JUDGMENT Hon’ble Om Prakash-VII, J.—This criminal appeal has been preferred by the accused appellants against the judgement and order dated 10.5.1983 passed by the 1st Additional District and Sessions Judge, Bulandshahar in Session Trial No. 124 of 1981 (State v. Dhani Ram and others) convicting and sentencing the appellants for the offences punishable under Section 302 IPC read with Section 34 IPC to undergo life imprisonment and for the offence under Section 307 IPC read with Section 34 IPC to undergo seven years rigorous imprisonment. All the sentences have been directed to run concurrently. 2. At the outset, it is relevant to mention here that during pendency of this appeal, the appellant No. 1 - Dhani Ram and appellant No. 2 Virendra have died. Accordingly, vide order dated 2.5.2012, this Court has abated the appeal in respect of the appellant No. 1 - Dhani Ram and appellant No. 2 Virendra. 3. Now, we are proceeding to consider the present appeal in respect of rest of the appellant i.e. Narendra. 4. The facts of the case, as unfolded by the informant Ranjit Singh son of Harish Chandra in the First Information Report (in short ‘F.I.R.’), are that a litigation was started between his uncle Hoshiyar Singh and Dhani Ram in respect of the land/house, which was decreed in favour of Hoshiyar Singh. On 12.12.1980 at about 2.30 p.m., when Km. Suman, daughter of Udaivir Singh and his daughter Km. Poonam were placing BITORA in the house, Narendra and Virendra sons of Dhani Ram came there and prevented them for placing BITORA there. The children told that the land in question belonged to them and Narendra and Virendra had no concern with the said land. On this, Narendra and Virendra told that they would teach a lesson right now about their concern. They rushed towards their home and returned back with their father Dhani Ram. Dhani Ram was armed with gun and Narendra was armed with country made pistol. Having reached the spot, Dhani Ram with gun and Narendra with country made pistol started firing. The shots hit Km. Suman, Km. Poonam and Pradeep. Having received gun shot injuries, they fell down on the ground. Manbir son of Honmat Singh and Jagat Singh son of Karan Singh after unloading sugar-cane from their buggi were coming and on hearing the gun shots rushed to the place of occurrence. The shots hit Km. Suman, Km. Poonam and Pradeep. Having received gun shot injuries, they fell down on the ground. Manbir son of Honmat Singh and Jagat Singh son of Karan Singh after unloading sugar-cane from their buggi were coming and on hearing the gun shots rushed to the place of occurrence. As and when they were rescuing the all three injured, Dhani Ram and others opened fires on them also. Virendra gave threat to kill them. On exhortation of Virendra, they opened more fires and on account of which Manbir and Jagat also received injuries. The informant, Ariyal son of Hari Singh, Momraj son of Chhajju and Udaivir son of Hoshiyar had reached the spot at the time of occurrence. Thereafter, when the informant was carrying the injured on his Tractor to police station Gulaothi for lodging F.I.R., on the way, Km. Suman became serious. So he carried Km. Suman to Hospital. The doctor at P.H.C. Gulaothi, declared Km. Suman dead. Leaving the dead-body of Km. Suman in the hospital, he proceeded to concerned Police Station alongwith other injured for lodging F.I.R. 5. On the basis of the written report (Ext. ka-1) submitted by the informant Ranjit Singh, chik First Information Report (Ext. Ka-7) was registered at Police Station concerned on 12.12.1980 at 4.00 p.m. mentioning all the details as had been described in Ext. Ka-.1. G.D. entry was also made at the same time, which is Ext. Ka-8. Written information (Ext. ka-12) about the death of Km. Suman was also sent by the doctor posted at PHC Gulaothi on 12.12.1980 at 3.30 p.m. to the concerned police station. 6. Investigation of the matter was entrusted to sub-Inspector Harbans Singh. After recording the statement of informant Ranjit Singh, he alongwith other police personnels rushed to the concerned PHC on the same day. Having reached the PHC, the Investigating Officer instructed Sub-Inspector R.S. Pundir to prepare inquest report etc. Having been instructed, S.I. R.S. Pundir prepared the inquest report (Ext. ka-2). The Investigating Officer also prepared photo lash (Ext. ka-4), challan lash (Ext. ka-3), letter for post-mortem (Ext. Ka-5) and letter (Ext. ka-6) for returning the clothes of the deceased in sealed condition after post-mortem examination. The dead body was kept in sealed cover preparing the sample seal and was dispatched through constable Awadh Pal Singh and constable Suresh Pal Singh alongwith the police papers for post-mortem. Site plan (Ext. ka-3), letter for post-mortem (Ext. Ka-5) and letter (Ext. ka-6) for returning the clothes of the deceased in sealed condition after post-mortem examination. The dead body was kept in sealed cover preparing the sample seal and was dispatched through constable Awadh Pal Singh and constable Suresh Pal Singh alongwith the police papers for post-mortem. Site plan (Ext. Ka-20) was also prepared. The Investigating Officer interrogated Pradeep, Km. Poonam, Jagat Singh and Manbir in the hospital. After completing the above formalities, the Investigating Officer alongwith other police personnels proceeded to place of occurrence and obtained the sample of plain earth and bloodstained earth from the place of occurrence and kept them in separate container in a sealed condition and also prepared memo (Ext. Ka-18) in this regard. The Investigating Officer also recovered four empty cartridges (materials Exts. 9,10,11 and 12) from the spot and kept the same in sealed condition and prepared memo (Ext. ka-17) in this regard. The Investigating Officer also prepared site plan (Ext. ka-20). On 12.12.1980 at about 3.00 p.m. one of the sons of Dhani Ram threw gun alongwith four cartridges in the room of Ajai Kumar, Advocate. When Ajay Kumar returned from Court, he was informed about the same. Due to darkness, he could not inform and deposit the gun on the same day but on the next day i.e. 13.12.1980, he deposited the aforesaid gun and cartridges at concerned police station which were kept in a sealed cloth and a memo (Ext. ka-9) was prepared in this regard. On 2.4.1981 sealed bundles of case property were sent to Forensic Science Laboratory for chemical examination. Necessary examination was done by Om Prakash Tripathi, Ballistic Expert. On the basis of firing pin marks and breech, he came to conclusion that empty cartridges had been fired from the same gun. 7. Autopsy report (Ext. ka-23) was prepared after conducting the post-mortem on the body of Km. Suman on 13.12.1980 at 2.15 p.m. 8. As per the post-mortem report, the deceased was about 12 years old and probable time of death was about one day before. On external examination, rigor mortis was present in whole body. Eyes and mouth were half open. 9. On examination of the dead body of the deceased, following ante-mortem injuries were found: “1. Fire-arm wound 1/10” x 1/10" skin deep on the front of forehead 1/2" above the angle of eye brow. 2. On external examination, rigor mortis was present in whole body. Eyes and mouth were half open. 9. On examination of the dead body of the deceased, following ante-mortem injuries were found: “1. Fire-arm wound 1/10” x 1/10" skin deep on the front of forehead 1/2" above the angle of eye brow. 2. Fire-arm wound 1/10" x 1/10" x skin deep on the lower lateral part right side neck front. 3. Multiple fire-arm wounds in an area 6" x 1 ½” x cavity deep on the upper part of the chest (right and left). Smaller wounds were 1/10" x 1/10" x cavity deep and the bigger wounds were 1/8" x 1/10" x cavity deep. 4. Multiple fire-arm wounds in an area of 11 ½” x 2 ½” on the whole of right arm, fore-arm only in outer aspect. The smaller wounds were 1/10" x 1/10" x skin deep in size while the bigger wounds were 1/6" x 1/10" x skin deep. 5. Multiple fire-arm wounds in an area of 7" x 7 ¾”on upper and middle part of abdomen. The smaller wounds were 1/10" x 1/10" cavity deep in size and bigger wounds were ½” x ¼” x cavity deep in size. 6. Multiple fire-arm wounds in an area of 5 ½” x ½” on upper middle part of right thigh front. The smaller wounds were 1/10" x 1/10" x skin deep in size while bigger wounds were ½” x 1/10" skin deep in size. 7. Fire-arm wound 1/10" x 1/10" x skin deep on inner upper part left thigh. 8. Multiple fire-arm wound on an area 2 ½” x 1 ½” on left inguinal region. The smaller wounds were 1/10" x 1/10" x skin deep in size while the bigger wounds were 1/8" x 1/10" x skin deep in size.” 10. According to the doctor, no blackening was found. Brain was congested and blood clots were seen in thorax cavity below the wound area and in thoracic cavity ½ Lb. of clotted blood was present and small pellets were found from thorax cavity. Clotted blood was found in the abdominal cavity. Pellets were also found in the small intestine. 11. In the opinion of the doctor, death was caused due to shock and haemorrhage as a result of ante-mortem injuries. 12. Injured Poonam was also medically examined on 12.12.1980 at 4.30 p.m. by Dr. O.P. Gupta. Clotted blood was found in the abdominal cavity. Pellets were also found in the small intestine. 11. In the opinion of the doctor, death was caused due to shock and haemorrhage as a result of ante-mortem injuries. 12. Injured Poonam was also medically examined on 12.12.1980 at 4.30 p.m. by Dr. O.P. Gupta. Following injuries were found on his body: “Multiple fire-arm wounds of entry of size 0.4 cm x 0.4 cm x subcutaneous deep in an area of 48 cms extending from out part of left hip, lateral and back of left thigh and lateral side of left knee joint. Pellets are palpable in the back of left thigh here and there wound bleeding.” 13. According to the doctor, all the injuries were simple and caused by some fire-arm. X-ray was advised. 14. On the same day, Pradeep was also medically examined and following injuries were found: “1. Seven fire-arm wound of entry of size 0.4 cm x 0.4 cm x subcutaneous deep, one on medial side of middle part of right patella, two on lateral side of upper part of right let, three in middle part of front of right leg and one in front of lower part of right leg. The wound was bleeding and one pellet was felt in back of upper part of right leg. 2. Eight fire-arm wound of entry 0.4 cm x 0.4 cm x subcutaneous deep. One on medial side and one in front of middle part of left thigh, three in front of upper part of knee joint and three in front of upper part of left leg. The wound was bleeding. ” 15. In the opinion of the doctor, injuries were simple and caused by some fire-arm. X-ray was advised. 16. Jagat Singh, was also medically examined on the same day and the following injuries were found on his body: “Four fire-arm wound of entry 0.4 cm x 0.4 cm subcutaneous deep - two in back of upper part of right arm, one in middle part of right scapular region and one in middle part of front of right pinna 1 cm behind the external orifice of right ear. The wound was bleeding.” 17. According to the doctor, injuries were simple and caused by some fire-arm. X-ray was advised. 18. The wound was bleeding.” 17. According to the doctor, injuries were simple and caused by some fire-arm. X-ray was advised. 18. Manbir was also medically examined on the same day and the following injuries were found on his body: “One fire-arm wound of entry 0.4 cm x 0.4 cm x subcutaneous deep in front of right shoulder 6 cm below lateral end of right clavicle. The wound was bleeding. 19. According to the doctor, injuries were simple and caused by some fire-arm. X-ray was advised. 20. After completing the investigation, charge-sheet (Ext. ka-22) against all the accused appellants was filed. Concerned Magistrate took the cognizance. The case being exclusively triable by session Court, was committed to the Court of sessions. 21. Accused appellants appeared and charges under Section 302 read with Section 34 IPC and Section 307 read with Section 34 IPC were framed in the trial Court against them to which they denied and claimed their trial. 22. Trial proceeded, and on behalf of the prosecution, fifteen witnesses were examined., wherein PW-1 Ranjit Singh, who is eye-witness, has supported the prosecution case as has been mentioned in the written report (Ext. ka-1). PW-2 Jagat Singh, who is an injured witness, has also supported the prosecution case. PW-3 Pradeep, who is also injured witness, has also supported the prosecution case. PW-4 Arimal, who is an eye account witness, has also supported the prosecution case. PW-5 S.I. R.S. Pundir, who prepared the inquest report and other papers in respect of deceased Km. Suman. PW-6 Head Constable Sahdev, who prepared the chik. PW-7 Dr. O.P. Gupta, who examined the injured. This witnessed proved the injury reports relating to them. PW-8 Vijay Pal. In the presence of this witness, four empty cartridges and bloodstained earth and plain earth from the place of occurrence were kept in sealed condition. PW-9 Investigating Officer Harbans Singh, who has conducted investigation in the matter. He has also prepared the site plan (Ext. ka-20) after inspection of the spot. Memo regarding bloodstained earth (Ext. ka-18) was also prepared by this witness. PW-10 Dr. G.N. Srivastava, who conducted the post-mortem on the body of deceased Km. Suman. This witness has proved the post-mortem report. PW-11 Constable Awadh Pal Singh, who carried the dead body of Km. Suman to mortuary. PW-12 Constable Harish Chand. This witness carried the case properties to Forensic Science Laboratory for examination. ka-18) was also prepared by this witness. PW-10 Dr. G.N. Srivastava, who conducted the post-mortem on the body of deceased Km. Suman. This witness has proved the post-mortem report. PW-11 Constable Awadh Pal Singh, who carried the dead body of Km. Suman to mortuary. PW-12 Constable Harish Chand. This witness carried the case properties to Forensic Science Laboratory for examination. PW-13 Om Prakash Tripathi, Ballistic expert. PW-14 Sub-Inspector K.D. Pal. Bloodstained earth, plain earth and four empty cartridges were kept in sealed condition and two accused, namely, Dhani Ram and Virendra, who were arrested by the I.O., were handed over by the Investigating Officer to this witness and he put them behind the bars. PW-15 Ajay Kumar. This witness has deposited the gun, alleged to be thrown in his house by the son of Dhani Ram, at police station concerned. 23. After closure of evidence, statement of accused appellants under Section 313 Cr.P.C. was recorded. 24. Accused persons in their statements under Section 313 Cr.P.C. have admitted their inter-se relationship but have denied the allegations levelled against them and stated that they have been falsely implicated due to enmity. Accused appellant Dhani Ram claimed that the GHER in question to be their own. He further stated that the gun in question belongs to him and the same was taken by the police from his house. He had fired from his gun exercising the right of self-defence when informant side attacked on him. Other accused appellants have stated that they were not present on the spot and have been falsely implicated in the present case. 25. The trial Court had also examined a Court witness C.W.-1 Bhanu Prakash, a copiest in revenue record room in collectorate, who has stated that the copy of map (Ext. kha-4) has some addition which is not in the original map. 26. Having heard the learned counsel for the parties and going through the record, the trial Court has found that the prosecution has fully succeeded in bringing home the charges against the accused appellants beyond reasonable doubt warranting their conviction and sentence. Hence this appeal. 27. By the order dated 7.8.2014 passed by the Secretary, Legal Aid Services Committee, Ms. Sumati Rani Gupta was appointed as Amicus Curiae to assist the Court on behalf of the appellants. 28. We have heard Ms. Hence this appeal. 27. By the order dated 7.8.2014 passed by the Secretary, Legal Aid Services Committee, Ms. Sumati Rani Gupta was appointed as Amicus Curiae to assist the Court on behalf of the appellants. 28. We have heard Ms. Sumati Rani Gupta, learned Amicus Curiae appearing for the appellants and Shri Rajiv Sharma, learned AGA appearing for the State at length, and perused the entire record carefully. 29. Castigating the impugned judgement and order, learned Amicus Curiae for the appellants has submitted that no effort was made by the police to recover the weapon alleged to have been used by the accused appellants. Four empty cartridges were said to have been recovered from the place of occurrence but as per the report of Forensic Science Laboratory, all these empty cartridges were used only in the DBBL gun assigned to the accused Dhani Ram (since died). There are major contradictions in the statement of eye account witnesses on the point of manner of the incident. Co-accused Dhani Ram (since died) had admitted in his statement under Section 313 Cr.P.C. that as the informant side were occupying the land belonging to them, he had opened fire in his self-defence. There is improvement in the statement of the prosecution witnesses at the stage of examination before the Court. No empty cartridge was recovered from the place of occurrence, which was said to have been used in the country made pistol assigned to the accused appellant Narendra. All the injured witnesses have not been examined, therefore, prosecution case becomes doubtful. Medical evidence does not support the prosecution case. There is contradiction in the statement of prosecution witnesses on the point of participation of appellant Narendra in the commission of the presence offence. Since prosecution was not able to establish the specific role of the appellant Narendra, he cannot be held guilty taking recourse of provisions of Section 34 IPC. It was lastly submitted that eye account witnesses are relative and inimical witnesses, therefore, on this ground also the prosecution case becomes doubtful. 30. On the other hand, learned AGA has submitted that the statement of prosecution witnesses on material points, i.e., altercation, exhortation, firing, participation, injuries, date, time, and place of occurrence, are consistent and clear. It was lastly submitted that eye account witnesses are relative and inimical witnesses, therefore, on this ground also the prosecution case becomes doubtful. 30. On the other hand, learned AGA has submitted that the statement of prosecution witnesses on material points, i.e., altercation, exhortation, firing, participation, injuries, date, time, and place of occurrence, are consistent and clear. Accused Dhani Ram (since died) in his statement under Section 313 Cr.P.C. had admitted that he opened fire from his DBBL gun in his self-defence due to which injuries were caused, therefore, it is evident that date, time and place of occurrence have been admitted by the defence. Thus, the trial Court has rightly held guilty to the accused appellants under Section 302/34 IPC and Section 307/34 IPC.. 31. We have considered the submissions made by the learned counsel for the parties and have carefully gone through the entire record and evidence. 32. In the present matter, the accused appellant Dhani Ram (since died) has stated in the statement under Section 313 Cr.P.C. that he opened fire from his DBBL gun in his self-defence upon the deceased and the injured persons. Therefore, it will be deemed that date, time and place of occurrence are admitted to the accused appellants. Thus, we are proceeding to take-up the origin and genesis of the incident. Existence of F.I.R. at the time mentioned in the chik was also not challenged during the course of argument. 33. The prosecution case, as per the F.I.R., is that deceased Km. Suman and one Km. Poonam were placing BITORA in the Gher where the present incident took place. It is also admitted fact between the parties that a proceeding under Section 145 Cr.P.C. was finally decided in favour of Hoshiyar Singh. Accused appellants case is that the said Gher was belonging to them and the opposite parties were trying to occupy the same on the day of the incident forcibly. When they objected, the opposite parties (informant side) attacked them and then Dhani Ram accused appellant (since died) opened fire from his DBBL gun in his self-defence. From the version of both the parties, it is clear that a dispute regarding the ownership and possession over the said Gher was in existence and at the time of the incident persons belonging to informant side were placing BITORA in the said Gher. From the version of both the parties, it is clear that a dispute regarding the ownership and possession over the said Gher was in existence and at the time of the incident persons belonging to informant side were placing BITORA in the said Gher. Thus, it is clear that the present incident took place regarding possession over the said Gher. It is also evident from the evidence adduced by both the sides that origin and genesis of the present incident was the same as was mentioned in the F.I.R.. 34. Prosecution case, as per the F.I.R., is that initially Virendra and Narendra came on the spot and objected Km. Suman and Km. Poonam not to keep the BITORA in the Gher and when they did not stop, Virendra and Narendra went their house and came back with his father Dhani Ram (since died). Accused Dhani Ram was armed with DBBL gun and accused appellant Narendra was armed with country made pistol. It is also the case of the prosecution that Dhani Ram opened fire from his DBBL gun upon Km. Suman, Km. Poonam and Pradeep, which hit them. Accused appellant Narendra also opened fire from his country made pistol, which also caused injuries to them. PW-1 Ranjit Singh, who is said to be present in his Gher, PW-2 Jagat Singh, who was parking the Buggi after unloading the sugar-cane, reached the spot upon hearing the shots. This fact clearly indicates that PW-1 and PW-2 were not present on the spot from the very beginning. The question arises as to whether initially fire was made by both the accused appellants i.e. Dhani Ram (since died) and Narendra or only by Dhani Ram. PW-1, PW-2 and PW-3 have stated that both the accused appellants have made fires. PW-4 Arimal has stated that he reached the spot after hearing the noise and was about 50 paces away from the place of occurrence. When he reached the spot, he saw the accused appellants running away from the spot. As we have mentioned above, PW-1 and PW-2 were not present on the spot at the time when first time fire was made, therefore, their evidence with regard to the above question is based on the information given by PW-3 Pradeep, who had become unconscious after receiving injuries. As we have mentioned above, PW-1 and PW-2 were not present on the spot at the time when first time fire was made, therefore, their evidence with regard to the above question is based on the information given by PW-3 Pradeep, who had become unconscious after receiving injuries. Fire had been made and Dhani Ram (since died) accepted that he had made the fire and the report of the Forensic Science Laboratory indicates that all the four empty cartridges recovered from the place of occurrence had been used in the DBBL gun. No empty cartridge said to have been used in the country made pistol was recovered from the place of occurrence. Prosecution case is that accused appellant Narendra had opened fire not only at the initial stage of the incident but also at the time when PW-1 and PW-2 had reached the spot. Meaning thereby he would have repeatedly re-loaded the country made pistol. 35. We have closely scrutinized the medical evidence to ascertain this fact as to whether the injuries found on the body of the deceased and the injured were caused by DBBL gun or by the country made pistol. PW-7 Dr. Om Prakash Gupta in his cross-examination had admitted that the dimension of the injuries of all the injured were the same. He has also stated that if all the injured were standing at the same place, then in that situation all the injuries found on the body of the injured persons could be caused by a single fire. It has also come in the prosecution evidence that when first fire was made, all the three persons, namely, Km. Suman, Km. Poonam and Pradeep were standing together. Looking to the distance between the deceased, injured and the assailants and also this fact that no blackening or charring was present in the injuries as also the dispersal of pellets, the view expressed by PW-7 appears probable and believable. Thus, in our view, the injuries found on the body of the deceased Km. Suman, injured Km. Poonam and injured Pradeep were the result of a single fire made by accused Dhani Ram (since died) from his DBBl gun. Had the country made pistol was re-loaded for making another fire, the empty cartridge used in the same would have been recovered from the spot. 36. Suman, injured Km. Poonam and injured Pradeep were the result of a single fire made by accused Dhani Ram (since died) from his DBBl gun. Had the country made pistol was re-loaded for making another fire, the empty cartridge used in the same would have been recovered from the spot. 36. Close scrutiny of the prosecution evidence also indicates that second time fires were made when PW-1, PW-2 and one Manbir were trying to save the deceased Km. Suman, Km. Poonam and Pradeep and by that time they were unconscious. PW-1 and PW-2 are the witness of shots made subsequently. PW-3 is the witness of shots made at initial stage. Statement of PW-4 is also relevant only with regard to fire made at subsequent stage. When second time fires were made, PW-2 and Manbir were taking the injured. A perusal of the statements of PW-1, PW-2, PW-3 and PW-4 also shows that at initial stage, three fires were made. Four fires were said to have been made at subsequent stage. Thus, total seven fires are said to have been made by the accused appellants. Four empty cartridges were recovered from the place of occurrence. Accused appellant Dhani Ram (since died) was armed with DBBL gun. All the empty cartridges recovered from the place of occurrence are reported to be used in DBBL gun. Hence, in the facts and circumstances of the case, it is evident that all fires were made by the accused appellant Dhani Ram (since died) from his DBBL gun. Pradeep was also placing BITORA had not been averred in the FIR but subsequently this fact was stated before the Court. There are also contradictions in the statement of witnesses on the point of total number of fires. The statement of witnesses that total six fires were made in the incident is consistent and clear. Number of injuries found on the body of deceased and injured is also in consonance with the said fact. In the process of loading and unloading the DBBL gun, four empty cartridges would have fallen down on the place of occurrence and two used empty cartridges remained in the gun itself. Number of empty cartridges recovered from the place of occurrence and number of fires said to have been made from DBBL gun in the incident commensurate the number of injuries found on the body of deceased and injured. 37. Number of empty cartridges recovered from the place of occurrence and number of fires said to have been made from DBBL gun in the incident commensurate the number of injuries found on the body of deceased and injured. 37. It is admitted fact that there was enmity between the parties. The admitted position of law is that enmity is a double edged weapon which can be a motive for the crime as also the ground for false implication of the accused persons. The existence of animosity between the accused and the witnesses may, in some cases, give rise to the possibility of the witnesses exaggerating the role of some of the accused or trying to rope in more persons as accused persons for the commission of the crime. Such a possibility is required to be ascertained on the facts of each case. In the present case witnesses are injured but they are relative and inimical witnesses. Though the presence of these witnesses on the spot cannot be doubted and this fact has also been admitted by the accused Dhani Ram (since died), yet it cannot be said that their testimony is wholly truthful. Thus, this fact cannot be ruled out that accused appellant Narendra was falsely implicated in the present case due to enmity. He has taken the ground of alibi but no evidence was adduced by him in his support. PW-1 and PW-2 both had reached the spot after hearing the shots, PW-3 had become unconscious after receiving injuries, the oral testimony of the said eye account witnesses on the point of participation of accused appellant Narendra is doubtful and the same is not supported with the medical evidence. Innocency of accused-appellant Narendra also finds support from the statement under Section 313 Cr.P.C. of accused appellant Dhani Ram (since died) and also from the statement of PW-7 Dr. O.P. Gupta. If the accused appellant Narendra had not made fire, the fact regarding his participation in committing the offence on the ground of common intention appears improbable, therefore, the provisions of Section 34 IPC are not attracted. The findings of the trial Court on the material points, i.e. participation of accused appellant Narendra in commission of the present offence, firing made by accused appellant Narendra, etc. are not correct and the same are illegal and perverse. The findings of the trial Court on the material points, i.e. participation of accused appellant Narendra in commission of the present offence, firing made by accused appellant Narendra, etc. are not correct and the same are illegal and perverse. The trial Court has not rightly appreciated the evidence available on record and reached to a wrong conclusion holding the accused appellants to be guilty for committing the murder of the deceased Km. Suman. The pleas taken by the accused appellants appear more probable in the matter. 38. Thus, taking into account the entire facts and circumstances of the case and considering the evidence available on record, we are of the view that the prosecution has not been able to establish the guilt of the accused appellant Narendra. Hence, the Court is inclined to grant benefit of doubt to the accused appellant on the ground of rule of caution. 39. In view of the above discussions, we are of the opinion that the prosecution has failed to establish the guilt of the accused appellant Narendra under Section 302/34 IPC and Section 307/34 IPC beyond reasonable doubt and to the satisfaction of the judicial conscience of the Court. So, the impugned judgement and order of conviction and sentence dated 10.5.1983, which has been sought to be assailed, call for and deserves, interference. The criminal appeal is liable to be allowed and the same is accordingly allowed. 40. The judgement and order of conviction and sentence dated 10.5.1983 passed by the trial Court is hereby set aside. The accused appellant Narendra is found not guilty for the offence punishable under Section 302/34 IPC and Section 307/34 IPC. He is acquitted of all the charges framed against him. He is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. 41. Let a copy of this judgement alongwith lower Court record be sent to the Sessions Judge, Bulandshahr for compliance. ———————