dhani Ram that on the same day at about 4:00 p.m. Kallu Singh alongwith a number of other persons came to his house armed and gave a beating to him. He also stated that in order to protect himself, Mewa Ram fired and he alongwith other relations tried to defend themselves and it was at that time that Jhamman Singh was killed. He also stated that in order to protect himself, Mewa Ram fired and he alongwith other relations tried to defend themselves and it was at that time that Jhamman Singh was killed. He also stated that after the sun was set, he and Khargi went to the police station to lodge a report, but it was not recorded and in fact, they were detained in the police station. It was also stated by Dhani Ram that on the third day he and Khargi were challaned after showing fictitious recoveries of gun and farsa. 14. In support of its version, the defence has examined two witnesses, namely, Bhanu Prakash Saxena as DW-1 who is the compounder, District Jail Budaun who proved from the jail record, the injury report of Khargi a copy of which is Ext. Ka-2 dated 29.12.1980 written in the had of Dr. R.P. Jauhari. 15. Bholey son of Ishwari resident of village Nawada was examined as DW-2 who had proved the defence version of the case as disclosed by accused Dhani Ram in his statement recorded under Section 313 Cr.P.C. which in short is to the following effect: “that about two years back at about 4 p.m. while he was tying his cattle he saw a number of people who were residents of village Sarwa coming to his village and they were shouting that Mewa Ram be killed. He also stated that he saw Mewa Ram running to his house shouting that people from Sarwa village had come and thereafter Mewa Ram went on the roof of his house alongwith his gun. He also stated that he also rushed on the roof of one Narayan and saw from there the accused Dhani Ram and Kihargi in the lane near the chaupal of Mewa Ram. He also stated that people from village Sarwa who had come there were abusing Dhani Ram and Khargi. He also stated that thereafter Jhamman Singh deceased shouted that if Mewa Ram is not there, let Dhani Ram and Khargi be killed; thereafter P.W. Kishan Lal fired from the weapon with him and other residents of village Sarwa attacked Dhani Ram, Khargi with lathis and Kantas. He also stated that in the meantime villagers of village Nawada armed with lathis and Kantas had also reached there. He also stated that in the meantime villagers of village Nawada armed with lathis and Kantas had also reached there. He also stated that when Dhani Ram and Khargi were attacked, Mewa Ram had fired from his roof while other residents of village Nawada had used the weapons with them. He also stated that in the above incident, P.Ws. Liladhar and Kishan Lal had received gun shot wounds while Jhamman Singh deceased and complainant Kallu Singh received injuries from lathis and kantas. He also stated that when firing started from both sides, people started running hither and thither. He also stated that thereafter deceased Jhamman Singh fell down unconscious near a tree. He also stated that when he came down he saw Jhamman Singh was already dead. He also stated that in the marpit accused Khargi and Dhani Ram received injuries which were not apparent on their bodies. He also stated that after sun set, accused Khargi and Dhani Ram went to the police station to lodge the report. He also stated that one year after the above incident, Mewa Ram was killed by residents of village Sarwa including Kishan Lal; after setting on fire his house and after looting his property; case of which is pending.” 16. It appears from the record that a statement in the form of dying declaration was recorded by Tehsildar, Bisauli, District Badaun at about 6:10 p.m. which was probably recorded as dying declaration as the condition of the person Lila Dhar was critical and thus, the statement was recorded by way of abundant caution. However, the fact remains that Lila Dhar survives the said incident and thus on account of his survival, the dying declaration is no more a substantive piece of evidence. 17. Learned counsel for the appellants has vehemently argued that the accused-appellants could not have been convicted under any circumstances by taking the aid of Section 34 IPC and as per his contention Section 34 IPC would not be attracted in a case of a sudden quarrel where there is no premeditation for committing a crime of the nature as in the present case. 18. 18. The Apex Court while dealing with the applicability of Section 34 IPC had observed in the case of Cherlopalli Cheliminabi Saheb and another v. State of A.P., AIR 2003 SC 1014 , wherein the Court had observed is as follows : “In regard to the nature of attack, the learned counsel for the respondent contended that it is not necessary for the prosecution to prove overt act of each of the accused persons when Section 34 is attracted, therefore, the fact that the deceased had not mentioned the particulars of the persons who attacked him may not be a ground for acquittal. Though it may not be necessary for us to go into the fact of the argument, because of our difficulty to accept the genuineness of Ex.P-4, still we would like to observe that it is not the case of the prosecution that all the accused persons came prepared to attack the deceased. It is their case that the fight started suddenly without pre-planing between the two ladies and the others joined in and somebody stabbed the deceased. Assuming this case of the prosecution to be true, in the absence of any material to show that there was any common intention, it will not be possible to attract Section 34.” 19. t has been the consistent legal position as held by the Apex Court in the various judgments that in a case of sudden quarrel and where there is absence of any preplanning or premeditation Section 34 IPC would not be attracted. In this regard, a reference may be made to the cases of Ishwar Singh v. State of U.P., 1976 (4)SCC 355 and Lalji and others v. State of U.P., 1974 (3) SCC 295. 20. A reference may also be made to the case of Pundalik Mahadu Bhane and others v. State of Maharashtra, (1997) 11 SCC 567 , wherein it has been held that in a sudden and free fight between two groups each of the persons involved in the fighting would be liable for joint act and not vicariously as it cannot be said that there was any premeditation or preplanning for committing the crime. 21. 21. In view of the aforesaid established law, the legal position which crystallizes is that in a case where there is no pre-planning or premeditation or meeting of minds for committing a crime aid of Section 34 IPC cannot be taken, and if at all, the individual act committed by each of the individuals can only be considered. In the present case, as per the evidence on record, as there was no pre-planning or premeditation on the part of the accused that they would commit the crime as alleged, rather the fact remains that the deceased Jhamman Singh alongwith his companions had arrived at the house of the accused-appellants and demanded refund of his money to which the appellant Dhani Ram had not acceded and on the other hand had sought some further time to enable him to pay back the money after he had sold his crop in the month of Baishakh to which the other side was not agreeable, as a result of which an altercation took place between the two groups which culminated in the alleged incident. By no stretch of imagination can it be said or presumed that the accused-appellants were waiting in the house armed with weapons knowing that Jhamman Singh and his companions would be coming for demanding the money and they would commit the said crime. 22. In view of the aforesaid legal position, if we examine the evidence on record, it is apparent that the main accused are Dhani Ram and Khargi both of whom have already expired and whose appeal have already been abated vide order of this Court dated 6.2.2013. However, as far as accused-appellant Hari Shanker is concerned, it is evident that no gun shot injury has been received by the deceased Jhamman Singh, in fact, Lila Dhar in his examination-in-chief has clearly stated to the effect that “Dhani Ram ne fire kiya jo mere laga.” It is evident from the record that Lila Dhar had received only one gun sought wound and he himself stated that the accused Dhani Ram had fired upon him and not the appellant Hari Shanker. At this stage, it would be relevant to refer to the injuries of Jhamman Singh which are as follows : 1.Incised wound 7 cm. x 2 cm. x bone deep 1 cm. below the chin left side underneath the injury all the muscle & measure vessel were cut. At this stage, it would be relevant to refer to the injuries of Jhamman Singh which are as follows : 1.Incised wound 7 cm. x 2 cm. x bone deep 1 cm. below the chin left side underneath the injury all the muscle & measure vessel were cut. 2. Incised wound 6 cm. x 1.5 cm x bone deep on rt. side of chin cutting with the upper & lower lip under the injury right mandible bone were cut upper central incisor with lower central incisor dislocated. Gums lacerated. 3. Incised wound 2.5 cm. x ¼ cm. x muscle deep on left side of face. 1 cm infront of ear. 4. Contusion 10 cm x 6 cm on top of rt. shoulder joint. Major blood vessels collapsed vkek'k; 8.03 identified digested food present in the stomach. NksVh vkar esa ipk gqvk [kkuk vkSj FkksMh ls xSl FkhA cMh vkar FkksMk lk i[kkuk bldh nhokjksaa ds lkFk yxk gqvk FkkA Death due to shock & haemorrhage on account of anti-mortem injuries. Thus, it is apparent that as far as deceased is concerned, he had not received any gun shot injuries. Injuries of Lila Dhar are as follows: 1. Incised wound 2 cm. x 1/3 cm. x bone deep on paumer aspect of index finger near root on right side of hand (right hand). 2. Incised wound 4 cm. x ½ cm X superficial bone cut on right medial of leg above. Medical malleous advised x-ray to see the death of cut. 3. Fire arm wound of entry 1 cm x .8 cm in diameter on right chest deeply going to the cavity (Probing beyond was not done with cripitus present all around the wound) wound was 6 cm. lacerated to nipple right side with inverted margins advised x-ray. Injuries rktk ojoDr eqvk;uk Fkh ua01 o 2 fdlh /kkjnkj Hkkys ua03 fdlh Qk;j vkeZ ls vkuk lEHko Fkh pksV ua01 lk/kkj.k Fkh ua0 2 dks ,Dljs dh lykg nh xbZ eqvk;us ds le; pqVSy dh gkyr xaEHkhj (lhfj;l) Fkh ukMh dk rst o nokc de Fkk jsV 130 per minute Fkk CyM izs'kj 80@60 MM of Mercury Fkk pqVSy dks cnk;Ww jsQj fd;k x;k MkbZax fMDyjs’ku rglhynkj }kjk fy[kk x;kA Injuries of Kallu Singh are as follows : 1. Incised wound 1 cm x 1/3 cm x bone deep left side of forehead with clean cut margins above eye brow. 2. Incised wound 1 cm x 1/3 cm x bone deep left side of forehead with clean cut margins above eye brow. 2. Contusion 3 cm x 1 cm with abrasion 1 cm x 1 cm on left shoulder with scab start. 3. Abrasion 2 ½ cm x ½ cm on left lateral of clavical with scab forming start. 4. Contusion 5 cm x 3 cm with abrasion 2 cm x 1 cm on right lateral of arm about mid colour red scab start. 5. Abrasion 1 ½ cm x 1 cm on left back of shoulder with scab forming start. mijksDr pksVs ojoDr eqvk;uk rktk Fkh lHkh lk/kkj.k FkhA 1- fdlh /kkj nkj vkys o ckdh lc dqUn vkys ls vkuk lEHko FkhA And injuries of Kishan Lal are as follows : 1. Fire arm wound of entry 1 ½ cm x 1 ½ cm on back of right hand ring finger between mid and the terminal crease wound going inside of paumer end of finger with invalid margins. 2. Fire arm wound of exit 1 cm x ¾ cm on paumer aspect of right ring finger with inverted margins with suspected fracture of bone the formality, pain, tenderness polpatian above joint space and joint advised x-ray. mijksDr pksV ojoDr eqvk;uk rktk Fkh Qk;j vkeZ ls vkuk lEHko Fkh o ,Dl&js dh jk; nh xbZ Fkh mijksDr et:cks dh fjiksVZ ojoDr eqvk;uk eSus rS;kj dh esjs lkeus esjs gkFk dh fy[kh o nLr[krh gS dze'k% bDt0 d&13] 14] o 15 gS buij et:cks ds fu'kkuh vaxwBs gS o igpku ds fpUg gSA tks et:cksa ds cnu ij bulkbTM oqUM Fks og Qjls ls vkuk lEHko FksA dYyw ds vczstu o dUVh;wtu ykBh ls vk ldrs FksA mijksDr et:cksa ds cnu ij pksVs Fkh os 26-12-82 dks ‘kke dks 4 cts Hkh vk ldrh FkhA From the aforesaid, it is clear that Kishan Lal had received only one gun shot injury and that too on the right ring finger. Doctor in his opinion with regard to the said injury had stated that : fd'ku yky ds tks pksV Fkh og nkfgus gkFk dh lcls NksVs vaxqyh ds cjkcj okyh (ring finger) ij FkhA ;g Bhd gS fd vxj et:c ds gkFk uhps yVds gks vkSj ml ij lkeus ls Qk;j fd;k tk;s rks ;g pksV lk/kkj.kr;k ugha vk;sxhA vxj et;c ds gkFk esa Qk;j vkeZ gks vkSj mlus Qk;j djus dh vkeZ mBk jD[kk gks rks ;g pksV ugh vk ldrhA As far as contusion on the body of Kishan Lal are concerned which has been mentioned by the doctor is as follows : ^^vczsMsM dUV~;wtu tks dYyw ds cnu ij gS os fxjus ls vk ldrs gSA^^ 23. Thus, from the evidence on record, it is crystal clear that the main accused, even if, the prosecution story is believed to be true, were the accused-appellant Dhani Ram and Khargi and the fact remains that Khargi had also received injuries which remain unexplained. There is evidence on record of DW-1 Bhanu Prakas Saxena that on the medical examination of accused Khargi, he found on his right hand multiple contusions and some multiple contusions on right leg which are of minor nature. The said injuries remain unexplained on record. Thus, as far as the present appeal is concerned if the individual acts are seen Buddhu had been attributed the role of causing a single injury by lathi and as far as accused-appellant Hari Shanker is concerned, Lila Dhar himself says in his statement that it was Dhani Ram who had fired upon him. 24. The Court below had considered the injuries of Khargi but had rejected the same on the ground that the timing of the injuries does not corroborate the defence version. The Court below had also disbelieved the defence version totally. The Court below itself had agreed that there are a number of discrepancies in the evidence of the prosecution. The Court below has categorically recorded a finding to the following effect that : A. So in the present case as stated above it can be said that prosecution has not been able to prove the motive beyond all reasonable doubt. However, the same may be probable. B. Even though according to the FIR Ext. The Court below has categorically recorded a finding to the following effect that : A. So in the present case as stated above it can be said that prosecution has not been able to prove the motive beyond all reasonable doubt. However, the same may be probable. B. Even though according to the FIR Ext. Ka-1 the occurrence was also witnessed by Sultan Singh, Mohar Singh, Dhakan Singh and Miththu residents of village Sarwa, but none of them has been examined by the prosecution and no plausible explanation has been given for their non-examination. C. There is difference in the version of the occurrence as given by him in FIR Ext. Ka-1 and also in his statement as PW-1 in Court. He pointed out that according to FIR Ext. Ka-1 after accused Dhani Ram returned back from his house alongwith three other accused armed with gun, in the first instance Khargi and Buddhu accused gave lathi and farsa blows to deceased Jhamman Singh and PW-3 Liladhar. Thereafter when the P.Ws. tried to move forward then accused Dhani Ram and Hari Shanker opened fire, as a result of which PW-2 Kishan Lal and PW-3 Liladhar were injured and thereafter complainant PW-1 Kallu Singh was attacked by accused Buddhu and Khargi with farsa and lathi. But when PW-1 complainant Kallu Singh was cross-examined he stated that after the fires were shot, no beating was given to him. On the face of it the above discrepancy is there. D. The learned counsel of the accused also pointed out that the account of the incident as given by PW-1, PW-2 and PW-3 is not consistent, but the same is different from each other. For example, he pointed out that according to PW-1 as stated by him that in first instance Khargi and Buddhu gave beating to his father and gave 2 or 3 blows each and thereafter his father fell down and after that no beating was given to him. But according to PW-3 as stated by him that the accused in the first instance gave beating to deceased Jhamman Singh and to PW-3 Liladhar. But according to PW-2 Kishan Lal as stated by him in the first instance deceased Jhamman Singh was given beating and thereafter Kallu Singh PW-1 and Liladhar PW-3 were beaten and then he received gun shot injures. But according to PW-2 Kishan Lal as stated by him in the first instance deceased Jhamman Singh was given beating and thereafter Kallu Singh PW-1 and Liladhar PW-3 were beaten and then he received gun shot injures. If the above statements of PW-1, PW-2 and PW-3 are read in isolation, then there appears to be some discrepancy in the accounts given by each of them. E- It is also a fact as discussed above that prosecution has not examined independent witnesses of disclosure statement and recovery of accused Dhani Ram and Khargi, namely, Sri Ramesh Chandra Sharma and doctor Shata Nand Batt. Thus, in view of what has been discussed above, it is apparent that the prosecution has failed to prove its case beyond reasonable doubt against the surviving appellants, namely, Hari Shanker and Buddhu. Hence, this Court deems it fit to extend the benefit of doubt to the aforesaid two appellants and accordingly, the conviction and sentence as imposed by the Court below is liable to be set aside and is hereby set aside in so far as it relates to appellant Nos. 3 and 4. The appeal is, accordingly, allowed. The appellant Nos. 3 and 4, namely, Hari Shanker and Buddhu are acquitted of the charges levelled against them. The appellant Nos. 3 and 4, namely, Hari Shanker and Buddhu are on bail their bail bond are cancelled and their sureties are discharged. They need not surrender before the Court. The copy of the order be communicated to the CJM concerned for onward compliance. —————