Per Virender Singh, J. 1. Appellants (hereinafter to be referred to as accused) Sarain Singh, Vijay Singh, Jagtar Singh alias Jagga, Ravinder Singh alias Peter, Narotam Singh alias Bilu, Kehar Singh, Lal Singh, Omkar Singh (now dead), Vakil Singh (now dead) ,Pardeep Singh alias Dodho, Manohar Singh alias Tooti along with Sangroo Singh alias Makhnoo (proceeded under section 512 CrPC,) were booked in case FIR No.31/1993 registered in Police Station, Kana Chak, Jammu for the offences punishable under sections 302, 307, 148, 149, 201 RPC and 3/25 & 4/27 of Arms Act. Vide impugned judgment rendered by learned Sessions Judge, Jammu dated 30.11.1996/07.12.1996, they stand convicted and sentenced as under: Accused Sarain Singh for the offences under sections 302/307/148/149 RPC & 3/25 of Arms Act. Accused Jagtar Singh for the offences under sections 302/307/148/149/201 RPC. Accused Ravinder Singh for the offences under sections 302/307/148/149 and 7/25 of Arms Act. Accused Vijay Singh, Narotam Singh, Kehar Singh, Lal Singh, Omkar Singh, Vakil Singh, Pardeep Singh and Manohar Singh for the offences under sections 302/307/148/149 RPC. Life imprisonment for the offences punishable under sections 302 read with 149 RPC and a fine of Rs. l0,000/- each, in default thereof, to further undergo 3 months simple imprisonment. Further sentenced to undergo rigorous imprisonment for 5 years for the offence punishable under section 307 RPC and a fine of Rs.5000/- each, in default thereof, to further undergo 3 months simple imprisonment. Accused Sarain Singh has further been sentenced to 1 year rigorous imprisonment for the offence punishable under section 3/25 Arms Act and a fine of Rs.500/-, in default thereof, to further suffer 2 months simple imprisonment. Accused Ravinder Singh has been sentenced to 1 year rigorous imprisonment for the offence under section 4/25 Arms Act and a fine of Rs.500/- in default thereof, to suffer 2 months simple imprisonment. Accused Jagtar Singh alias Jagga is sentenced to 3 years rigorous imprisonment for the offence under section 201 RPC and a fine of Rs.500/-, in default thereof, to further suffer 2 months simple imprisonment. All the sentences are ordered to run concurrently. However, no separate sentence has been awarded for the conviction provided under section 148 RPC. Hence, Cr. Appeal No. 18/1996 and Confirmation No.52/1996 in terms of section 374 CrPC (State Code). 2. All the sentences are ordered to run concurrently. However, no separate sentence has been awarded for the conviction provided under section 148 RPC. Hence, Cr. Appeal No. 18/1996 and Confirmation No.52/1996 in terms of section 374 CrPC (State Code). 2. It needs to be mentioned here that during the pendency of the instant appeal, accused Omkar Singh and Vakil Singh died their natural death, reference whereof is made in our order dated 3rd of May, 2006. The instant appeal, thus, survives qua accused Sarain Singh, Vijay Singh, Jagtar Singh, Ravinder Singh, Narotam Singh, Kehar Singh, Lal Singh, Pardeep Singh and Manohar Singh. All the 9 accused are on bail as their substantive sentences stand suspended during the pendency of the appeal. 3. Deceased in this case is one Kuldeep Singh son of Basant Singh. Date, time and place of occurrence is 10.02.1993, at 7.30 pm near Marjali Bus Stand FIR is lodged at 10 pm on the same day by PW Mohan Singh in Police Station Kanachak. Distance between the place of occurrence and the concerned Police Station is approximately 12 kms. Special report was received by the Illaqa Magistrate (CJM Jammu) on 12.02.1993. 4. The case set up by the prosecution as one finds from the investigation carried out in the present case and detailed in the report under section 173 CrPC is that on 10.02.1993, PW Sikander Singh son of Mohan Singh, an Army personnel, was coming on his annual leave from Hyderabad and boarded the Bus from Jammu for proceeding to his village Marjali. When the said Bus reached Kangrel at about 7.15 pm, accused Sarain Singh stopped the Bus and accused Jagtar Singh entered the Bus and enquired from the passengers if anybody resident of Marjali was travelling in the Bus, upon which, Sikander Singh said that he was going to Marjali. Accused Jagtar Singh thereafter got down from the Bus and the Bus proceeded towards Marjali. Accused Sarain Singh and Jagtar Singh accompanied by accused Ravinder Singh also proceeded towards Marjali on their motorcycle which was ahead of the Bus. Accused Sarain Singh stopped the motorcycle where Sikander Singh had to get down from the Bus. Along with Sikander Singh, PW Parkash Singh was also travelling in the same Bus. Accused Sarain Singh and Jagtar Singh accompanied by accused Ravinder Singh also proceeded towards Marjali on their motorcycle which was ahead of the Bus. Accused Sarain Singh stopped the motorcycle where Sikander Singh had to get down from the Bus. Along with Sikander Singh, PW Parkash Singh was also travelling in the same Bus. As soon as Sikander Singh and Parkash Singh alighted from the Bus, accused Jagtar Singh caught hold of Sikander Singh from his neck and pushed him away. Thereafter, accused Sarain Singh, who was armed with a 12 bore gun (at most of the places in evidence, it is referred to a rifle), fired a shot at Sikander Singh which hit him on the back of his head and he fell down. Accused Jagtar Singh and Sarain Singh then inflicted kicks to Sikander Singh and accused Sarain Singh also gave rifle butt blow on his face. Parkash Singh who was travelling with Sikander Singh and had alighted from the Bus along with him, ran towards the house of Sikander Singh, shouting in a loud voice, upon which, Kuldeep Singh, Chanchal Singh, Jankar Singh (known as Chaggar Singh also) and Jagdev Singh rushed to the spot. Other accused who were also armed with lethal weapons had also reached the place of occurrence. Basant Singh, his wife Shibo Devi, daughter Bimla Devi had also reached there. Kuldip Singh enquired from Sikander Singh as to what had happened and he narrated the whole episode to him. When Kuldeep Singh was crossing the road, accused Omkar Singh, who was having a torch in his hand, threw torch light on Kuldeep Singh, upon which, accused Sarain Singh fired a shot at him from his 12 bore gun, as a result of which, Kuldeep Singh received pellet injuries on his chest and fell down and died at the spot. Certain other male persons and ladies who had also reached the spot received injuries as the accused started indiscriminate firing upon the complainant side. A sum of Rs.10,000/- was also allegedly snatched from Sikander Singh by the accused (not found to be correct during investigation). The motive projected is that the accused side was having animosity with the complainant side with regard to some land dispute. 5. A sum of Rs.10,000/- was also allegedly snatched from Sikander Singh by the accused (not found to be correct during investigation). The motive projected is that the accused side was having animosity with the complainant side with regard to some land dispute. 5. A case FIR No. 31/1993 came to be registered in Police Station Kana Chak, Jammu for the offences punishable under sections 302/307/148/149/201 RPC and 3/25 and 4/25 Arms Act and the police swung into action. During investigation, it seized and sealed 7 empty and 4 live cartridges of 12 bore rifle from the place of occurrence in the presence of Jageer Singh and Mohan Singh. One trigger, barrel guard prepared from Sewacy Sain Gun Works Jammu, one butt rifle and one cartridge No. 4795 were also recovered from the place of occurrence and seized in presence of aforesaid Jageer Singh and Mohan Singh. Blood stained clay and plain clay were also sealed and seized in a match box in the presence of aforesaid two witnesses. The Investigating Agency also seized motor cycle (black in colour), without any registration number, having Engine No. 6D 9619 and Chasis No. 1R397377 in the presence of Pritam Singh and Jageer Singh. 6. On arrest of accused Omkar Singh, he suffered a disclosure statement in the presence of Jageer Singh and Mohan Singh that he had kept one iron axe (Tabar) with handle in his residential house along with a torch, pursuant thereto, the recovery was effected. Accused Vakil Singh after his arrest also suffered a disclosure statement in the presence of Jageer Singh about the concealment of one iron axe (Tabar) without handle behind the bushes in his land and got the same recovered. Accused Kehar Singh also suffered a disclosure statement in the presence of Jageer Singh about the concealment of stick (Lathi) inside his house and got it recovered. Similarly, accused Ravinder Singh also made a disclosure statement in the presence of Mohan Singh and Jageer Singh about the concealment of a Toka with handle in the bushes on the side of the road and got the same recovered. 7. There are two disclosure statements made by accused Sarain Singh in the presence of Jageer Singh and Mohan Singh. The first disclosure statement is with regard to throwing of a gun in the well which was subsequently recovered in the presence of aforesaid two witnesses. 7. There are two disclosure statements made by accused Sarain Singh in the presence of Jageer Singh and Mohan Singh. The first disclosure statement is with regard to throwing of a gun in the well which was subsequently recovered in the presence of aforesaid two witnesses. The second disclosure statement is with regard to another gun which he had brought from the house of Raj Kumari and used on the day of occurrence and concealed it in the bushes which was also subsequently recovered in the presence of aforesaid two witnesses. 8. The police recorded the statements of witnesses who had seen the occurrence and otherwise relevant to the present case and collected the medical evidence also. 9. Accused Pardeep Singh, Manohar Singh and Sangroo were not arrested during investigation, as such, were proceeded under section 512 CrPC. However, accused Pardeep Singh and Manohar Singh were subsequently produced before the trial Court and charged with their co-accused, whereas accused Sangroo Singh remained absconding and was not traceable till the trial culminated into the conviction of all the remaining accused. Prosecution evidence in brief: 10. PW Mohan Singh happens to be an eye witness to the occurrence has stated that at about 7.30 pm on 10.02.1993, when he was sitting in his house at Bhalwal heard the sound of fire and looked towards the side where from the sound of fire came and found Parkash Singh shouting that Sakinder Singh has been killed. On this, he accompanied by Kuldip Singh, Chanchal Singh, Jagdev Singh and Jhanda Singh rushed towards that side and on reaching there, saw Sakinder Singh lying on the ground in the pool of blood. Accused Sarain Singh, Vijay Singh, Lal Singh, Ravinder Singh alias Peter, Kehar Singh, Vakil Singh, Sangroo Singh alias Makhnoo, Pardeep Singh alias Dodho, Narotam Singh alias Bilu son of Ram Saran and Omkar Singh were standing near the place of occurrence. When Kuldip Singh reached the spot, accused Sarain Singh fired a shot through his 12 bore rifle which hit Kuldip Singh on his chest and he fell down on the ground and succumbed to the injuries and thereafter accused Sarain Singh had started indiscriminate firing. The accused possessed rifles, revolvers, lathis, swords and axes etc., at that time. This firing continued for about 45 minutes and the accused did not allow them to reach near the dead body. The accused possessed rifles, revolvers, lathis, swords and axes etc., at that time. This firing continued for about 45 minutes and the accused did not allow them to reach near the dead body. He further stated that as many as 7 persons suffered injuries. He then stated that accused Pardeep Singh alias Dodho gave him a blow with an axe as a result of which he suffered injury on his middle finger of his right hand. Thereafter, the accused fled away from the place of occurrence. He accompanied by Chagar Singh proceeded towards Police Station, Kana Chak to lodge report about the incident. He admitted the contents of the report to be true and correct. He also identified his signatures on it which is marked as EXPW MS. The police came on spot next day and seized 7 empty and 4 live rounds and a barrel of rifle from the place of occurrence. The police also seized a blood stained clay and seizure memos EXPWMS/1, EXPWMS/2 and EXPWMS/3 respectively were prepared which bore his signatures and are correct. The plain earth was also seized vide seizure memo EXPW MS/4. Thereafter, he went to the police station on 02.03.1993 where accused Kehar Singh and Vakil Singh were taken out by the police and interrogated, upon which, accused Vakil Singh disclosed that he had thrown the axe into the bushes and he could show them there. Accused Kehar Singh also disclosed to the police in his presence that a bamboo stick had been thrown by him in the court yard and could be got recovered. Similarly, accused Ravinder Singh alias Peter made a disclosure statement in his presence to have thrown the Toka in the bushes on the road side and could get it recovered. He (Ravinder Singh) further made a disclosure statement that he had thrown the rifle into the well and the second rifle he had thrown in the fencing of the court yard of his house. This witness further stated that accused Omkar Singh also made a disclosure statement in his presence about the axe and torch which he had kept behind the box and could get the same recovered. All the statements bear his signatures. The seizure memos with regard to the recoveries effected in his presence also bear his signatures. The wearing apparels of Kuldip Singh were also seized in his presence vide separate seizure memo. All the statements bear his signatures. The seizure memos with regard to the recoveries effected in his presence also bear his signatures. The wearing apparels of Kuldip Singh were also seized in his presence vide separate seizure memo. The receipt of the dead body prepared by the police also bears his signatures. In his cross examination, PW Mohan Singh denied that accused Jagtar Singh received any pellet injury as he had not seen him in an injured condition. He also denied of any injury received by accused Vijay Singh and Lal Sing at the time of occurrence. He was, however, categoric in stating that neither he nor any of his companions were having any gun or any other weapon, therefore, did not cause injury to the accused. He further stated that he could not say as to whether accused Jagtar Singh, Vijay Singh and Lal Singh remained in the hospital or not as he had seen them first time in the Court after the occurrence. This witness further stated that near the place of occurrence, there are 8/9 houses in that locality and all those houses including the house of accused persons belong to Rajput community. He admitted that all the witnesses cited in the case are from their houses and relations. This witness further stated that when they heard the sound of fire, there was still some light as the sun had set only half an hour earlier. He is categoric in stating that there was no boundary wall of his house nor any construction in between his house and the place of occurrence was at the distance of about 150 yards. He further stated that when they were about to lift Sikander Singh who was lying on the ground, accused Sarain Singh opened fire who was already standing at the place of occurrence and as it was not dark and they could see and that one electric bulb was also there which was on and they could see everything in the light as well. This witness further stated that accused Sarain Singh fired at Kuldip Singh from his single barrel rifle from a distance of about 25 yards and the other accused namely Lal Singh, Vijay Singh, Jagtar Singh and Sangroo singh were at a short distance towards the western side and they also started firing at random which continued for about 5 minutes. This witness further stated that accused Sarain Singh fired at Kuldip Singh from his single barrel rifle from a distance of about 25 yards and the other accused namely Lal Singh, Vijay Singh, Jagtar Singh and Sangroo singh were at a short distance towards the western side and they also started firing at random which continued for about 5 minutes. He stated that they took shelter in the house of Baisakhi Ram and Ram Dass who were not at home and had fled away on hearing the sound of firing. He further stated that there are many houses near the place of occurrence apart from their houses and those of accused, but none had come out of their houses on the spot till the police arrived there. He further stated that nobody from their family had come out of the house of Baisakhi Ram and Ram Dass till the firing stopped and the accused fled away from the scene of occurrence. 11. PW Chaggar Singh stated that on the day of occurrence, he heard the noise coming from the place of occurrence and proceeded towards that side. On reaching there, he saw that PWs Jagdev Singh, Basant Singh Chanchal Singh, Shibo Devi, Bimla Devi and Sikander Singh sustained gunshot injuries. The dead body of Kuldip Singh was lying on the spot and accused were not present there. He also accompanied PW Mohan Singh to the police station Kanachak who lodged the report in the said Police Station. He further stated that the facts about the occurrence were known to Mohan Singh and he narrated about it. He further stated that the police also seized 7 cartridges and 4 live cartridges from the place of occurrence vide seizure memo which bears his signatures. He also talks of lifting of plain and blood stained earth from the place of occurrence vide different seizure memos. He then talks of seizing of rifle butt with trigger and a broken barrel vide different seizure memos which also bear his signatures. He is also an attesting witness to the disclosure statements of accused Vakil Singh, Kehar Singh, Ravinder Singh and Sarain Singh, and the recoveries effected thereupon. He is also a witness to the recovery of a motor cycle by the police from the place of occurrence. He is also an attesting witness to the disclosure statements of accused Vakil Singh, Kehar Singh, Ravinder Singh and Sarain Singh, and the recoveries effected thereupon. He is also a witness to the recovery of a motor cycle by the police from the place of occurrence. In his cross examination, this witness stated that his house is located at a distance of 200 yards from the place of occurrence and there was no building in between and stated that there are some residential houses of cobblers near the place of occurrence, but none of them had come on the spot. He then stated that PW Mohan Singh is his cousin brother and he had accompanied him to police station to enquire about the case when statements of accused Kehar Singh and Vakil Singh were recovered in his presence. He stated that he again went to the police station along with PW Mohan Singh and at that time, disclosure statement of accused Sarain Singh and Ravinder Singh were recorded in their presence. He also stated that a rifle which was recovered at the instance of accused Sarain Singh was in deep water. 12. PW Basant Singh is the father of the deceased Kuldip Singh and stated that he was owner in possession of land containing khasra No. 1272 at Marjali and the accused, who are also resident of the same village, tried to usurp the possession of said land on 16.01.1993 when he had cultivated wheat crop in it. Accused ploughed his land in respect of which he had lodged report with the police station Kahnachak in which challan was presented against the accused in the Court. He then stated that on the evening of 10.02.1993, he was sitting in his house, when he and his family members heard the noise upon which his family members proceeded towards the side of occurrence followed by PW Jagdev Singh and when they did not come back, he also proceeded towards that side and saw that his wife was crying and on his asking, she told that her son Kuldip Singh had died after being hit by a gunshot and that accused Sarain Singh had fired a shot from his rifle at him. He further stated that he saw accused Sarain Singh, Lal Singh, Jagtar Singh and Vijay Singh with 12 bore rifle standing on the spot and that accused Lal Singh fired a shot at him which hit him on his left leg and thereafter the other accused also opened firing as a result of which his wife Mst. Shibo, daughter Bimla, son Jagdev Singh and PW Chanchal Singh sustained injuries. This witness further stated that accused Omkar Singh was having a torch and Tabar in his hand, accused Vakil Singh was armed with an axe and other accused were having lathies in their hands. He then stated that accused had been firing indiscriminately for 45 minutes and they took shelter in the house of one Ram Dass which was nearby and thereafter the accused stopped the firing and fled away. He then talks of removal of the injured persons to the hospital in the truck by one Raghubir Singh. In his cross examination, this witness stated that he did not remember whether accused Jagtar Singh had received any gunshot injury. However, he was sure that accused Vijay Singh and Lal Singh were not at all injured. He then stated that when he reached the spot, PWs Mohan Singh and Chanchal Singh were already present there besides his own family members. He specifically stated that when he reached the spot his wife told him that Kuldip Singh was gunned down by accused Sarain Singh. He also stated that accused Sarain Singh had not fired a shot at his son Kuldip Singh in his presence. This witness further stated that there was a house of one Baisakhi Ram near the place of occurrence where electric bulb was on. This witness then stated that when he reached the spot, he did not find anybody from the locality present there. However, he admitted that there are houses of Bikru, Nanku and Kirpa near the place of occurrence. 13. PW Chanchal Singh, who is also a witness to the occurrence, stated that on the day of occurrence at about 7/7.30 pm, he heard the noise of gunshot from a particular side and saw that PW Parkash Singh was running towards his house and told him that accused Sarain Singh had fired a gun shot at Sikander Singh, as a result of which, Sikander Singh had fell down in a `khud' near the road side. On hearing this, he accompanied by Kuldip Singh rushed towards that side followed by PW Mohan Singh. However, PW Parkash Singh did not return with them. On reaching the spot, PW Mohan Singh tried to cover the wound of PW Sikander Singh with a towel and at that time, accused Sarain Singh fired a shot from his gun and its pellets hit him and Kuldip Singh. He then stated that accused Sarain Singh thereafter fired another shot which hit Kuldip Singh and he fell down. Accused Jagtar Singh was also with accused Sarain Singh at that time and was having a rifle. This witness further stated that accused Jagtar and Sarain alongwith 7/8 accused came on spot where the dead body of deceased Kuldip Singh was lying. At that time, accused Sarain Singh, Lal Singh, Vijay Singh and Jagtar Singh were having rifles and others were carrying a lathies in their hands and in the mean time, PW Shibo Devi, mother of Kuldip Singh, Bimla Devi, sister of Kuldip Singh, PWs Jagdev Singh and Basant Singh also reached the place of occurrence and after seeing them, accused again started firing and caused them injuries. This witness is very categoric in stating that he had suffered a gunshot injuries. He further stated that apart from accused Sarain Singh, Vijay Singh and Lal Singh, other accused, who were accompanying them, were Omkar Singh, Vakil Singh, Makhnu and Dodu. In his cross examination, this witness stated that he had informed the police that PW Parkash Singh had told him that accused Sarain Singh had fired a gun shot at PW Sikander Singh. He, however, did not narrate to the police that PW Mohan Singh tried to cover the head of Sikander Singh with the towel and accused Sarain Singh again started firing. He stated that when he suffered injuries, accused Sarain Singh was standing at a distance of 15 yards from him. He further stated that he did not know about any gunshot and injury received by the accused Jagtar Singh nor did he see him in the hospital. He also stated that police came to him in the hospital and enquired about the occurrence and he narrated the entire occurrence. 14. He further stated that he did not know about any gunshot and injury received by the accused Jagtar Singh nor did he see him in the hospital. He also stated that police came to him in the hospital and enquired about the occurrence and he narrated the entire occurrence. 14. PW Jagdev Singh stated that at about 7.30 pm he heard the noise of gunshot and he along with PWs Chanchal Singh and Jankar Singh (Chaggar Singh) rushed towards that side and saw that Kuldip Singh was also going towards that side and when they reached near the road, accused Sarain Singh fired a shot at Kuldip Singh with his 12 bore gun which hit the chest of Kuldip Singh and he fell down. He further stated that he rushed towards his brother and tried to lift him, but accused Vijay Singh fired at him with his 12 bore gun, consequently some pellets hit him on his hand and arm. He further stated that thereafter accused Vijay Singh told accused Jagtar Singh to fire a shot as he had escaped earlier shot, upon which, accused Jagtar Singh fired another shot injuring his leg. This witness stated that accused Kehar Singh, Lal Singh, Vakil Singh, Sukhdev Singh, Omkar Singh, Peter Singh and Manohar Singh were also there. He then stated that after receiving the injuries at the hands of accused Jagtar Singh, he fell down and became unconscious and regained consciousness in the hospital where he remained admitted for 14 days and his statement was recorded by the police after he was discharged from the hospital. In his cross examination, this witness is specific in stating that he had told the police that accused Sarain Singh had injured Kuldip Singh with gunshot and that it was dark at that time, but there was an electric bulb which was emitting light. He also stated that his house is at the distance of 300 meters from the place of occurrence and PW Chanchal Singh and Jankar Singh were in their respective house and accompanied him to the place of occurrence. He is specific in stating that when he received the pellets injury, he was hardly 10 meters away from Kuldip Singh when he was hit by gunshot and when he reached near Kuldip Singh and in the 2nd minute, accused Jagtar Singh fired another shot at him causing him injury. He is specific in stating that when he received the pellets injury, he was hardly 10 meters away from Kuldip Singh when he was hit by gunshot and when he reached near Kuldip Singh and in the 2nd minute, accused Jagtar Singh fired another shot at him causing him injury. This witness specifically denied when suggested that accused Vijay Singh and Jagtar Singh were injured on the spot. 15. PW Shibo Devi, is the mother of deceased Kuldip Singh. She stated that she was sitting in the compound of her house when learnt that PW Sikander Singh has been killed, her son Kuldip Singh, PWs Mohan Singh, Jagdev Singh and Chanchal Singh rushed towards the side from where the noise was coming and she accompanied by her daughter Bimla also followed them and as soon as they reached the spot, she saw her son Kuldip Singh lying on the ground with gunshot injury and had died on the spot. When she bent down to see her son, accused Sarain Singh fired a gun shot injuring her also and when she turned to look at him, accused Sarain Singh fired another shot, as a result of which, she received injuries on her head and forehead. She stated that her husband had also received injuries in this occurrence. She further stated that accused Sarain Singh, Vijay Singh, Lal Singh and Jagtar Singh were armed with rifles and accused Makhnu with pistol and other accused namely Dodu, Tuti, Vakil Singh, Kehar Singh were armed with lathies and were standing there. She then stated that the firing continued for 30/45 minutes and thereafter, the accused fled away from the spot and the injured were removed to the hospital. In her cross examination, this witness stated that it was PW Parkash Singh, who was raising the noise that Sikander Singh has been injured. She further stated that PW Sikander Singh was lying in a ditch in an injured condition and after reaching the spot, accused Sarain Singh had fired 3 shots, whereas accused Vijay Singh, Jagtar Singh and Lal Singh had resorted to indiscriminate firing. She denied, to have seen the accused Jagtar Singh, Vijay Singh and Lal Singh in an injured condition. She is specific in stating that none of their side (complainant side) was carrying rifles. 16. PW Bimla Devi is the real sister of Kuldip Singh (dead). She denied, to have seen the accused Jagtar Singh, Vijay Singh and Lal Singh in an injured condition. She is specific in stating that none of their side (complainant side) was carrying rifles. 16. PW Bimla Devi is the real sister of Kuldip Singh (dead). She stated that after hearing sound of gun fire, her brothers Kuldip Singh and Jagdev Singh proceeded towards that direction. She and her mother (Shibo Devi) reached the spot and saw Sakinder Singh lying on the road and accused Sarain Singh, Jagtar Singh, Vijay Singh and Vakil Singh were standing there having rifles in their hands. She further stated that the accused Omkar Singh put torch light on Kuildip Singh and accused Sarain Singh fired a shot at him which hit Kuldip Singh and he fell down on the road. She stated that she went behind a Kotha in order to save herself and thereafter indiscriminate firing started by Sarain Singh and other accused in which she also suffered pellet injuries. In her cross examination, this witness stated that the place where Sakinder Singh was lying was about 200 yards from their house and that the accused had surrounded Sakinder Singh. She further stated that when they reached the spot, Kuldip Singh and Jagdev Singh were standing near Sakinder Singh and when they went near Sakinder Singh, they found him in unconscious. She then stated that accused Sarain Singh fired upon them after 5 minutes of their reaching the spot. She is categoric in stating that when Sarain Singh fired a shot at Kuldip Singh, Sarain Singh was at a distance of 4 steps. She stated that Kuldip Singh received injuries with the gun shot and what happened thereafter, she did not know. 17. PW Sikander Singh is an another main witness of the prosecution and he is one who was initially assaulted. He stated that he had come on annual leave from Army and was on his way towards his house and boarded the Bus from Jammu for his home at Marjali and when Bus reached near Kangrel at 7.15 pm, accused Sarain Singh stopped the Bus and accused Jagtar Singh came inside the Bus and enquired, if any person of Marjali was travelling in the Bus, upon which, he told that he was proceeding towards Marjali. He further stated that thereafter accused Jagtar Singh got down from the Bus and Bus proceeded towards Marjali. He further stated that accused Sarain Singh and Jagtar Singh accompanied by Ravinder Singh were on their Motor cycle and they proceeded towards. Marjali and then Sarain Singh stopped the motor cycle at the place where he and PW Parkash Singh had to get down from the Bus and when both of them got down, accused Jagtar Singh caught hold of him from his neck and pushed him away and accused Sarain Singh fired at him from his 12 bore gun which hit him at the back of his head, as a result of which, he fell down in a ditch and thereafter accused Jagtar Singh and Sarain Singh hit him with kicks and rifle butts and accused Jagtar Singh also gave a rifle blow on his mouth. He further stated that accused Sarain Singh asked accused Jagtar Singh to take out the entire money from his pocket and then accused Jagtar Singh hit him with his rifle butt and took Rs.10,000/- out of his pocket. This witness further stated that PW Parkash Singh who was accompanying him went towards his house shouting about the injury received by him whereupon Kuldip Singh, Chanchal Singh, Jankar Singh ran towards, the place of occurrence from the side of their house and in the mean while, accused Lal Singh, Vijay Singh Vakil Singh Kehar Singh, Omkar Singh, Talo (Narotam Singh alias Biloo) and Makhnu also arrived at the scene of occurrence. This witness further stated that accused Lal Singh and Vijay Singh were carrying rifles, whereas accused Vakil Singh, Omkar Singh and Kehar Singh were armed with Dandas, Makhnu with pistol and Talo (Narotam Singh) with an axe (Tabar). He further stated that accused Omkar Singh was also carrying torch with him at that time. This witness then stated that he narrated the whole episode to Kuldip Singh when the later came to him and enquired about the incident and when Kuldip Singh came on the road, accused Omkar Singh put torch light on him and accused Sarain Singh fired a shot from his gun which hit him in his chest and he died at the spot. Thereafter all the accused started indiscriminate firing, as a result of which, PW Basant Singh, Bimla Devi and Jagdev Singh sustained injuries. Thereafter all the accused started indiscriminate firing, as a result of which, PW Basant Singh, Bimla Devi and Jagdev Singh sustained injuries. He further stated that he remained hospitalized initially in Medical Hospital Satwari and then Command Hospital Udhampur. In his cross examination, this witness stated that he had come on annual leave in connection with marriage of his brother-in-law and after purchasing certain household goods boarded the Bus from Jammu and that PW Parkash Singh had met with him in the Bus incidentally who otherwise happens to be his cousin brother. He then stated that he knew the accused Sarain Singh and Jagtar Singh as they were from his village only. This witness further stated that it had become little dark by that time when Bus reached Kangrel. He also stated that, but for him and PW Parkash Singh, none else had got down from the Bus at Marjali and accused Sarain Singh fired at him in the presence of PW Parkash Singh and then he started shouting and ran towards his house. When confronted from his previous statement recorded under section 161 CrPC, he stated that he had narrated to the police that accused Sarain Singh had fired at him with rifle which hit him at the back of his head and he fell in the ditch but he did not know why it was not recorded in the statement under section 161 CrPC. He also stated that he had told the police that accused had beaten him with kicks and rifle butts but did not know as to why it was not recorded in his statement recorded under section 161 CrPC. This witness then stated that accused had left him because according to them he had died, but he got up after the accused left the place and proceeded towards road. This witness was also confronted with his previous statement recorded under section 161 CrPC with regard to the fact that it was accused Sarain Singh and Jagtar Singh who proceeded towards the road and Kuldip Singh enquired from him about the occurrence as this fact was not there in his statement recorded by the police. This witness further stated that accused Sarain Singh fired at Kuldip Singh while the later was standing about 2 steps away from him on the road and were face to face with each other. This witness further stated that accused Sarain Singh fired at Kuldip Singh while the later was standing about 2 steps away from him on the road and were face to face with each other. He is categoric in stating that accused had divided themselves into two parties and started firing indiscriminately. He also stated that PWs Basant Singh, Bimla Devi and Jagdev Singh arrived at the place of occurrence within 2-4 seconds after Kuldip Singh sustained injuries, but no one from the village came near the place of occurrence on account of heavy firing from the accused' side. He is specific in stating that none of the injured from complainant side were carrying any weapon with them at the time of occurrence and none of the accused had suffered injury in his presence. 18. PW Prem Singh is the attesting witness of the seizure memos vide which dead body of deceased Kuldip Singh was seized by the police. Motor cycle was also seized in his presence vide separate seizure memo to which he is the attesting witness. 19. PW Vakil Singh is the attesting witness to the seizure memo of blood stained undershirt, pent, bottle containing blood, 2 pellets which were sealed on the spot which bears his signatures and was kept on the spurdnama of PW Ranbir Singh vide separate memo. 20. PW Ranbir Singh affirmed that the seal was kept on his spurdnama by the police and bears his signatures. He stated that deceased Kuldip Singh was his maternal uncle's son. He stated that on the day of occurrence when he returned home, he went to the spot and found that the dead body of Kuldip Singh was lying on the road side along with other persons in an injured condition. 21. PW Dr. Rajinder Parshad conducted the autopsy on the dead body of deceased Kuldip Singh on 11.02.1993 and observed the following injuries: 1. Multiple pellet injuries measuring from 0.3 cms to `0.1 cms over the front of body extending form forehead to supra public region and from anterior aspect of right shoulder to right upper limb to the left shoulder and left upper limb measuring an area of 3"x 15.5." Internal injuries 2. Thorax, interior aspect of the chest having multiple pellet injuries passing through the interior chest well. Pleura on both sides punctured under pellet injuries. Plural cavity contained about 2 litres of blood. Thorax, interior aspect of the chest having multiple pellet injuries passing through the interior chest well. Pleura on both sides punctured under pellet injuries. Plural cavity contained about 2 litres of blood. Lungs 3. Right lung punctured at places and bears and through and through injuries by pellet. Left Lung 4. Left lung also bear pellet injury which passed through and through the lungs substance and lodged in posterior chest well. Pellets taken out and handed over to the concerned I.O in a sealed bottle . Interior abdomen 5. Interior abdominal wall bears pellet injuries peritoneal cavity contained about 1 litre of blood. Liver 6. Liver had pellet injuries two in number with entry would over anterior surface of liver and exist wound on interior surface. Stomach and intestines 7. Stomach contained small semi digested food material small intestines and omentum, bears pellet injuries. He has proved the PMR as EXPW RP. 22. As per opinion of this witness, the death had occurred due to haemorrhagic shock as a result of multiple injuries caused by discharge of pellet from a smooth bore fire and time that had elapsed between death and post mortem was at about 17 hours. In his cross examination, this witness stated that he could not tell the distance of the assailant and the victim at the time of firing. He stated that assailant and the victim were face to face at the time of assault. According to him, the multiple injuries were not countable as they were so numerous and so closed to each other, therefore, even distance could not be recorded. This witness further stated that the pellet injuries should have been even 100 and were possible by a single fire. He, however, had not recorded the entry and exit wounds. 23. PW Dr. B.L. Pandita is a Radiologist and while posting in Government Medical College Hospital, Jammu examined the X-ray films of Basant Singh, Jagdev Singh and Chanchal Singh. On examination of X-ray films of Basant Singh, he noticed that there were multiple radio opaque shadows of metallic density in the soft tissue and no bone injury was seen. He also examined x-ray films of Jagdev Singh and found multiple opaque shadows of metallic density throughout the soft tissue of parts. He also noticed fracture of femur bone. On examination of X-ray films of Basant Singh, he noticed that there were multiple radio opaque shadows of metallic density in the soft tissue and no bone injury was seen. He also examined x-ray films of Jagdev Singh and found multiple opaque shadows of metallic density throughout the soft tissue of parts. He also noticed fracture of femur bone. On examination of x-ray films of injured Chanchal Singh, he advised for repeating lateral view and thereafter x-ray films were not shown to him. This witness has proved the certificates signed by him with regard to the aforesaid three injured persons. 24. PW Dr. Suresh Bhagat examined the injured Chanchal Singh in Causality of Government Medical College Hospital Jammu on 10.02.1993 and found the following injuries: 1. Superficial lacerated wound on the right hypochondrium 4 cmx1 cm red in colour. 2. Multiple bruises red in colour on the abdomen. In his opinion, injuries 1 and 2 were simple in nature and caused by blunt object. He proved the certificates prepared by him in this regard. This witness also examined Jagdev Singh on the same day and found the following injuries on his person: 1. Multiple lacerated punctured wound 4 cm on the right thigh lateral margin bleeding. 2. Swelling on the lateral upper side of the thigh. 3. Multiple lacerated punctured wound 4 cm on the right fore arm bleeding. MLC skigram No.2602 dated 10.02.1993 showed multiple radio opaque shadows of metallic density. Fracture of greater torchanter at femur. In his opinion, injuries 1 & 3 were simple in nature, whereas injury 2 was grievous in nature. Injuries 1 and 3 were caused by the discharge of pellets from the smooth bore fire arm, whereas injury No.2 was caused by the blunt object. This witness also proved the certificate prepared by him in this regard. He also medically examined the injured Basant Singh and observed the following injuries on his person: Multiple lacerated punctured wound on the interior and medial of left thigh 4 cm in size bleeding. In his opinion, this injury was simple nature and caused by the discharge of pellet from the smooth bore fire arm. He also proved the certificate prepared by him in this regard. In his cross examination, this witness stated that no blunt object was shown to him by the police. In his opinion, this injury was simple nature and caused by the discharge of pellet from the smooth bore fire arm. He also proved the certificate prepared by him in this regard. In his cross examination, this witness stated that no blunt object was shown to him by the police. With regard to the distance, he stated that the assailant and the victim could be at the distance of 10 feet though he could not give the exact distance. He further stated that he could not say as to whether the injury in case of Basant Singh was caused with one gun shot or more gunshot fires. According to this witness, on the same day i.e. 10.02.1993 at about 3 am one Lal Singh was brought to the hospital by Kana Chak Police and he noticed a stitched wound on the left fore arm, but he could not give the definite opinion as the wound had already been treated and stitched. He stated that the said injured was referred by PHC Kana Chak. 25. PW Dr. Rajinder Singh Jamwal, Scientific Assistant FSL Jammu stated that 8 sealed packets were received with regard to this case and these packets were forwarded by SDPO Akhnoor vide his letter No.2657-56/SDPO. All the packets contained the following articles: Packet A: a white cloth packet bearing 9 intact seals out of which one tallied with the specimen and impression forwarded by the Tehsildar Executive Magistrate, 1st Class Akhnoor. On opening it was found to contain seven 12 bore fired cartridge cases and four 12 bore live cartridges which were marked as EXF-280/93 to F-286/93 and F-287/93 to F-290/93. Packet-D: a sealed vial with intact seals bearing the impression of Dr. C.S. Gupta. On opening it was found to contain 2 metallic pellets which are collectively marked as 291/93 by him. Packet-G: a white cloth packet bearing 19 intact seals, out of which 8 seals tallied with the specimen seal impression forwarded by the Tehsildar Magistrate 1st Class, Akhnoor. On opening it was found to contain one 12 bore SBBL gun, bearing "Bharat Small Arms (P) Ltd. 13877-1981" which was further marked as EXF-292/93 by him. Packet-H: a white cloth packet bearing 19 intact seals out of which 6 tallied with the specimen seal impression. On opening it was found to contain one 12 bore SBBL gun, bearing "Bharat Small Arms (P) Ltd. 13877-1981" which was further marked as EXF-292/93 by him. Packet-H: a white cloth packet bearing 19 intact seals out of which 6 tallied with the specimen seal impression. On opening it was found to contain one 12 bore SBBL gun with its small damaged butt bearing "Sportsman Kalsee Gun Works-12043-91 which was further marked as EX.F-293/93. 26. The following is the result: 1. The 12 bore SBBL marked F- 292-93 has been found in normal condition. 2. The working of the 12 bore SBBL marked F-293-93 has been found normal although its small butt portion was found damaged. 3. The 12 bore SBBL gun fired through prior to their receipt in the laboratory. 4. The 12 bore fired cartridge cases marked F-280-93 to F-285/93 had been fired through the 12 bore SBBL gun marked F-292/93. 5. The 12 bore fired cartridge cases marked F-281/93 and F-286/93 had been fired through the 12 bore SEBL gun marked F-293/93. 6. The 12 bore fired cartridge cases marked 294/93 and F-285/93 had been fired through one and the same fire arm but not through any of the two guns marked F-292/93. 7. No definite opinion is possible with regard to 12 bore fire cartridge case marked F-282/93. 8. Two metallic pellets marked collectively as F-291-93 WERE FIRED LEAD PELLETS BELONG TO A No.(i) 12 bore cartridge. This witness proved his report in the Court. In his cross examination, he was put certain questions with regard to the procedure being adopted for the purposes of physical examination of the weapon to know whether it was in working condition or not to which he replied to all the questions. He stated that he did not find any evidence suggesting that the fire arm in this case tested by him remained under water. He further stated that in case there is record of scorching, blackening and tattooing, the distance can be fixed approximately. He after examining the post mortem report stated about the distance between the assailant and the victim. In case of injured chanchal Singh, Jagdev Singh and Basant Singh, he stated that no opinion about the distance was possible, considering the nature of the injuries received by them. 27. He after examining the post mortem report stated about the distance between the assailant and the victim. In case of injured chanchal Singh, Jagdev Singh and Basant Singh, he stated that no opinion about the distance was possible, considering the nature of the injuries received by them. 27. PW Qadir Malik is Tehsildar, Akhnoor who sealed 8 packets which were produced before him by the police. 28. PW ASI Chuni Lal under the instructions of SHO Police Station Kana Chak got conducted the post mortem on the dead body of deceased Kuldip Singh and thereafter handed it over to his heirs vide receipt which was proved by him in the Court. He also proved the injury forms of injured Chanchal Singh, Jagdev Singh and Basant Singh. 29. PW S.I Mohan Singh is one of the I.O. of the present case who stated that on 10.02.1993, PW Mohan Singh complainant along with Chaggar Singh made a verbal report in the Police Station about the occurrence whereupon formal FIR came to be registered. He proved the same in the Court. He conducted the investigation of the present case, went to the spot, prepared site plan of the occurrence and took dead body of Kuldip Singh into custody vide seizure memo. He also seized blood stained clay from the place of occurrence vide separate seizure memo. The butt of the rifle was also seized by him vide seizure memo. 7 cartridge cases and 4 live cartridges were also seized by him vide separate seizure memos. He proved all those seizure memos during the trial. He arrested the accused and thereafter accused Omkar Singh, Vakil Singh and Kehar Singh suffered disclosure statements pursuant to which accused Omkar Singh got recovered a Tabar and torch which were taken into possession vide separate memo, Kehar Singh got recovered the Lathi and an axe and Vakil Singh got recovered a Tabar which was also taken into possession vide separate seizure memo. In his cross examination, this witness stated that the report was made by PW Mohan Singh complainant which was corroborated by PW Chagar Singh. The site plan was prepared by him on11.12.1993, but not at the instance of Chaggar Sing. In his cross examination, this witness stated that the report was made by PW Mohan Singh complainant which was corroborated by PW Chagar Singh. The site plan was prepared by him on11.12.1993, but not at the instance of Chaggar Sing. He stated that when he went to the place of occurrence, he saw that the dead body of Kuldip Singh was lying in middle of the road on the road side and the site plan was prepared as per the position existing on spot. He is categoric in stating that the witnesses had not pointed out the places from where they had seen the occurrence. He further stated that the rifle butt was lying at the distance of 77 feet from the dead body and it bore the rifle number. He then stated that there was a concrete drain about 12 feet away from the dead body and one cartridge case was recovered from there and 2 cartridge cases were found lying about 95 feet away from the dead body on the road side and another cartridge case was lying at about 100 feet from the dead body. He stated that it revealed during investigation that accused Jagtar Singh, Vijay Singh and Lal Singh were also injured, but he did not enquire as to how they sustained injuries. He is categoric in stating that on the statement of accused Vijay Singh, he had registered a case against the complainant party for the offence under section 307 RPC and had prepared the injury sheet of the accused and sent to the hospital. He further stated that it never surfaced during investigation that accused Jagtar Singh suffered injury with the gun shot fired by deceased Kuldip Singh. He, however, stated that as per the statement of accused Vijay Singh, the injury to Jagtar Singh was caused with the gun shot and on this statement, a case was registered against the complainant party. He stated that he was transferred from the Police Station Kana Chak after 20 days and till he left, accused Jagtar Singh was in the hospital and that is the reason that he could not obtain the medical certificate. 30. PW S.I Shahid Parvez is another I.O of the present case. He stated that while posted SHO in Police Station Kana Chak, he arrested accused namely Sarain Singh and Ravinder Singh. 30. PW S.I Shahid Parvez is another I.O of the present case. He stated that while posted SHO in Police Station Kana Chak, he arrested accused namely Sarain Singh and Ravinder Singh. Accused Ravinder Singh alias Peter made a disclosure statement with regard to concealment of a Toka and accused Sarain Singh with regard to single barrel gun and that accused Sarain Singh also made another disclosure statement with regard to another single barrel gun. Pursuant to the disclosure statement made by accused Ravinder Singh alias Peter, a Toka got recovered on 11.04. 1993 and on the same day, accused Sarain Singh also got recovered a single barrel gun and another single barrel gun. All these weapon of offences were taken into possession vide seizure memos which were attested and proved during the trial. He stated that he also recorded the statements of witnesses under section 161 Cr.P.C. but he could not nab accused Pardeep Singh, Sangroo Singh, Makhnoo and Manohar Singh alias Tuti despite search. He also proved the final report prepared by him in terms of section 173 Cr.P.C. In his cross examination, this witness stated that the charge of extorting Rs. 10,000/- from PW Sakinder Singh was not made out during investigation. He stated that PWs Mohan Singh and Chagar Singh had come to the police station of their own when the disclosure statements of aforesaid accused were made in their presence. He further stated that he had not taken the witnesses to Marjali, but they had come on their own. According to this witness, Toka was recovered from the bushes near the road side and rifle, remained in the well from the date of occurrence till the date of its recovery and that the barrel was found with rust. He is categoric in stating that the seizure memo did not reveal that the barrel was sealed on spot. He further stated that accused Sarain Singh had made a second disclosure statement with regard to second rifle on 12.04.1993 and that seizure memo prepared in respect of second rifle also did not reveal that it was sealed on spot. 31. PW Parkash Singh who was travelling with Sikander Singh on the date of occurrence did not support the case of the prosecution so far as the main occurrence is concerned, as such, declared hostile. 31. PW Parkash Singh who was travelling with Sikander Singh on the date of occurrence did not support the case of the prosecution so far as the main occurrence is concerned, as such, declared hostile. He however stated that he proceeded towards Marjali by Bus and PW Sikander Singh was also sitting in the same Bus and as soon as the Bus reached Kangrel, accused Jagtar Singh talked to him which he did not know and then the Bus proceeded and after reaching Marjali, he and Sikander Singh got down from the Bus where a quarrel took place between Sakinder Singh and Jagtar Singh and when both of them were quarreling, he went away. He, however, denied to have seen the occurrence. 32. PW Sham Singh stated that motor cycle bearing Registration No. 669-JK02 was kept on his spurdnama by the order of City Judge Jammu dated 18.03.1993. 33. PWs Raj Kumari, Jankar Singh and Deepak Singh have been given up by the prosecution as won over. This is all about the prosecution case as put forth before the trial Court. 34. On entire incriminating evidence being put to the accused in terms of section 342 CrPC (State code), they denied the occurrence in toto. However, no defence evidence was led by them. 35. Heard Mr. P.N. Raina learned Sr. Advocate assisted by Mr. J. Hamal for all the accused except accused Kehar Singh and Lal Singh who are being represented by Mr. Abhinav Sharma Advocate. Mr. D.S. Jamwal learned Dy.AG represents the State. Entire evidence available on record has also been rescanned by us carefully. 36. Mr. Raina submitted that the complainant side is suppressing the very origin of the occurrence and that the first information report, which, undoubtedly, got registered at a belated stage, appears to be a manufactured piece of evidence being antedated. He submitted that the statement of PW Mohan Singh which is made the basis of recording of FIR in Police Station Kana Chak on 10.02.1993, would indicate that in Police Station Kana Chak injury statement of PW Mohan Singh was prepared and a constable named Anchal Kumar No. 816/J was deputed with the injury (Mohan Singh) to the hospital, but there is no injury statement of Mohan Singh available on the file, whereas the injured statements of other PWs are available. Learned counsel submitted that on the other hand PW Shibu Devi when stepped in the witness box has stated on oath that after the truck was brought by one Raghubir Singh, PWs Chaggar Singh, Mohan Singh, Jagdev Singh, Chanchal Singh and Jankar Singh went to Government Medical Hospital Jammu Raghubir Singh in that truck. According to learned counsel, in this eventuality, PW Mohan Singh could not go to the police station for lodging the FIR as projected by the prosecution and it appears that he became the author of FIR recorded subsequently after consuming considerable period for concocting the story of the choice by knitting a net in order to implicate large number of persons as accused including Sarain Singh, a Government employee who has been given a main role of killing Kuldip Singh with a gun. 37. Mr. Raina submitted that the considerable delay in sending the FIR to the Ilaqa Magistrate is also an indicative of the fact that a colourful version has been put forth by the complainant side. 38. Mr. Raina submitted that the falsity of the prosecution story is writ large from its inception. He submitted that the allegations of accused Sarain Singh, Jagtar Singh and Ravinder Singh riding a motor cycle is not investigated at all, even the Motor Cycle which is alleged to have been used is practically non- existent. According to learned counsel, PW Sham Singh who is Lumberdar of the village stated that Motor Cycle bearing registration No. 669-JK02 was released on his spurdnama by the orders of City Judge Jammu and it belonged to one Neelam Singh and the same was seized in his presence from the house of Neelam Singh, whereas neither Parkash Singh nor Sikander Singh talk of the registration number of the aforesaid motor cycle. Not only that, as per the site plan EXPW SMS at No. 2 where the Motor Cycle is shown to be standing, no registration number is indicated, even the seizure memo of the motor cycle EXPW CS-3 describes it without registration and it only mentions engine number. This all creates lots of doubt vis-a`-vis the start of the prosecution case and it appears that PW Sikander Singh is concealing more than revealing to the Court. 39. Mr. This all creates lots of doubt vis-a`-vis the start of the prosecution case and it appears that PW Sikander Singh is concealing more than revealing to the Court. 39. Mr. Raina submitted that in the first set of allegations, the story as projected is that accused Jagtar Singh had physically assaulted PW Sikander Singh with rifle after Sikander Singh was allegedly fired upon by accused Sarain Singh and when Sikander Singh was badly injured, PW Parkash Singh (since declared hostile) raised a alarm and thereafter the deceased along with others arrived at the scene of occurrence. Accused Jagtar Singh also used his rifle for assaulting PW Sikander Singh in which the barrel of the gun got broken which was destroyed by him (Jagtar Singh) for which he is additionally charged for section 201 RPC. The second set of allegations relates to the death of Kuldip Singh at the hands of accused Sarain Singh and injuries received by other members of the complainant party. Learned counsel submitted that very important feature which demolishes the prosecution story from its roots is that there is no medical evidence available on record to show that PW Sikander Singh was really assaulted much less fired upon by the accused Sarain Singh and this basic flaw makes the entire prosecution case doubtful from its very inception. 40. According to Mr. Raina, even in the second set of allegations, the prosecution case is suffering from certain basic flaws, inasmuch as the presence of certain prosecution witnesses turn out to be extremely doubtful at the scene of occurrence when Mst. Shibu Devi, Bimla Devi and Mohan Singh, claiming themselves to be injured that too having firearm injuries are not getting any support from the medical evidence. He submitted that it is a classic case of its type where witnesses receiving pellet injuries are not being medically examined. 41. Mr. Raina submitted that another important aspect which damages the case of the prosecution is that PW Parkash Singh, who was travelling with PW Sikander Singh has not supported the case of the prosecution despite in close relation with the complainant and declared hostile. He is son of real sister of mother of Sikander Singh. PW Jankar Singh has also been given up as won over. Similar is the position with regard to PW Raj Kumari. He is son of real sister of mother of Sikander Singh. PW Jankar Singh has also been given up as won over. Similar is the position with regard to PW Raj Kumari. She was an important witness as accused Sarain Singh and Vakil Singh had rushed to her house and forcibly taken the gun from her house after the gun had got broken while assaulting Sikander Singh. 42. Learned senior counsel submitted that another very important flaw which is staring at the face of the prosecution is non explanation of the injuries received by the accused Jagtar Singh, Vijay Singh and Lal Singh, whereas it has come on record that these three persons have received injuries in this very occurrence as stated by Dr. Suresh Bhagat and both the Investigating Officers namely PW Mohan Singh and Shahid Parvez. 43. Mr. Raina has also pointed out certain discrepancies in the statement of prosecution witnesses in order to create doubts in prosecution case. 44. Learned senior counsel lastly submitted that a slip shod investigation has been carried out in the present case pointing out the following flaws: 1. Recoveries allegedly made, in particular, at the instance of disclosure statement of accused Sarain Singh after two months of the occurrence, that too, before most interested witnesses namely Mohan Singh and Chaggar Singh. According to him, all the recoveries made pursuant to the disclosure statement is in the absence of the aforesaid two witnesses and not even an attempt has been made to procure the presence of an independent witness. 2. Condition of the barrel (in common parlance "Nali") which is allegedly recovered from the well (in common parlance "kho") has been spoken to by the FSL expert as being one which did not show any sign of rust though prosecution witnesses stated that Nali had remained in the well for more than two months and the well had enough water in it. 3. The recoveries allegedly effected vide exhibit EXPW MS-2, MS-12 and MS-14 would not make anyone know as to how the different parts become a gun. The recoveries which have been effected vide aforesaid exhibit documents are admittedly not sealed on spot. In this regard, he has drawn the attention of the Court to the opinion of FSL expert. 4. Recoveries of live and empty cartridges from the place of occurrence are not shown in the site plan. 5. The recoveries which have been effected vide aforesaid exhibit documents are admittedly not sealed on spot. In this regard, he has drawn the attention of the Court to the opinion of FSL expert. 4. Recoveries of live and empty cartridges from the place of occurrence are not shown in the site plan. 5. No recovery of any weapon of offence is shown from accused Jagtar Singh, Lal Singh, Vijay Singh, Manohar Singh and Pardeep Singh alias Dhodu and Narotam Singh alias Biloo, whereas as per the prosecution story, some of the accused were armed with rifles and pistol also. 6. Ownership of recoveries of butt and nali not proved. 7. No evidence available on record showing that accused Sarain Singh possesses gun. 8. Report of Serologist not proved during the trial. 45. Mr. Raina, thus, concluded that the prosecution case as put forth is shrouded under the thick clouds of doubts on all important aspects, collective effect thereof would be that it is not safe to hold any of the accused guilty of the charge(s) framed against him. He, thus, prayed for acquittal of all the accused by setting aside the impugned judgment of conviction and sentence. 46. In support of his submissions learned counsel has relied upon the following judgments: i Sukhwant Singh v. State of Punjab : AIR 1995 SC 1601 ii. Kochu Maitheen Kannu Salim v. State of Kerala : 1998 Cr.LJ 2277 iii. State of Rajasthan v. Teja Singh & others : AIR 2001 SC 990 iv. State of Karnatka v. Unni & ors. : 2003 Cr. LJ 2790 v. Lakhvinder Singh & ors v. State of Punjab : 2003 Cr. LJ 3058 vi. Shri Gopal & anr v. Subash and others : AIR 2004 SC 4900 47. Mr. Abhinav Sharma adopted the arguments advanced by Mr. Raina learned Sr. Advocate. 48. Per contra, Mr. Jamwal, learned Dy. AG submitted that the prosecution case, as originally set up, is proved by the direct testimony of the eye witnesses who have stepped into the witness box. He submitted that even otherwise the presence of all these witnesses cannot be doubted as their houses are very close by to the scene of occurrence and immediately after they heard the sound of gunshot and the shouts of PW Parkash Singh that Sikander Singh has been killed, they including Kuldip Singh (deceased) rushed to the spot. He submitted that even otherwise the presence of all these witnesses cannot be doubted as their houses are very close by to the scene of occurrence and immediately after they heard the sound of gunshot and the shouts of PW Parkash Singh that Sikander Singh has been killed, they including Kuldip Singh (deceased) rushed to the spot. He submitted that it has also come on record that, but for the houses of the complainant side and the accused, there is hardly any house of any other independent witnesses, therefore, the presence of other witnesses at the scene of occurrence could not be possible. He submitted that the prosecution case is resting upon the injured witnesses and their presence at the scene of occurrence, at least, cannot be doubted being stamped witnesses. He submitted that non-explanation of injuries on the person of two/three accused cannot be said to be damaging to the prosecution as the specific case of the complainant side is that they were not armed with any weapon and that there is no medical evidence available on record with regard to the injuries received by any of the accused. He submitted that, no doubt, the investigation carried out in the present case does not appear to be up to the mark, but that flaw, by itself would not dislodge the eye version account which is getting support from the medical evidence. Learned State counsel lastly submitted that even if, no overact has been specifically attributed to an individual accused, still the present case in the totality of facts and circumstances would attract section 149 RPC as all the accused within a very short span of time assembled at the scene of occurrence with lethal weapons, therefore, act of one would be the act of all. He, thus, prayed for dismissal of the appeal into toto by upholding the conviction and sentence of all the accused as already recorded by the learned trial Court. DISCUSSION: 49. He, thus, prayed for dismissal of the appeal into toto by upholding the conviction and sentence of all the accused as already recorded by the learned trial Court. DISCUSSION: 49. The case of the prosecution, if one looks at the number of witnesses, appears to be quite weighty, but when appreciated in its right perspective, it can be comfortably split into three episodes viz; the first episode relating to the incident involving attack on PW Sikander Singh, when he and PW Parkash Singh had alighted from the bus at Marjali Chak Bhalwal; the second episode relating to the occurrence at Marjali Chak Bhalwal in which deceased Kuldip Singh was fired at and shot dead by accused Sarain Singh and the third episode of the prosecution story covering the ancillary happenings and the individual role of different accused persons after the second episode. 50. Another aspect which cannot lose sight of the Court is that some of the eye witnesses to the occurrence from the complainant side who claim to have received injuries at the hands of the accused are not medically examined as there is no medical evidence available on record in support of their injuries. Those witnesses are PWs Mohan Singh, the first informant, Sikander Singh, Shibo Devi and Bimla Devi (four in number). With regard to other three prosecution witnesses namely PWs Chanchal Singh, Jagdev Singh and Basant Singh, their medical evidence, however, is available on record. We also find from the statement of PW Dr. Suresh Bhagat who had medically examined the complainant side that he had medically examined accused Lal Singh who was brought by the police. However, there is no medical evidence available on record in this regard. From the statement of PW SI Mohan Singh, the I. O of the present case, it reveals that accused Jagtar Singh, Vijay Singh and Lal Singh had got injuries in this occurrence at the hands of the complainant side and in this regard, a case under section 307 RPC came to be registered at the instance of accused Vijay Singh, the outcome thereof has not been brought on record. At the same time, all the accused are denying the occurrence simplicitor in toto when examined under section 342 Cr PC. Another aspect of the case is that there is delay in dispatch of special report to the IIlaqa Magistrate. 51. At the same time, all the accused are denying the occurrence simplicitor in toto when examined under section 342 Cr PC. Another aspect of the case is that there is delay in dispatch of special report to the IIlaqa Magistrate. 51. We, in fact, have made an attempt to summarize the case of the prosecution in a narrow compass so that while appreciating the evidence available on record, one does not lose the track. The aforementioned judgments relied upon by Mr. Raina, learned Sr. Advocate would also be the guiding factor for us while deciding the present case in the right perspective. 52. With regard to the main evidence, what we found from the perusal of the impugned judgment of conviction and sentence is that the learned trial Court has identified PWs Mohan Singh (first informant), Basant Singh, Chanchal Singh, Jagdev Singh, Shibo Devi, Sikander Singh and Bimla Devi as eye witnesses of the occurrence, who according to the learned trial Court, reached the spot on hearing sound of gunshot and shouts of PW Parkash Singh that PW Sikander Singh has been killed. The learned Trial Court has prefaced the discussion by recording observation at page 46 of the judgment that: "all these witnesses have unanimously stated with one-ness that when reached on spot, saw Sikander Singh lying on the ground in an injured condition in a pool of blood and the accused Sarain Singh, Vijay Singh, Ravinder Singh & Peter, Kehar Singh, Pardeep Singh @ Dodu, Manohar Singh @ Tuti and Omkar Singh standing near him and when Kuldip Singh arrived there, Sarain Singh accused fired a shot from his 12 bore rifle which hit on his chest and fell down and died on spot and thereafter, accused Sarain Singh and his other confederates started indiscriminate firing resulting in pellet injuries to them." 53. We are not in a position to endorse the view taken by the learned trial Court. We have rather found that some of the witnesses have not seen the entire occurrence but have attempted to depose in the line with those who can be said to have seen the entire occurrence. We have also observed some exaggeration made by the witnesses and one having deposed about what he could not have seen. We have rather found that some of the witnesses have not seen the entire occurrence but have attempted to depose in the line with those who can be said to have seen the entire occurrence. We have also observed some exaggeration made by the witnesses and one having deposed about what he could not have seen. Be that as it may, we however do not intend to adopt the simple path of discarding entire direct evidence only on the basis of exaggeration or untrue versions given by some of the witnesses here or there. 54. Law in relation to the appraisal of evidence in criminal case by now is well settled. Grain of untruth, some exaggerations and overdoing by the prosecution witnesses is not uncommon and do not warrant discarding the entire evidence and the prosecution case. The maxim `falsus in uno falsus in omnibus' (false in one thing, false in everything) does not apply in criminal cases. Even if, some of the prosecution evidence or evidence of an eye witness in some of its aspects cannot be believed, the evidence need not to be disbelieved in its entirety and whatever believable and corroborated by other evidence need not be disbelieved. In appreciating and sifting the evidence, it is our duty, as it is duty of every Court to separate grains from the chaff unless we find such separation totally impossible. If it is not possible because of the truth and falsehood being so undistinguishably mixed up and intertwined that in the process of separation, the Court will have to reconstruct an absolutely new case for the prosecution by divorcing the essential details of prosecution case completely from context, then this principle will not apply and in that eventuality, acquittal of all the accused has to be recorded. 55. Before taking up the evidence of main eye witnesses for appraisal, we may point out, as we have noticed and paraphrased hereinabove, that learned trial Court has convicted all the accused who faced the trial and are now in appeal before this Court, inter alia under sections 302,307,148 and 149 RPC and has sentenced them inter alia to life imprisonment under section 302 read with section 149 RPC. We have also noticed that towards the closing of the judgment, learned trial Court has concluded that all the accused persons had constituted an unlawful assembly in furtherance of their common intention and object to cause death of deceased Kuldip Singh actuated by a motive on account of a dispute about a land between the two sides. We, however, on perusal and scrutiny of the prosecution evidence, are not persuaded to endorse the conclusion recorded by the learned trial Court that either the accused had acted with a common intention and object of or had constituted unlawful assembly for causing death of deceased Kuldip Singh. The conclusion deducible from the prosecution evidence, in our considered view, is that the act of accused person(s) that caused the death of the deceased Kuldip Singh rather was an instant and unplanned act and there is no evidence of any common intention and design to kill the deceased. In this context, we may briefly, state here that it is the prosecution case and the prosecution evidence shows that accused Sarain Singh, Jagtar Singh and Ravinder Singh had spotted PW Sikander Singh in the Bus in which he and PW Parkash Singh were traveling from Jammu towards village Marjali and had then covered him till he and PW Parkash Singh alighted from the Bus. PW Sikander Singh was waylaid by these accused and then accused Sarain Singh fired through his rifle on Sikander Singh and PW Parkash Singh had run towards the house of PW Sikander shouting that he has been killed. In the meantime, other accused also reached on spot. On hearing the shouts of PW Parkash Singh and sound of gunshot, other eye witnesses and deceased Kuldip Singh had run towards the place of occurrence, where they had found PW Sikander Singh lying on the ground and accused Sarain Singh fired at the deceased through his 12 bore rifle. Neither there is any direct evidence nor from the available evidence, can it be inferred that there had ever been any planning to kill deceased Kuldip Singh or the accused had constituted an unlawful assembly for that very purpose. The very coming on spot of the deceased and the witnesses was a matter of chance and possibility of any pre-arrangement of killing Kuldip Singh has to be ruled out. Viewed thus, conviction under Section 148 R. P. C. of all the accused cannot sustain. The very coming on spot of the deceased and the witnesses was a matter of chance and possibility of any pre-arrangement of killing Kuldip Singh has to be ruled out. Viewed thus, conviction under Section 148 R. P. C. of all the accused cannot sustain. Similarly conviction with the aid of Section 149 R.P.C is also not sustainable. 56. Having ruled out the formation of unlawful assembly by the accused or their having acted in furtherance of a common intention or object to kill deceased Kuldip Singh, we, thus, proceed ahead to discharge our duty of separating the grains from the chaff. Our endeavor, thus, would be to find out the individual complicity of each accused and to find out whether commission of any offence or offences by all or any of them is established or not. This, in fact, is the track, we are now following. 57. Let us now look into the first episode. The two witnesses of the first episode are PWs Sikander Singh and Parkash Singh. According to PW Sikander Singh on 10.02.1993, when the Bus reached village Kangrel at about 7. 15, accused Sarain Singh stopped the Bus. Accused Jagtar Singh entered the Bus and enquired whether someone hailing from village, Marjali was sitting there. PW Sikander Singh replied that he was going to Marjali. Accused Jagtar Singh alighted from the Bus and the Bus proceeded ahead. Accused Sarain Singh and Jagtar Singh along with one Ravinder Singh also kept on moving by their motor cycle ahead of the Bus. Accused Sarain Singh stopped the motor cycle at the place where PW Sikander Singh had to alight from the Bus. PWs Sakinder Singh and Parkash Singh alighted from the Bus there. Accused Jagtar Singh caught hold of the neck of PW Sikander Singh and pushed him down and accused Sarain Singh fired on him through 12 bore rifle which hit him at the back of his head and he fell in a ditch. Both the accused inflicted kicks on him and accused Sarain Singh also hit him with butt of the rifle. PW Parkash Singh ran towards house of Sikander Singh raising noise and Kuldip Singh, Chanchal Singh and Jhankar Singh came from the direction of his house and Lal Singh, Vijay Singh, Vakil Singh, Kehar Singh, Omkar Singh and Makhnoo (all accused) also came on spot. PW Parkash Singh ran towards house of Sikander Singh raising noise and Kuldip Singh, Chanchal Singh and Jhankar Singh came from the direction of his house and Lal Singh, Vijay Singh, Vakil Singh, Kehar Singh, Omkar Singh and Makhnoo (all accused) also came on spot. Remaining portion of the evidence in chief examination of this witness relates to rest of the occurrence and may be taken up later. 58. The evidence of PW Parkash Singh whom the prosecution has declared as hostile witness renders sufficient support to the evidence rendered by PW Sakinder Singh in relation to the first episode of the prosecution story. According to PW Parkash Singh, he had boarded the Bus at Bakshi Nagar on his way towards village Marjali and at Kangrel, accused Jagtar Singh had said something to PW Sakinder Singh, who was sitting in the Bus towards its front side and the Bus then proceeded ahead and stopped at Marjali where he and PW Sakinder Singh alighted from the Bus and thereafter, fight started between accused Jagtar Singh and PW Sakinder Singh and at that time, he left the place. Defence virtually has not questioned the version of PW Parkash Singh in his cross examination. Although PW Parkash Singh has been declared hostile, but virtually he has supported the evidence of PW Sakinder Singh in relation to the first episode. The evidence rendered by these two witnesses has not been shaken or diluted in their cross examination. The evidence of hostile witness is not to be rejected in toto is the settled legal position. We are, thus, accepting the prosecution case to the extent that accused Sarain Singh and Jagtar Singh had first traced PW Sakinder Singh in the Bus, when he was on his way from Jammu towards Marjali, way laid him when alighted from the Bus, attacked him and accused Sarain Singh fired at PW Sakinder Singh from his gun. 59. Prosecution, however, seems to have led no evidence to prove the nature and extent of injuries suffered by PW Sakinder Singh. PW Sakinder Singh states that he remained under treatment in Saddar Hospital Jammu and after that in Military Hospital Satwari and Command Hospital Udhampur. However, neither any medical certificate in respect of PW Sakinder Singh has been forwarded to the Court nor any witness is produced by the prosecution. PW Sakinder Singh states that he remained under treatment in Saddar Hospital Jammu and after that in Military Hospital Satwari and Command Hospital Udhampur. However, neither any medical certificate in respect of PW Sakinder Singh has been forwarded to the Court nor any witness is produced by the prosecution. No documentary evidence as regards hospitalization and treatment of PW Sakinder Singh is available on the trial Court file. We, therefore, having found that accused Sarain Singh had actually fired at PW Sakinder Singh are not in a position to find out, as it is not proved through medical/documentary evidence, as to what sort of injury or injuries, PW Sakinder Singh had sustained in the first episode of the incident. 60. The major role allegedly attributed to accused Sarain Singh is of killing Kuldip Singh relating to the second episode. As we have pointed out also that the trial Court has identified PWs Mohan Singh (informant), Basant Singh, Chanchal Singh, Jagdev Singh, Shibo Devi, Sakinder Singh and Bimla Devi as eye witnesses. We, however, would not feel it safe to rely upon the deposition of PW Sakinder Singh to the extent it relates to the second episode for the reason that according to him, having been shot at by accused Sarain Singh through 12 bore gun, he was hit at the back of his head and fallen in a ditch. From his own saying, we cannot believe that he was in a position to see and observe the events after that in the sequence he has depicted when stepped into the witness box. We, thus, ignore his statement as far as the second episode is concerned and start with the deposition of PW Mohan Singh who had lodged the FIR as the prosecution evidence in its totality would show that he was amongst few persons who had first reached the spot on hearing the sound of gun shot fired at PW Sakinder Singh by accused Sarain Singh and also the shouts of PW Parkash Singh. 61. According to PW Mohan Singh, on hearing the gun shot in his house and the shouts of PW Parkash Singh that PW Sakinder Singh has been killed, he accompanied by Kuldip Singh (deceased), PWs Chanchal Singh, Jagdev Singh and Jhanda Singh reached the spot. They saw PW Sakinder Singh drenched in blood. 61. According to PW Mohan Singh, on hearing the gun shot in his house and the shouts of PW Parkash Singh that PW Sakinder Singh has been killed, he accompanied by Kuldip Singh (deceased), PWs Chanchal Singh, Jagdev Singh and Jhanda Singh reached the spot. They saw PW Sakinder Singh drenched in blood. They also saw accused Sarain Singh, Vijay Singh, Lal Singh, Ravinder Singh, Kehar Singh, Vakil Singh, Makhnoo, Dhudhu, Nelu and Omkar Singh standing on the spot itself. On Kuldip Singh's reaching on spot, accused. Sarain Singh fired at him through 12 bore gun which hit him at his chest and he fell down and died on the spot. After that, accused Sarain Singh and his party started indiscriminate firing on complainant side. The evidence available on record is that accused Sarain Singh and his party was armed with rifles, revolver, sticks, swords and axes etc and they resorted to firing for a period of about 45 minutes. 62. PW Chanchal Singh and Jagdev Singh are other two persons. According to PW Chanchal Singh, he heard sound of two fires (gunshots) in his house. While running towards the place from where the sound of fire had come, PW Parkash Singh met him en-route who told him that accused Sarain Singh had fired at Sakinder Singh who has fallen in the ditch and then he and Kuldip Singh ran towards that side. PW Mohan Singh also followed them. PW Mohan Singh started wrapping towel around the wound of PW Sakinder Singh and at that time, accused Sarain Singh fired another shot, two pellets whereof hit him (witness) and Kuldip Singh (deceased). He further stated that PW Sarain Singh then fired another shot which hit Kuldip Singh who fell down and at that time, accused Sarain Singh was accompanied Jagtar Singh who also possessed a rifle and on seeing Kuldip Singh falling down, accused Sarain Singh and Jagtar Singh went towards the well and fired two shots there also in the air. 63. According to PW Jagdev Singh, on hearing sound of a gunshot, he accompanied Chanchal Singh and Jankar Singh (given up) ran towards the spot. His brother Kuldip Singh was also going towards the spot ahead of him and on reaching at the road, accused Sarain Singh fired through 12 bore rifle at Kuldip Singh which hit him and he fell down. His brother Kuldip Singh was also going towards the spot ahead of him and on reaching at the road, accused Sarain Singh fired through 12 bore rifle at Kuldip Singh which hit him and he fell down. He thereafter ran towards Kuldip Singh and tried to lift him but accused Vijay Singh fired at him (witness), two pellets whereof, hit him on his right hand and arm. At that stage, accused Vijay Singh asked accused Jagtar Singh that Jagdev Singh (witness) has survived so he should fire at him. Accordingly, accused Jagtar Singh fired at him (witness), pellets whereof hit his right thigh, thus, he sustained more injuries. Another person whose presence on spot at the time deceased was fired at emerges from the deposition of PW Jagdev Singh is Jankar Singh. As stated above, he, however, is not produced before the trial Court, may be as having been won over. 64. Lot has been said by Mr. Raina learned Sr. Advocate to dislodge the statement of PW Mohan Singh, showing him not to be a true witness to the occurrence on account of he being not an injured and there being a considerable delay in dispatch of the Special Report to the Illaqa Magistrate, thereby concocting a story of the choice, but we are not inclined to reject his testimony on that count. It is well settled that delay in dispatch of Special Report is not always fatal in each and every case and it depends upon the facts of each individual case. 65. It, thus, becomes unarguably true that three persons only namely Mohan Singh, Chanchal Singh and Jagdev Singh are the eye witnesses to the occurrence relating to the death of Kuldip Singh. They are the persons who had reached the spot and were present when deceased was fired at by accused Sarain Singh and according to PW Mohan Singh, Kuldip Singh died instantly on the spot. Arrival of PWs Basant Singh, Shibo Devi and Bimla Devi whom the trial Court has presumed as eye witnesses, on spot unto that time is not evidenced from the depositions of PWs Mohan Singh, Chanchal Singh and Jagdev Singh. We have however, perused their statements also. One of them, PW Bimla Devi claims to have seen accused Sarain Singh firing at the deceased and she in addition says that accused Omkar Singh flashed torch light on the deceased. We have however, perused their statements also. One of them, PW Bimla Devi claims to have seen accused Sarain Singh firing at the deceased and she in addition says that accused Omkar Singh flashed torch light on the deceased. We, however, cannot see truth in her version because her presence on spot at the relevant time is not indicated in the evidence of witnesses present at that time. PWs Basant Singh and Shibo Devi, who are the parents of the deceased are clear in their depositions that they had seen the deceased lying on the ground and according to both of them, he was dead. 66. Amongst PWs Basant Singh, Shibo Devi and Bimla Devi, we find the medical evidence of PW Basant Singh only. What would be the effect of that is a separate issue of discussion when we advert to the individual overact attributed to each accused. Here we have appreciated the evidence of these witnesses vis-a`-vis the second episode only. 67. To sum up the second episode, the evidence rendered by three eye witnesses namely PWs Mohan Singh, Chanchal Singh and Jagdev Singh, in our considered view, goes to prove beyond any doubt and with all clarity that it was accused Sarain Singh alone who had fired at through his 12 bore gun and shot released from it hit deceased Kuldip Singh who died on the spot itself. As we have already found and stated hereinabove that there is no evidence of any common intention and design on the part of all the accused to kill Kuldip Singh nor there is any evidence available on record to hold that all the accused had formed unlawful assembly with common object of killing Kuldip Singh, it is only accused Sarain Singh and none-else who can be held guilty for causing death of Kuldip Singh. Firing upon him (Kuldip Singh) was a spontaneous act of accused Sarain Singh. 68. The direct evidence rendered by the eye witnesses gets sufficient and useful support from the medical evidence rendered by PW Dr. Rajinder Prashad and post mortem report exhibit RP. To say in short, Dr. Prashad has found multiple pellet injuries and as per his opinion, death of the deceased was caused due to haemorrhagic shock as a result of multiple injuries caused by discharging of pellets. 69. Rajinder Prashad and post mortem report exhibit RP. To say in short, Dr. Prashad has found multiple pellet injuries and as per his opinion, death of the deceased was caused due to haemorrhagic shock as a result of multiple injuries caused by discharging of pellets. 69. Prosecution has also made an attempt to provide evidence as regards recovery of weapon of offence from accused Sarain Singh, but we, having carefully scanned this aspect of the evidence, are not satisfied to arrive at a finding that the barrel or the gun said to have been recovered at the instance of accused Sarain Singh was one used in this occurrence. This is because the evidence, as discussed above, positively is that accused Sarain Singh had fired at the deceased through a gun (rifle) which was in his possession and there is no evidence that he had brought any gun from the house of Raj Kumari. We are not in a position to hold that the barrel recovered at the instance of the accused from the well has any co-relation with the gun actually used by the accused. That apart, we are also conscious of the fact that there is a slip shod investigation carried out with regard to the recovery of weapons of offence from accused Sarain Singh and for that matter, from other accused as well. Be that as it may, this defect would not wash away the direct eye version account which is corroborated by the medical evidence. 70. We would thus hold that the learned trial Court has fallen into error in convicting the appellants (accused) other than the appellant-accused Sarain Singh for the offences punishable under sections 302 with the aid of section 149 RPC as neither any unlawful assembly was constituted nor death of the deceased was caused by the accused Sarain Singh in furtherance of common intention or object with his co-accused. 71. We, thus, while disturbing, the judgment of conviction and sentence to that extent, hold accused Sarain Singh only guilty for the charge of section 302 RPC substantively. 72. What we have observed is that the learned trial Court besides convicting and sentencing all the accused for the offence punishable under section 302 RPC read with section 149 RPC, which conviction we have already disturbed, has convicted all the accused under Section 307 RPC read with Section 149 RPC. 72. What we have observed is that the learned trial Court besides convicting and sentencing all the accused for the offence punishable under section 302 RPC read with section 149 RPC, which conviction we have already disturbed, has convicted all the accused under Section 307 RPC read with Section 149 RPC. We, however, are unable to endorse this approach adopted by learned trial Court for the reason that we have already found hereinabove that the sections 148/149 are not at all attracted in this case. We, nonetheless, proceed to take up individual complicity of each accused which would include even accused Sarain Singh. 73. The next determining factor is as to whether accused Sarain Singh is liable to be convicted under section 307 RPC for allegedly causing fire arm injury to PW Sakinder Singh and for that matter, any other accused who has given injuries to other persons from the complainant side and for this, appraisal of evidence of injured witnesses is required. This, in our view, would cover the last aspect, what we call, the third episode of the prosecution story. 74. As stated above, we have only three injured prosecution witnesses namely Chanchal Singh, Jagdev Singh and Basant Singh. With regard to the injuries received on the person of injured Jagdev Singh and Basant Singh, Doctor Suresh Bhagat is categoric in stating that these injuries were caused by fire arm, whereas with regard to the injury on the person of Chanchal Singh, he declared the injury simple in nature and caused by blunt object Dr. B. L. Pandita (Radiologist), who had examined the X-ray films of these injured witnesses, is also clear that the X-ray films of Jagdev Singh and Basant Singh were showing multiple radio opaque shadows of metallic density, whereas in case of injured Chanchal Singh, he advised for repeating lateral view and thereafter x-ray films were not shown to him. Thus, on the basis of medical evidence available on record, it cannot be said that the injury received on the person of injured Chanchal Singh is on account fire shot, whereas with regard to the injuries on the person of remaining two injured witnesses namely Jagdev Singh and Basant Singh, it can be safely said that the injuries received by them are fire arm injuries. 75. 75. When PW Chanchal Singh stepped into the witness box, stated that accused Sarain Singh fired a shot from his gun and its pellets hit him and Kuldip Singh (deceased) also and that the second shot hit Kuldip Singh who fell down. He specifically attributes injury on his person at the hands of accused Sarain Singh, that too by a fire shot which fact is not proved from the medical evidence. In his deposition before the trial Court, he does not attribute any overact to any other accused except accused Sarain Singh so far as the receipt of injury on his person is concerned. 76. We are also conscious of the fact that PW Sikander Singh has also attributed injury on his person at the hands of accused Sarian Singh, but in this regard also, there is no medical/documentary evidence which aspect has been discussed by us in detail in one of the preceding paras while discussing the evidence of PW Sikander Singh. Viewed thus, it would not be safe to convict accused Sarain Singh for the offence under section 307 RPC substantively. 77. Let us now advert to the evidence of PW Basant Singh, the other injured witness, who, when stepped into the witness box, stated that accused Lal Singh fired a shot upon him which hit him on his left leg Doctor Suresh Bhagat, who had medically examined him in the Hospital, observed multiple lacerated punctured wounds on the interior and medial of left thigh 4 cm in size which was bleeding and all these wounds were caused by the discharge of pellet from the smooth bore fire arm. As per the x-ray films also, these could be said to be fire arm injuries. No doubt, PW Basant Singh received injuries upon his non-vital part, nonetheless the act of releasing shot from fire arm by itself brings the act within the mischief of section 307 RPC. 78. We are now left with injured witness PW Jagdev Singh, who, when stepped into the witness box, stated that accused Vijay Singh fired at him with 12 bore gun and pellets hit him and further that accused Vijay Singh exhorted accused Jagtar Singh to fire at him (witness) saying that he had survived from the earlier shot released by him (Vijay Singh). Following injuries on his person were noticed by Doctor Suresh Bhagat. Following injuries on his person were noticed by Doctor Suresh Bhagat. i. Multiple lacerated punctured wound 4 cm on the right thigh lateral margin bleeding. ii. Swelling on the lateral upper side of the thigh. iii. Multiple lacerated punctured wound 4 cm on the right fore arm bleeding. MLC Skigram No. 2602 dated 10.02.1993 showed multiple radio opaque shadows of metallic density. Fracture of greater torchanter at femur. 79. All the aforesaid injuries are undoubtedly fire arm injuries as is clear from the evidence of Doctor B. L. Pandita (Radiologist) also. Viewed thus, accused Vijay Singh and Jagtar Singh can also safety be convicted for the offence under section 307 RPC substantively. 80. We may make it clear that PW Mohan Singh, PW Shibo Devi and Bimla Devi also claim themselves to be injured witnesses and when stepped into the witness box attributed injuries on their person at the hands of some of the accused, but in the absence of any medical evidence available on record with regard to the injuries received on their person, we find it unsafe to hold any other accused guilty for his individual act. 81. Besides conviction under section 302 RPC, learned trial Court has convicted accused Sarain Singh and Ravinder Singh under Arms Act and accused Jagtar Singh for offence under section 201 RPC. As stated above, recovery of arms at the instance of the accused is not proved to the hilt considering the investigation carried out in this regard, to be slip shod, therefore, conviction of accused. Sarain Singh and Ravinder Singh under Arms Act cannot be maintained. We also do not find any evidence much less convincing evidence to sustain the conviction of accused Jagtar Singh for offence under section 201 RPC. Therefore, they deserve acquittal qua the said charges. 82. As a sequel to the aforesaid discussion, the net result now surfaces is that the instant criminal appeal is partly allowed in the following terms:- i. All the accused are acquitted of the charge of Section 148 R.P.C. ii. All the accused except accused Sarain Singh are acquitted of the charges of section 302 read with section 149 RPC. iii. Accused Sarain Singh, however, is convicted under section 302 RPC substantively and in these terms, impugned conviction and sentence recorded by the learned trial Court is upheld. iv. All the accused except accused Sarain Singh are acquitted of the charges of section 302 read with section 149 RPC. iii. Accused Sarain Singh, however, is convicted under section 302 RPC substantively and in these terms, impugned conviction and sentence recorded by the learned trial Court is upheld. iv. All the accused except accused Lal Singh, Vijay Singh and Jagtar Singh are acquitted of the charge of section 307 read with section 149 RPC. v. Accused Lal Singh, Vijay Singh and Jagtar Singh, however, are convicted under section 307 RPC substantively for causing fire arm injury to PWs Basant Singh and Jagdev Singh. However, keeping in view the totality of facts and circumstances of the present case, their sentence of rigorous imprisonment of five years as recorded by the learned trial Court is reduced to the period already undergone by them in connection with this case which otherwise turns out to be more than five years each. Sentence of fine imposed upon these three accused, however shall remain intact. vi. Accused Sarain Singh and Ravinder Singh are acquitted under Arms Act. vii. Accused Jagtar Singh is also acquitted of charge under section 201 RPC. 83. Since all the accused were on bail during the pendency of the instant appeal and that Lal Singh, Vijay Singh and Jagtar Singh have already undergone their substantive sentence as undertrial prisoners/ convicts, the bail/ surety bond of accused Sarain Singh only stands cancelled. He shall have to serve the remaining period of his substantive sentence. Remaining accused are discharged of their individual bail/ surety bonds. 84. Confirmation No. 52/1996 sent by learned trial Court is also answered accordingly. 85. Disposed of as such. 86. Registrar Judicial to certify this judgment to the trial Court in terms of section 425 of CrPC (State Code) to deal with its execution in accordance with law. 87. Before parting with, we would like to alert the Registry about the condition of the record of the instant case which is hardly to live any more unless due care is taken. As a matter of fact, with great difficulty we could read the evidence recorded in vernacular (urdu).