JUDGMENT Hon’ble Shashi Kant Gupta, J.—The aforementioned appeals have been preferred by the accused-appellants against the judgement and order dated 24.4.1981 passed by the IInd Additional Sessions Judge, Fatehpur in Sessions Trial No. 225 of 1980 (State of U.P v. Vijai alias Bangali and others) under Sections 147, 148, 302/149 IPC, Police Station Kotwali, District Fatehpur whereby all the accused appellants have been convicted and sentenced to undergo imprisonment for life for the offence punishable under Sections 302/149 IPC. The accused appellants namely Awadhesh Kumar Shukla, Ashok Kumar Awasthi, Harish Tewari and Shishupal Singh have been convicted for the offence punishable under Section 147 IPC and sentenced to undergo one year’s rigorous imprisonment and the accused appellants Vijai alias Bangali, Rudra Pal and Jagdish have been convicted for the offence punishable under Section 148 IPC and sentenced to undergo two year’s rigorous imprisonment. All the sentences have been directed to run concurrently. 2. At the outset, it is pertinent to mention here that during the pendency of this appeal, the appellant No. 3- Harish Tewari, appellant No. 5-Vijai alias Bangali and appellant No. 6- Jagdish (in Criminal Appeal No. 790 of 1981) have died. Accordingly, vide order dated 14.3.2014, this Court has abated the appeal in respect of the appellant No. 3- Harish Tewari, appellant No. 5-Vijai alias Bangali and appellant No. 6- Jagdish. 3. Now, we are proceeding to consider the present appeal (790 of 1981) in respect of rest of the appellants i.e. appellant No. 1- Awadhesh Kumar Shukla, appellant No. 2-Ashok alias Ashok Kumar Awasthi, appellant No. 4-Shishu Pal Singh and the connected appeal No. 789 of 1981 filed by the appellant - Rudra Pal. 4. The facts of the case as unfolded by complainant Rajesh Singh P.W. 1 aged about 18 years are that he is a resident of Hanumant Colony, Collectorganj, Fatehpur. Sri Hakim Singh, the deceased was his father. He was a Government Contractor for constructing bridges and roads. Sri Banshi Singh (Mausa of the complainant) also used to work with his father Hakim Singh. Rakesh is the younger brother of the complainant. Informant knows the accused persons namely Awadhesh Kumar Shukla, Ashok Kumar Awasthi, Harish Tewari, Shishupal Singh, Vijai alias Bangali, Jagdish and Rudra Pal (who are the residents of Fatehpur) from before the alleged occurrence. When this occurrence took place all these accused resided in Fatehpur. Rakesh is the younger brother of the complainant. Informant knows the accused persons namely Awadhesh Kumar Shukla, Ashok Kumar Awasthi, Harish Tewari, Shishupal Singh, Vijai alias Bangali, Jagdish and Rudra Pal (who are the residents of Fatehpur) from before the alleged occurrence. When this occurrence took place all these accused resided in Fatehpur. Accused Vijay Bangali and Shishupal Singh are real brothers and the friends of remaining 5 accused. When this occurrence took place he (informant-Rajesh) was a student of B-A Part I in the Mahatma Gandhi Degree College, Fatehpur. His younger brother Rakesh Singh was a student of Xth class in A.S. Inter College, Fatehpur. On 12.2.1980 when Rakesh Singh was going to his school, some quarrel took place between him and Rama Shankar Teli (DW.2) at about 9 A.M at Baheliyan Tola, Fatehpur. Rama Shankar and the appellant Rudrapal, who was also present there slapped him. When the complainant was returning from his college, he happened to meet his brother Rakesh Singh in the Mohalla Jwalaganj where he told the complainant that Rama Shankar Teli and accused Rudra Pal Yadava have slapped him. On reaching home, the complainant Rajesh Singh conveyed the incident to his father Hakim Singh. At this Hakim Singh and the complainant went to the house of the accused Rudrapal Yadava at about 12' O clock in the afternoon. Nobody was present in the house of Rudrapal. Hence they came back. On the same day at about 9 P.M, accused Vijay Bangali, Awadhesh Shukla, Jagdish Kahar, and Ashok Awasthi came to the house of the complainant and accused Vijay Bangali told his father (Hakim Singh) that Rudrapal Yadava wants to apologise to him and he should be forgiven. However, Hakim Singh said that he will be going to the shop of Mahmood Cycle Wala ‘tomorrow’ between 9 and 10 a.m., and he will talk to them there, whereupon the above mentioned four accused went back. The shop of Mahmood Motor Cycle Wala is situated at G.T. Road near Pahal Talkies. 5. On 13.2.1980 at about 7 A.M when Hakim Singh was leaving the house in the morning, he asked the complainant to reach the shop of Mahmood Motor Cycle Wala at 9 a.m. alongwith Rakesh. Hakim Singh also told Rajesh that he will reach there on a motor cycle. 5. On 13.2.1980 at about 7 A.M when Hakim Singh was leaving the house in the morning, he asked the complainant to reach the shop of Mahmood Motor Cycle Wala at 9 a.m. alongwith Rakesh. Hakim Singh also told Rajesh that he will reach there on a motor cycle. Accordingly, Rajesh, his younger brother Rakesh and their servant Verma reached the shop of Mahmood at about 9 a.m. when they reached there, they saw all the 7 accused standing at the mouth of the lane near Shiroman Bhawan. Appellant Vijay Bangali and his brother (Shishupal Singh) were armed with a hockey stick. Appellant Jagdish Kahar and Harish Tiwari were carrying iron rods. Appellants Awadhesh Shukla, Ashok Awasthi and Rudrapal Yadava were bare handed. 6. When Rajesh Singh, his brother and servant met the accused persons at the entrance of the lane, accused Vijai Bangali asked the complainant as to where his father was. He told them that he was about to reach there. Thereafter the Informant and his brother Rakesh singh stood near the shop of Mahmood. Soon thereafter, Hakim Singh and Banshi Singh also reached the spot on their Motor Cycle. Banshi Singh was sitting on the Pillion of the Motor Cycle and both of them were hanging their licensed guns on their shoulders. Hakim Singh Parked his motor cycle in front of the shop of Mahmood and then both of them went to the entrance of the lane, where the accused persons were standing. As soon as Hakim Singh and Banshi Singh reached there accused Vijay Bangali and Rudrapal rushed towards them and caught hold of the guns of Hakim Singh and Banshi Singh respectively. Appellant Shishupal Singh and Jagdish then dealt a hockey and iron rod blow respectively on the head of Hakim Singh and accused Jagdish Kumar, the remaining 5 accused grappled with Hakim Singh and Banshi Singh. Banshi Singh fell on the ground as a result of iron blow on the head, Hakim Singh on being hit on the head moved backward catching hold of his gun with one hand. Appellant Vijay Bengali too did not leave his grip over the gun of Hakim Singh. When Banshi Singh fell down, the appellant Rudra Pal Singh snatched his gun. Hakim Singh also fell down on the ground as a result of attack by the appellant Vijay Bengali. Appellant Vijay Bengali too did not leave his grip over the gun of Hakim Singh. When Banshi Singh fell down, the appellant Rudra Pal Singh snatched his gun. Hakim Singh also fell down on the ground as a result of attack by the appellant Vijay Bengali. As the informant side shouted, few people rushed to rescue them. Thereupon appellants Vijay Bengali and Rudrapal fired two shots in random to deter the crowd to rescue the victims. As a result of firing, amongst the crowd 5 or 6 persons who were advancing to rescue the victim were injured and others ran helter skelter to save their lives. Thereupon they assaulted Hakim Singh with the butt of the guns and lathi. Accused Ashok Awasthi picked up a brick from the spot and dealt two blows on the head of Hakim Singh. Accused Rudrapal Yadava assaulted Banshi Singh with the barrel as well with the butt of the gun. Accused Awadhesh Shukla assaulted the deceased Banshi Singh with a Hockey Stick. Thereafter, the accused Vijay Bengali and Rudrapal Yadava broke the guns of Hakim Singh and Banshi Singh and left them near their dead bodies. According to the complainant this occurrence was witnessed by him, his brother Rakesh Singh, servant Verma, Dharmpal Singh, Ramesh Singh and a few other persons. 7. After the accused appellants fled away, the complainant, his brother and their servant Verma reached the spot and found that Hakim Singh and Banshi Singh were already dead. The complainant left Rakesh and servant Verma on the spot and went to Kotwali, Fatehpur. 8. The report of the complainant was taken down by H.C. Prash Ram Giri PW5 on 13.2.1980 at 9.50 a.m. Sri Giri has stated that chick report Ex. Ka. 1 is in his hand writing and was written on being dictated verbally by the complainant and he had read it over to him and then obtained his signatures on it. A case under Section 147, 148, 302/149 I.P.C. was registered by him against the accused, named in the FIR by the complainant and he made an entry in the G.D. at Sl. No. 9. The original entry has been proved by this witness and he has also filed its true copy Ext. K. 5 which is in his own handwriting and bears his signatures. No. 9. The original entry has been proved by this witness and he has also filed its true copy Ext. K. 5 which is in his own handwriting and bears his signatures. He has also proved the G.D. Entry dated 14.2.1980 written at 22.55 hours by S.I. Jagmohan Singh, I.O. at Sl. No. 41 with regard to deposit of 11 sealed bundles in the Mal Khana of the police station after his return from the spot. Sri Prash Ram Giri has filed and proved its true copy Ex. Ka-6. 9. The complainant has identified the clothes of the deceased Hakim Singh which he was wearing at the time of occurrence. These clothes are Exts. 1 to 9. He has also identified the broken gun Ex. 10 in two Parts as the gun of his father. He has also identified the Newar belt containing 10 live cartridges Ext. 11 belonging to his father. He has also identified the clothes and shoes etc. Exts. 12 to 16 of deceased Banshi Singh and also a single barrel broken gun(in two parts) Ex. 7 belonging to Banshi Singh deceased. 10. The complainant has stated that their servant Verma had disappeared after about 8 to 10 days from the date of the occurrence. His whereabouts could not be known despite his best efforts. He also stated that Dharam Singh and Ramesh Singh R/o village Mahna an eye-witnesses of this occurrence were not prepared to give any evidence against the accused. 11. S.I. Jagmohan Singh was present at the Police Station and the investigation was entrusted to him. He took some constable with him and came to the spot in a Government Jeep alongwith complainant at about 11 a.m.. He found a sufficiently huge crowd standing there surrounding the dead bodies of Hakim Singh and Banshi Singh that were lying at the spot. Sri Jag Mohan Singh tried to control the crowd and then appointed Surendra Pal Singh, Ram Sajiwan Singh etc. 5 Panchs and conducted the inquest on the dead body of Hakim Singh and prepared inquest report Ex.Ka-14, sketch of the dead body- Ex. Ka 15 and challan of the dead body- Ex. Ka 16. 12. After this Sri Jag Mohan Sing I.O. conducted the inquest on the dead body of Banshi Singh and prepared inquest report Ex. Ka 19 sketch of the dead body Ex. Ka 15 and challan of the dead body- Ex. Ka 16. 12. After this Sri Jag Mohan Sing I.O. conducted the inquest on the dead body of Banshi Singh and prepared inquest report Ex. Ka 19 sketch of the dead body Ex. Ka 20 and the challan of the dead body Ex. Ka 21 and sealed the dead body in a white sheet of cloth. Both the dead bodies were given in the custody of Constables Sri Shyam Tewari and Virendra Singh for post-mortem examination. Sri Jag Mohan Singh found a lot of blood lying on the coal Tar Road. He took sample of blood stained and simple piece of coal tar-carpet of the road and sealed them in two separate small tins and prepared their Memo Ex. Ka. 23. The Investigating officer also took in police custody a brick (which was very old and broken) Ex.21 and a brick bat Ex.22 from near the dead body of Hakim Singh. He sealed the broken brick and the brick bat in the presence of the witnesses in a bundle and prepared their memo Ex. Ka.24. 13. Thereafter the Investigating Officer took in police possession a broken S.B.B.L. Gun Ex.10 which was lying near the dead body of Hakim Singh and also a newar belt containing 10 live cartridge (Exts. 1/1 to 10) He also found an empty cartridge in the barrel of the said gun which has been identified as Ex. 23 by the I.O. The butt of the gun had been broken into two pieces. He after preparing Memo Ex. Ka.25 of all these articles sealed in the presence of the witnesses. Thereafter he took samples of blood stained and simple earth from near the dead body of Banshi Singh and prepared their Memo. Ka 26. Sri Jag Mohan Singh also recovered a broken gun Ex.10 of bore No. 9295 of 1976. AN empty cartridges was found present in the barrel of this gun also and it has been marked Ex.26. The barrel of this gun was de-shaped. Sri Jagmohan Singh sealed the gun in the presence of the witnesses and prepared their Memo. Ka. 26. 14. Thereafter, Sri Jagmohan Singh, recorded the statement of the complainant Rajesh Singh at the spot and inspected the spot and prepared a site plan Ex. Ka 32. He also recorded the statements of Rakesh Singh, Verma s/o Bachu Dhobi, eye-witnesses of the occurrence. Ka. 26. 14. Thereafter, Sri Jagmohan Singh, recorded the statement of the complainant Rajesh Singh at the spot and inspected the spot and prepared a site plan Ex. Ka 32. He also recorded the statements of Rakesh Singh, Verma s/o Bachu Dhobi, eye-witnesses of the occurrence. 15. The post-mortem examination on the dead body of Hakim Singh was conducted by Dr. J.S. Rai on 14.2.1980 at 10.30 a.m. According to his estimates the age of the deceased Hakim Singh was about 45 years and his death had occurred about a day before. The body was of moderately strong built. Rigor mortis had passed off from the upper extremities but was present in the lower extremities. Blood clots were present on the face and the brain matter had come out. The eyes were half open. Dr. Rai found the following 5 anti-mortem injuries on the dead body of Hakim Singh. (i) Lacerated wound 3-3/4" X ¾: x brain deep on the back and left side of scalp 3-1/3" from the left ear. The occipital bone was fractured. (ii) Lacerated wound 4" X ½” x bone deep on back of head-1" towards right to injury No. 1. (iii) Abrasion 2 ½ X 2" on the left side of fore head with fracture of frontal bond. (iv) Lacerated wound 1/2" X 1/3 “ x skin deep on the outer and upper right leg. (v) Abrasion 3/4" x 1/2" on the back of the upper chest 4" from the right shoulder joint. On internal examination of the dead body of Hakim Singh Dr. Rai found that the left temporal bones and the occipital bone were fractured. The brain and its membranes were lacerated and clotted blood was present. The base of the skull was fractured. About 30 oz of semi digested food was present in the stomach. Little digested food was present in the small intestine. The large intestine was empty. In the opinion of Dr. Rai, the cause of death was shock and haemorrhage resulting from the ante-mortem injuries. He has proved the post-mortem examination reports/Ex. Ka 33. 16. On the same day Dr. Rai had conducted the post-mortem examination on the dead body of Banshi Singh. It had been brought duly sealed by constable Sri Shyam Tewari. The age of the deceased was about 35 years and his death had occurred about a day before. He has proved the post-mortem examination reports/Ex. Ka 33. 16. On the same day Dr. Rai had conducted the post-mortem examination on the dead body of Banshi Singh. It had been brought duly sealed by constable Sri Shyam Tewari. The age of the deceased was about 35 years and his death had occurred about a day before. The body was of average built and was muscular. The rigor mortis had passed off from the upper extremities and was present in the lower extremities. The Brain matter and blood clots were present on the chest. Eyes were half open. Dr. Rai found the following three ante-mortem injuries on the dead body of Banshi Singh : (a) Lacerated wound 5" X 1 ½ x bone deep left side of skull 1 ½ from left ear-oblique fracture of temporal and parietal bones was present. (b) Lacerated wound 1 ½ x ½ x skin deep just behind the left ear oblique. (c) Lacerated wound 13/4" x ½ x skin deep on middle and top of head. Oblique 3 ½ from the base of nose. On internal examination of the dead body, Dr. Rai found the following important things. The left temporal parietal and frontal bones were fractured. The brain and its membrane were lacerated and clotted blood was present on the brain matter. About 5 oz. of semi- digested food was present in the stomach. A little digested food was present in the small intestine. The large intestine was empty. In the opinion of Dr. Rai the cause of death was shock and haemorrhage resulting from the ante-mortem injures. He has proved the post-mortem examination report of Banshi Singh as Ex. Ka 34. 17. The injuries of deceased Jashwant Singh, Shakil Ahmad, Chote Lal, Shiv Kant and Ram Babu were examined by Dr. V.K. Tripathi in the District Hospital, Fatehpur on 13.2.1980 between 9.35 a.m. and 10.20 a.m.. He found the following injury on the person of Jashwant Singh (deceased) Gun shot wound of entry 3 in number. Size 1 cm. X 1 cm 1 ½ x 1 cm, 2 cm x 1 1/2cm attached with abrasion transverse 6 cm x 1 ½ x depth under observation, on the right side of lower half at abdomen in area of 11 cm x 3 cm. No blackening and tattooing was present. Size 1 cm. X 1 cm 1 ½ x 1 cm, 2 cm x 1 1/2cm attached with abrasion transverse 6 cm x 1 ½ x depth under observation, on the right side of lower half at abdomen in area of 11 cm x 3 cm. No blackening and tattooing was present. Fresh bleeding was present The injury was kept under observation and its X-ray was advised. It was caused by some fire-arm and was fresh at the time of examination. 18. Dr. Tripathi found the following injuries on the person of Shakil Ahmad;- Gun shot wound of entry 1 ½ cm x 1 cm muscle deep on the right deltoid region of right upper arm. No blackening or tattooing was present. The injury was kept under observation and its X-ray was advised. It was caused by some fire-arm and was fresh. 19. He found the following injury on the person of Chhote Lal; Gun shot wound transverse 1 ½ cm. X ¾ cm x muscle deep on the medial side of right knee. Fresh bleeding was present. No blackening or tattooing was present. The injury was kept under observation and its X-ray was advised. It was caused by some fire- arm and was fresh. 20. Dr. Tripathi found the following two injuries on the person of Shiva Kant PW 10: (I) Gun shot wound of entry 1 cm x 1 cm depth. Kept under observation without blackening and tattooing on the medial side of right knee joint. Fresh bleeding was. (ii) Gun shot wound of exit 1 ½ cm x 1 cm on the right half middle 4 cm below the knee. Injury No. 1 and 2 were inter communicating. It was kept under observation and its X-ray was also advised. The injuries were caused by some fire-arm and were fresh at the time of examination. 21. Dr. Tripathi found the following injury on the person of Ram Babu : Gun shot wound of entry 1 cm x 1 cm x depth on the lateral aspect of lower part of right thigh, 6 cm above the knee. Fresh bleeding was present. No blackening or tattooing was present. It was kept under observation and its X-ray was advised. This injury was also caused by some fire-arm and was fresh. Dr. Fresh bleeding was present. No blackening or tattooing was present. It was kept under observation and its X-ray was advised. This injury was also caused by some fire-arm and was fresh. Dr. Tripathi has given his statement on the basis of the entries in the Medico-Legal Registrar of the District Hospital which were in his hand writing. He has proved Exts. Ka-9 to Ka 13 which are the true copies of the said injury reports. 22. The post-mortem examination on the dead body of Jashwant Singh S/O Indal Singh, R/o Chandiyana, P.S. Kotwali, Fatehpur was conducted by Dr. P.P. Gupta PW 2 on 21.2.1980 at Kanpur. In the opinion of Dr. Gupta, the age of the deceased was about 35 years and his death had occurred on 20.2.1980 at 6.10 in the L.L. R Hospital Kanpur. The body was of average built. Rigor morits was present on the whole body. Froth was coming out from the nostrils and the eyes were half open. 23. Dr. Gupta found the following ante-mortem injuries on the dead body of Jashwant Singh;- (I) Abrasion 6 cm x 4 cm on the right side of the abdomen 18 cm below the right nipple. (ii) 3 septic wounds in an area of 3 cm x 2 cm on the lateral aspect of abdomen each measuring 1 cm. X 1 cm x cavity deep. (iii) 3 abrasions in an area of 9 cm. X 2 cm on the back of the right side. (iv) Surgical wound with 5 stitches and a corrugated rubber drain present on the right side of the abdomen. On the opening stitches, the size was 5 cm x 2 cavity deep. (v) Surgical wound situated Rt. Para-unblical region with 11 stitches. Size was 25 cm x 3 cm x cavity deep. (vi) Surgical wound with 1 stitches and a corrugated rubber drain on the left side of the abdomen. On opening the stitches size was 1 cm x ½ cm x cavity deep. (vii) Cut open done on both the legs. On internal examination Dr. Gupta found that Peritoneum was lacerated but stitched. Pus was present in it. Peritoneum on the right side was perforated and stitched. Pus was present in it also. The small intestine was stitched at a distance of 40 C.M from the acumen. The large intestine was half full. In the opinion of Dr. On internal examination Dr. Gupta found that Peritoneum was lacerated but stitched. Pus was present in it. Peritoneum on the right side was perforated and stitched. Pus was present in it also. The small intestine was stitched at a distance of 40 C.M from the acumen. The large intestine was half full. In the opinion of Dr. Gupta the cause of death was septi-ceamia as a result of the ante-mortem injuries. He had recovered one pellet from the muscle of the back on the right side. He had sealed that pellet in an envelop and entrusted the same to the constables. Note : A big pellet was taken out from a sealed packet which was identified by Dr. Gupta and then marked Ex. (viii) Dr. Gupta has also proved the post-mortem examination report Ex. Ka.2. The Investigating Officer after recording the statements of the witnesses and collecting the evidence submitted the charge-sheet against the accused appellants. The concerned Magistrate took the cognizance in the matter and committed the case for trial to the Sessions Court. The accused appeared and charges were framed against them. 24. The prosecution has examined 12 witnesses in this case. P.W. 1- Rajesh Singh is the son of the deceased Hakim Singh. He is the first informant and claims himself to be the eye-witness of the scene. His testimony has been discussed in the earlier part of the judgement. He has supported the prosecution story. P.W. 2- Dr. P.P. Gupta, who conducted the post-mortem of the deceased Jaswant Singh, brother of the appellants Vijai Bangali and Shishupal Singh. PW 3 Dr. S.N. Gupta is reader in surgery in the Medical College, Kanpur. He had performed the operation of the injuries of Jashwant Singh (deceased) in the emergency Department of the G.S.V.M Medical College Kanpur at 2.30 a.m. and 14.3.1980. Dr. Gupta has said that injured Jashwant Singh was admitted in the Medical College on 13.2.1980 at 11.45 p.m.. He has also stated that the injuries which he found on the person of Jashwant Singh could be caused by fire-arm,. Dr. Gupta has stated from the entries in the Bed-Head Ticket of Jashwant Singh, which he had brought with him. He has also stated that the death of Jashwant Singh occurred in the Hospital on 20.2.1980 at 6.10 p.m. Dr. Gupta did not examine the external injuries of Jashwant Singh. PW4- Shri Niwas. Dr. Gupta has stated from the entries in the Bed-Head Ticket of Jashwant Singh, which he had brought with him. He has also stated that the death of Jashwant Singh occurred in the Hospital on 20.2.1980 at 6.10 p.m. Dr. Gupta did not examine the external injuries of Jashwant Singh. PW4- Shri Niwas. He is a formal witness and has proved the written intimation Ex.Ka-3 of the death of Jashwant Singh, received by him at P.S. Swarup Nagar Kanpur on 20.2.1980 and had sent an intimation (written) Ex. Ka 4 on its basis and had handed it over to constable Moharrir Sharda Prasad Tewari. PW6 H.C. Rajendra Singh He is also a formal witness and was posted at P.S. Kotwali Fatehpur. He has stated that on 3.6.1980 he had sent 12 sealed bundles containing the case property of this case to Sadar Malkhana, Fatehpur through constable Mahabali alongwith a specimen of the seal, for being deposited there. He has proved the G.D entry No. 1 made at 6.45 a.m. by him on that date in this regard and has also filed and proved its true copy Ex. Ka-6. This witnesses has stated that so long as the case property of this case remained in the P.S. Kotwali, it remained in tact and no body was allowed to tamper with it. PW 7 Rakesh Kumar Singh He is the real younger brother of the complainant and son of deceased Hakim Singh and has corroborated the statement of the complainant. PW 8 Constable Virendra Singh He is also a formal witness and has said that on 13.2.1980 he alongwith constable Sri Shyam Tewari had gone to the spot with I.O. Sri Jag Mohan Singh. The two constables were entrusted with the sealed dead bodies of Hakim and Banshi Singh respectively and had taken them to the Mortuary Fatehpur for post-mortem examination. He has also deposed that the inquest papers and specimen of seal etc, relating to the dead body of Hakim Singh were entrusted to him while the inquest papers and the specimen of seal etc. relating to the dead body of Banshi Singh were entrusted to C/Shyam Tewari. He has further stated that so long as these two dead bodies remained in their custody their seals remained in tact and no body was allowed to tamper with them. relating to the dead body of Banshi Singh were entrusted to C/Shyam Tewari. He has further stated that so long as these two dead bodies remained in their custody their seals remained in tact and no body was allowed to tamper with them. PW 10 Shiva Kant He was the member of the crowd, who also received the gun shot injuries in this occurrence. He has, however, not supported the prosecution version and was, therefore, declared hostile and was cross-examined by the learned counsel for the State with the leave of the Court. His testimony would also be discussed at the appropriate stage later on. 25. The accused persons have denied the prosecution allegations and have pleaded that they have been falsely implicated in this case on account of enmity. 26. Appellant Vijai alias Bangali has come forward with a defence version in his statement recorded under Section 313 Cr.P.C wherein he has stated that on the day of occurrence at about 9.a.m. his elder brother Jashwant Singh, who lived in Calcutta, had come to Fatehpur due to illness of his father and on the fateful day had gone to purchase a cigarette from the G.T. Road shop. Later on, he came to know that his brother Jashwant Singh had been shot at the G.T. Road by Hakim Singh and Banshi Singh. Accordingly, he rushed to that place and took his injured brother to District Hospital, Fatehpur and got him admitted. He has also stated that when he reached the spot, a large number of persons were present there and were beating Hakim Singh and Banshi Singh. The police has acted in a partisan way and instead of investigating into the occurrence of the murder of his brother it has falsely implicated him (Vijai Bangali) and his brother Shishu Pal Singh because S.I. Jag Mohan Singh, Investigating Officer of this case, is a friend and relation of Hakim Singh deceased. 27. Accused appellant Awadhesh Kumar Shukla has stated that his brother Sri Vijai Kumar Shukla is a press correspondent. He had published several news items against S.I. Jagmohan Singh and the Kotwali Police and due to his enmity with his brother, he has been falsely implicated in this case. 28. Accused appellant Ashok Awasthi has stated that his house is situated in front of Kotwali, Fatehpur. He had published several news items against S.I. Jagmohan Singh and the Kotwali Police and due to his enmity with his brother, he has been falsely implicated in this case. 28. Accused appellant Ashok Awasthi has stated that his house is situated in front of Kotwali, Fatehpur. The police of P.S. Kotwali had cited him as witness for the prosecution in a case in which certain persons had been challenged for “Majahmat” with the police. He refused to give evidence for the prosecution and that is why he has been falsely implicated in this case. He has further stated that he had heard that Hakim Singh and Banshi Singh deceased were assaulting one Rama Shankar Teli at the G.T. Road. They were armed with guns and were dealing fatal blows to Rama Shankar Teli. Certain persons asked them not to do so whereupon both of them fired shots from their guns towards those persons resulting injuries to several persons. One of the injured later on died. The crowd present at the spot assaulted Hakim Singh and Banshi Singh with lathis and dandas and killed them at the spot. 29. Accused appellant Harish Tewari has stated that he has been falsely implicated due to enmity and the witnesses have deposed against them on account of the pressure of police. 30. Accused appellant Rudra Pal Yadav has stated that Hakim Singh was a short tempered man. Hakim Singh and Banshi Singh were assaulting Rama Shankar Teli at the G.T. Road near Pahal Picture House. The occurrence took place when certain persons tried to save Rama Shankar. Some shots were fired by Hakim Singh and Banshi Singh causing injuries to the member of the crowd and consequently the members of the crowd in the fit of rage assaulted the victim Hakim Singh and Banshi Singh. 31. Accused appellant Jagdish Kahar has stated that prior to this occurrence he used to work for Hakim Singh as a Kahar. Hakim Singh was a very short tempered man. Prior to this occurrence a feast was given by Hakim Singh to certain persons including police officers and S.I. Jagmohan Singh. He refused to pick up and throw the “Pattals” of the persons. On this Hakim Singh showed his temper to him and said that he has insulted him (Hakim Singh) in the presence of his guest. Hakim Singh abused him and beat him with kicks and fists. He refused to pick up and throw the “Pattals” of the persons. On this Hakim Singh showed his temper to him and said that he has insulted him (Hakim Singh) in the presence of his guest. Hakim Singh abused him and beat him with kicks and fists. He stopped working at the place of Hakim Singh S.I. Jagmohan Singh called him at the police station and threatened him that he will not be allowed to live in the town if he did not go to work at Hakim Singh place. He has further stated that prior to this case, he did not know accused Vijai Bangali and others. 32. Accused appellant Shishupal Singh has stated that the occurrence did not take place in the manner alleged by the prosecution. In fact his elder brother Jashwant Singh suffered gun shot injuries at the hands of Hakim Singh and Banshi Singh and some other persons were also injured. The police has deliberately omitted the name of the injured Particularly Jashwant Singh from the report. 33. The accused persons have examined 4 persons in their defence. They are— DW 1 Sri Ram Vishal Asst. Judicial Assistant to the District Magistrate Fatehpur. He has filed the special report Ex. Kha 2 of the occurrence which was received by the District Magistrate, Fatehpur and it bears the endorsement and signature of the then District Magistrate Sri N.S. Ansari dated 15.2.80 DW-2 Rama Shankar. He is an injured witness, who suffered injuries in the incident. He has supported the defence version. We will advert to the details of his statement when we will examine the prosecution evidence, in the light of the defence argument and circumstances of the case. D.W 3 H.C. Rajendra Bahadur Singh He was examined by the defence with regard to the special report allegedly sent to the District Magistrate, Fatehpur. This witness has stated that the said Fard challan is not traceable in the record of Kotwali Fatehpur. DW.4 Dr. R.K. Katiyar had examined the injury of Ram Shankar DW 2 on 17.2.1980 in the District Hospital, Fathepur at 9 p.m. and had founded the following three injuries on his person : (I) Lacerated wound on the right side scalp 3 cm x 1 ½ cm x scalp deep, 7 cm above the right ear. Margins were irregular and averted, granulated tissue and slough were present at the base. Margins were irregular and averted, granulated tissue and slough were present at the base. It was kept under observation and X-ray of skull was advised. (II) Contusion on the left side back 3 cm x 1 ½ cm near the mid line 14 cm below the inferior angle of left scapula. Brownish in colour. (III) Abrasion with contusion on the dorsal of left thump- scab present. Brown in colour. In the opinion of Dr. Katiyar injuries No. 2 and 3 were simple. Injury No. 1 was kept under observation and its X-ray was advised. All the three injuries were caused by some blunt weapon and were about four days old at the time of examination. He has filed and proved the true copy of the original injury report and the same has been marked as Ex. Kha.4. 34. The defence has also tendered in evidence the dying declaration of Jashwant Singh deceased and it has been marked as Ex. Kha. 3. This document was produced in the Court by the prosecution with the leave of the Court but the prosecution did not prove it formally, at the trial. The defence has also tendered a certified copy of a charge-sheet dated 2.2.1980 of case No. 2190 of 1980 State v. Sunder Lal and others, of P.S. Kotwali, Fatehpur. It has marked as Ex. Kha. 1 as it is a certified copy obtained from the judicial record. 35. Learned counsel for the appellants has contended that a false and fabricated story has been set up by the prosecution and the Court below has illegally and arbitrarily without appreciating the evidence on record properly, convicted the appellants/accused persons. While referring to the findings recorded by the Trial Court acquitting the appellants from the charges for killing Jaswant Singh and injuring the other persons, who were the members of the crowd has submitted that the findings recorded by the Court below is self contradictory as the appellants have been acquitted on the first count however has illegally convicted on the other count. 36. 36. It has been further contended by the learned counsel for the appellant that the deceased Hakim Singh and Banshi Singh were accompanying with their sons carrying their gun with them and it is very strange that P.W. 1 and P.W. 7 will not come forward to rescue their Mausa and Father when their guns were allegedly being snatched from them and being beaten by the crowd. He further stated that since both P.W. 1 and P.W. 7 are college going students, there was no occasion for them to miss their college. Their presence on the place of occurrence alongwith the servant Verma itself shows that Hakim Singh and Banshi Singh had gone there with full preparation to assault the accused side to take revenge as on the earlier day Rakesh son of the deceased Hakim Singh was beaten by Rama Shankar Teli and Rudra Pal. Learned counsel for the appellants has further contended that the First Information Report is ante timed which was lodged by the P.W. 1. The distances of Kotwali, from the place of occurrence is about four furlongs and the FIR was written by the concerned police constable on being dictated by P.W. 1. It has been further contended that the inquest report was prepared on 12.30 p.m. thereafter the dead body was handed over to the concerned police constable for post-mortem but admittedly the dead bodies of the victims reached the hospital mortuary around 9 O’clock and even if the explanation given by the P.W. 1 Rajesh Singh that the truck broke down on the way is accepted, there was absolutely no explanation for the delay of several hours in the hospital especially when the hospital was situated nearby. 37. It has been further submitted by the learned counsel for the appellants that the accused persons must not be aware that the guns of both the victims were loaded, as such, there was no occasion for them to snatch the guns from them. While referring to the statement of the Doctor, who had proved the injuries of Rama Shankar has opined that two of the injuries (injury Nos. 2 and 3) can be self suffered but it would have caused a lot of pain in the body but for the injury No. 1, he has categorically stated that injuries caused to him cannot be self suffered (self inflicted). 2 and 3) can be self suffered but it would have caused a lot of pain in the body but for the injury No. 1, he has categorically stated that injuries caused to him cannot be self suffered (self inflicted). He further submitted that the Court below has given frivolous reasons for discarding the testimony of Shivakant, the injured, who has turned hostile only on the ground that he might not have supported the case of the prosecution due to fear. He further submitted that the prosecution has not given any explanation as to how Jaswant Singh and other person suffered fire-arm injuries. 38. Per contra, learned A.G.A has supported the case of the prosecution and has stated that the First Information Report was lodged promptly by the own son of the victim and the body could not be carried to the mortuary promptly because of the fact that some problem had occurred in the truck and much time was spent in fixing the said problem. He further submitted that the presence of P.W. 1 and P.W. 7 at the place of occurrence is very natural. He further submitted that no explanation has been given by Rama Shankar Teli for not lodging the FIR or getting himself medically examined immediately after the incident. He further submitted that since Shivakant has turned hostile, no reliance can be placed on his testimony. He further submitted that the deceased Jaswant Singh, in his dying declaration has not named anybody. 39. Heard Sri Gopal Chaturvedi, Senior Counsel assisted by Sri Shishir Tondan, Sri Rakesh Kumar Mathur, Sri Amit Kumar Srivastava learned counsel for the appellants, Sri Rajeev Gupta, learned A.G.A appearing on behalf of the State and perused the record. 40. In the present matter, three persons have died and around six persons have received injuries. One of the deceased Jaswant Singh, was the real brother of the appellants Vijay Bangali and Shishupal Singh. The injured Rama Shankar has been produced as D.W. 2 on behalf of the defence who supported the case of the defence. Shiva Kant, who had also received the gun shot injury in the occurrence has been produced as P.W. 10 but he has not supported the prosecution version, as such, was declared hostile and was cross-examined by the prosecution side. Shiva Kant, who had also received the gun shot injury in the occurrence has been produced as P.W. 10 but he has not supported the prosecution version, as such, was declared hostile and was cross-examined by the prosecution side. The prosecution has produced two more other witnesses of fact namely Rakesh (informant) and Rajesh as P.W. 1 and 7, who are the own sons of the deceased Hakim Singh. They have supported the case of the prosecution, however, the aforesaid witnesses P.W. 1 and 7, who were present at the place of occurrence alongwith their servant Verma did not suffer even a scratch nor made any attempt to rescue their father and Mausa (maternal uncle) when they were being allegedly beaten mercilessly by the accused side. Their presence on the spot was challenged by the defence in the Court below as well as before this Court on the ground that they are partisan and biased (interested) witness being the sons of the deceased Hakim Singh. 41. The time, place and date of the alleged occurrence is not disputed. There is a dying declaration also on the record of Jaswant Singh, who has not identified the assailants who caused fire-arm injury. The prosecution has not produced any other injured person except P.W. 10- Shiva Kant (who has not supported the prosecution version) who sustained injuries during the incident. The prosecution has also not produced any of the resident or shopkeeper of the vicinity where the incident took place, although the incident had taken place in a broad day light on the G.T. Road, where several persons had gathered and several shops and houses were there in the near vicinity. None of the injured who has examined before the Court or in their statement under Section 161 Cr.P.C or in their testimony before the Court have named the appellants of causing injury or committing murder of the victims. While on the other side two injured witnesses namely Shiva Kant P.W. 10 and Rama Shanker Teli D.W. 2 have supported the defence version, as such, two witnesses of fact P.W. 1 and P.W. 7, who are the sons of the victims are pitted against the testimony of the two injured witnesses P.W. 10 Shiva Kant and D.W. 2- Rama Shanker Teli, who have supported the defence version. 42. 42. It is notable that Jaswant Singh, who was the real brother of the accused Vijay Bangali and Shishupal Singh was admitted to the local hospital for medical treatment and in his dying declaration he has stated that all of a sudden a shot was fired at the crowd which hit him but he could not identify the assailants, as he belongs to Calcutta and had come to Fatehpur to see his ailing father. Later on, Jaswant Singh was referred to the Kanpur Hospital where he ultimately succumbed to his injuries. 43. In the present case, the appellants were prosecuted inter alia for forming an unlawful assembly for committing the murders of Hakim Singh, Banshi Singh and Jaswant Singh (brothers of the appellants) and also for making an attempt on the lives of Shakil Ahmad, Chhote Lal, Shiva Kant Tripathi (P.W. 10) and Ram Babu on 13.2.1980 at about 9.30 a.m. in Mohalla Mahar at G.T. Road, Fatehpur. However, all the appellants were acquitted of the charge under Section 302/149 IPC for the alleged murder of Jaswant Singh and also of the charge under Section 307/149 IPC for having allegedly made an attempt on the lives of the four injured persons. 44. At this stage, it is very relevant to extract the finding of fact record by the Trial Court while acquitting the appellants, which reads as under : “Upon a careful consideration of the evidence on record and the circumstances of the case, in the light of the rulings relied upon by both the parties, we have reached the conclusion that the prosecution has succeeded in substantially establishing its case against all the 7 accused, but for the version that the two shots, which resulting gun shot injuries to 5 person, out of whom Jashsant Singh later on died in the L.I.R. Hospital Kanpur were fired by accused Vijai alias Bangali and Rudrapal. This part of the prosecution version is not far from doubt and it is difficult to say with a reasonable amount of certainty that this version of the prosecution has been established beyond and shadow of doubt. The reason that the defence version in that regard, viz, that two shots were fired by Hakim Singh and Banshi Singh deceased, is also a probable version although that too is not free from doubt. The reason that the defence version in that regard, viz, that two shots were fired by Hakim Singh and Banshi Singh deceased, is also a probable version although that too is not free from doubt. It is well-settled that it is the duty of the prosecution to prove such part of its case beyond shadow of doubt. It is not the duty of the defence to establish its contention with same rigor of proof as is expected of the prosecution. It is enough for the defence to show that the prosecution story or any part of it is not free from doubt or to show that the defence version of the occurrence of a part there of is also a probable version. Once the Court reaches the conclusion that a part of the prosecution version is not free from doubt and the defence version in that regard is also a probable version, though not necessarily, the benefit must go to the accused and that being so the accused persons cannot be held guilty of committing the murder of Jashwant Singh deceased, own brother of accused Vijai alias Bangali and Shisupal Singh and of making an attempt on the lives of the other four injured whose name have already been given earlier. However, so far as the charges under Section 147, 148, and 302/34 I.P.C. on two counts (for the murders of Hakim Singh and Banshi Singh) are concerned, I am of the opinion that the prosecution has established all these charges against all the seven accused persons beyond any shadow of doubt and they must be convicted on these charges and punished, accordingly.” 45. Now this Court has to examine whether Hakim Singh and Banshi Singh were killed by the appellants as alleged by the prosecution in the light of the evidence available on record and the finding recorded by the Court below while acquitting the appellants of the charge under Section 302/149 IPC for the murder of Jaswant Singh and also for the charge under Section 307/149 IPC having allegedly made an attempt on the lives of the four injured persons. The prosecution produced three eye-witnesses of the incident P.W. 1 Rajesh Singh, P.W. 7-Rakesh Singh and P.W. 10 Shivakant (injured). The prosecution produced three eye-witnesses of the incident P.W. 1 Rajesh Singh, P.W. 7-Rakesh Singh and P.W. 10 Shivakant (injured). Out of the three eye-witnesses of the prosecution only two witnesses have supported the prosecution story and the third witness was declared hostile as he supported the defence version both in his examination in chief and cross-examination. 46. P.W. 1- Rajesh Singh and P.W. 7- Rakesh Singh are the college/school going students. The testimony of the informant P.W. 1 Rajesh Singh has already been referred to at length in the earlier part of the judgment. The incident has occurred at 9.30 a.m. and report of the complainant was taken down by H.C. Prash Ram Giri PW5 on 13.2.1980 at 9.50 a.m. Sri Giri has stated that chick report Ex. Ka. 1 is in his hand writing and was written on being dictated verbally by the complainant and it was read over to him and then obtained his signatures on it whereby case under Section 147, 148, 302/149 I.P.C. was registered by him against the accused, named in the FIR by the complainant. The distance of the Police Station from the place of incident is said to be four furlongs. It has not come on the record whether the informant went on foot to Police Station or on vehicle. On the basis of the First Information Report, the Investigating Officer alongwith other police personnels reached the spot at about 11 a.m. and at around 12.30 p.m. Panchanama, was conducted. According to the Investigating Officer the dead body was sealed in the afternoon however it was sent by truck at around 9 p.m. in the night to the Mortuary, which was situated inside the Sadar Hospital, Fatehpur. 47. One of the main contentions of the learned counsel for the appellants is that the First Information Report is ante timed. In this regard it is submitted that the incident had occurred at about 9.30 a.m. and the distance of the police station was around 4 furlongs from the place of the incident as such, the First Information Report could not have been registered within 20 minutes of the occurrence on the oral dictation of a student, who was hardly about 17 years old at the time of the incident. In support of his contention, learned counsel for the appellants has stated that there is material contradiction in the prosecution story. In support of his contention, learned counsel for the appellants has stated that there is material contradiction in the prosecution story. P.W. 8- Constable Virendra Singh has categorically stated that he alongwith another constable had taken the dead bodies by truck at 1 p.m. on the date of incident and they reached the Mortuary about 9 p.m. which was merely 1-1/2 furlongs from the place of the incident. 48. It has also been stated that the truck broke down on the way and hence took around 1-2 hours for fixing the problem and thereafter they again proceeded to the Mortuary at about 3-4 p.m.. When P.W. 8 specifically asked by the defence counsel as to why there was so much delay in reaching the Mortuary, he kept quite and did not answer the question and failed to give any explanation in this regard. The record shows that although the dead bodies of the deceaseds were brought to the Mortuary at around 9-10 p.m. but the relevant papers connected with the case were handed over to the concerned Doctor on the next day. There is no plausible explanation from the side of prosecution as to why the dead body of the deceaseds reached the Mortuary in the night around 9-9.30 p.m., when admittedly according to the P.W. 8 Constable Virendra Singh, the dead bodies of the deceaseds were entrusted to him and the other constable at about 1 p.m.. It is unbelievable that they would take more than 8 hours to carry the dead bodies by truck to the Mortuary which according to them was hardly 1-1/2 furlongs from the place of incident and the papers connected with the dead bodies were handed over to the concerned Doctor on the next day. 49. This apart, the prosecution has not been able to explain the delay relating to the receipt of the special report by the concerned authorities including the District Magistrate as his endorsement was of 15.2.1980 i.e. after two days. The prosecution did not produce the original record of the police station relating to receipt and dispatch of FIR. The lodging of First Information Report within 20 minutes of the incident on the oral dictation at the police station which was four furlongs from the place of incident creates some doubt about the actual time of lodging of the FIR. The prosecution did not produce the original record of the police station relating to receipt and dispatch of FIR. The lodging of First Information Report within 20 minutes of the incident on the oral dictation at the police station which was four furlongs from the place of incident creates some doubt about the actual time of lodging of the FIR. The aforesaid facts as narrated above definitely creates deep suspicion about the veracity of the prosecution story. 50. There is another aspect of the matter which requires consideration and that is this. It is the case of the prosecution that on 12.2.1980 at about 9 P.M, appellants Vijay Bangali, Awadhesh Shukla, Jagdish Kahar, and Ashok Awasthi came to the house of the complainant and accused Vijay Bangali told his father (Hakim Singh) that Rudrapal Yadav wants to apologise to him and he should be forgiven. The aforesaid fact suggests that Rudra Pal was apologetic for his conduct and had sent the aforementioned appellants to the house of the deceaseds just to convey his apology. It has also been noted on that the previous day 12.2.1980 during day time Hakim Singh (Deceased) alongwith his son had gone to the place of Rudra Pal (appellant), who had beaten his son P.W. 7. His going to the house of the appellant Rudra Pal clearly suggests that he was quite annoyed with him as his son was beaten up by a person belonging to a lower caste as he himself was a Thakur by caste. Had the intention of the appellants was to kill the deceaseds, they definitely would not have gone to the house of the deceaseds conveying the apology of the appellant Rudra Pal and requesting him to forgive him. Their conduct shows that they wanted to settle the matter amicably. 51. It is also notable that the deceased reached the spot alongwith his brother in law Banshi Singh carrying guns on their shoulders and also instructed his sons to reach the spot in the morning on the date of incident. Hence, they had reached the spot alongwith their servant Verma. From the deceased side there were five persons of the family out of them the deceased persons namely Hakim Singh and Banshi Singh were carrying loaded guns alongwith them. Hence, they had reached the spot alongwith their servant Verma. From the deceased side there were five persons of the family out of them the deceased persons namely Hakim Singh and Banshi Singh were carrying loaded guns alongwith them. The aforesaid fact indicates that deceaseds Hakim Singh and Banshi Singh had gone to the place of the incident with full preparation and were not taken by surprise. 52. It is also notable that there was tussle only between the deceased side on the one hand and Rama Shankar Teli and Rudra Pal on the other. Rest of the appellants had no reasons or motive to assault the deceaseds. Even if it may be assumed that they were all friends, it is difficult to accept that for such a trifling matter (alleged altercation between Rakesh Singh and Rudara Pal on the previous day) they would have gone to the extent of committing double murder of Hakim Singh and Banshi Singh especially when all the appellants were of a tender age at the time of incident. None of them had have any criminal history except Vijai Bangali. It is impossible to believe that Shishupal Singh and Rudra Pal would kill or cause any injury to their own brother Jaswant Singh without any reasons. 53. The contention has been made on behalf of the learned A.G.A that, had the shot been fired by the deceaseds Hakim Singh and Banshi Singh, Jaswant Singh would have definitely named the deceased. However, we are unable to accept the contention of the prosecution. Admittedly, it has been stated by the deceased Jaswant Singh in his dying declaration that he was a permanent resident of Calcutta and had come to Fatehpur to meet his ailing father and at the time of incident had gone to the market to purchase cigarette and suffered fire-arm injury while he was standing in the crowd. Since he was a permanent resident of Calcutta and not of Fatehpur he was unable to identify the assailants/deceaseds. Therefore, no adverse inference can be drawn on this count and this vital fact cannot be ignored and by no stretch of imagination they would kill their own brother. 54. Since he was a permanent resident of Calcutta and not of Fatehpur he was unable to identify the assailants/deceaseds. Therefore, no adverse inference can be drawn on this count and this vital fact cannot be ignored and by no stretch of imagination they would kill their own brother. 54. It may also be noticed that according to the prosecution story P.W. 1 Rajesh Singh and P.W. 7 Rakesh Singh alongwith their servant Verma were present at the time of incident and according to the site plan they were just 10-12 paces away from the spot where the incident took place. It is difficult to believe that two sons of the deceased with their servant Verma would remain mute spectators of the whole incident especially when their father and maternal uncle were allegedly beaten mercilessly by the appellants and they did not come forward to save them. They have not received even a scratch in the entire incident. This unnatural conduct on the part of the eye-witnesses who are none other than the sons of the deceaseds Hakim Singh and Banshi Singh creates a serious doubt upon their testimonies. It is also difficult to understand that when the appellants were so furious and aggressive how they had not caused any injury to the P.W. 1 and P.W. 7 (sons of the deceased), who were present near the scene of incident. It is also notable that P.W. 1 and P.W. 7 were college going students and the incident had happened on the working day (Wednesday) when the college was open and instead of attending the college they were asked to be present on the place of incident. It has also come on the record that the Investigating Officer did not make any effort to find out the truth from the attendance register or from the teacher of the college to ascertain whether the informant and his brother were present in the College/School on the date of the incident or not. 55. There is another circumstance which also casts a serious mistrust as to the genuineness of the evidence. According to the prosecution story both the deceased were assaulted by hockey sticks, iron rods and brick bats but they have not been killed by fire-arm. 55. There is another circumstance which also casts a serious mistrust as to the genuineness of the evidence. According to the prosecution story both the deceased were assaulted by hockey sticks, iron rods and brick bats but they have not been killed by fire-arm. According to the prosecution story, the assailants had snatched away the guns of the deceased and instead of firing at them, they chose to kill them by Iron rod, hockey sticks and brick bats. This also creates a serious dent in the prosecution story with regard to the manner of assault and the participation of the appellants as alleged by the prosecution. 56. The most important and vital aspect of the matter is the testimony of P.W. 10-Shiva Kant, who himself is an injured witness and Rama Shankar, who is said to have also sustained injuries in the incident and was also the root cause of the dispute between the parties which led to double murders. P.W. 10-Shiva Kant was produced by the prosecution, however, he has not supported the case of the prosecution. Even in his examination in chief he has categorically stated that two persons, who had come on the spot by motor cycle started beating on account of which few members of the crowd tried to save that boy whereupon the deceased opened fire towards the crowd causing injry on his leg. Thereupon the crowd became furious and aggressive and assaulted Hakim Singh and Banshi Singh with lathis and dandas and killed them at the spot. He has specifically stated that none of the person present in the Court fired shots and thereafter specifically stated that after looking at them (appellants) they did not fire at the crowd. Meaning thereby that he had not attributed the role of firing to any of the appellants and further stated that the Investigating Officer got his signature on the blank paper and did not record any statement. Although, he has been declared hostile witness but his entire testimony cannot be discarded. 57. It is a settled position that evidence of a hostile witness need not be completely rejected only because he has turned hostile. The Court must, however, be circumspect in accepting his testimony and, to the extent possible, look for its corroboration. Although, he has been declared hostile witness but his entire testimony cannot be discarded. 57. It is a settled position that evidence of a hostile witness need not be completely rejected only because he has turned hostile. The Court must, however, be circumspect in accepting his testimony and, to the extent possible, look for its corroboration. In the present case, none of the injured examined before the Court has made any allegation in his statement recorded under Section 161 Cr.P.C against the appellants of causing injury to them. Even in his oral testimony before the Court and in his examination in chief, P.W. 10-Shiva Kant has not made any allegation against the appellants of causing fire-arm injuries instead has stated that two persons who had come on the motor cycle had fired shots at him. The testimony of the injured witness (P.W. 10) also causes a serious dent on the credibility of the prosecution story which goes to the root of the matter. The preposition of law is also very much reinforced by the ratio propounded by the Apex Court in the case of Gudu Ram v. State of Himachal Pradesh, (2013) 11 SCC 546 and Haradhan Das v. State of West Bengal, (2013) 2 SCC 197 . It may also be noted that P.W. 10-Shiva Kant is himself an injured witness and his injury has been proved and was produced by the prosecution itself before the Trial Court for recording his testimony, therefore, his presence on the spot is proved. 58. The Apex Court in the Case of Mano Dutt v. State of Uttar Pradesh, 2012(4) SCC 79 , has held that normally, an injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence, or to involve anybody falsely and in the bargain, protect the real culprit. In fact, this aspect of criminal jurisprudence is no more res integra, as has been consistently stated by this Court in uniform language. The Apex Court in the Case of Balwan and others v. State of Haryana, (2014) 13 SCC 560 , has observed that it is trite law that the evidence of the injured witness, being a stamped witness, is accorded a special status in law. The Apex Court in the Case of Balwan and others v. State of Haryana, (2014) 13 SCC 560 , has observed that it is trite law that the evidence of the injured witness, being a stamped witness, is accorded a special status in law. This is as a consequence of the fact that injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness would not want to let the actual assailants go unpunished. 59. The matter does not stop here, testimony of the injured witness D.W. 2 Rama Shankar further deepens the suspicion and casts cloud on the credibility and truthfulness of the entire prosecution story. D.W. 2-Rama Shankar Teli was the main cause of the dispute between the parties, his injuries have been proved by D.W. 4- Dr. R.K. Katiyar, who has opined that two of the injuries (injury Nos. 2 and 3) can be self suffered but it would have caused lot of pain to the injured but for the injury No. 1, he has categorically stated that injuries caused to him cannot be self suffered/self inflicted. D.W. 2- Rama Shankar Teli was aged about 16 years at the time of incident and he was not an accused in the matter, as such, there was no occasion for him to suffer unnecessarily the immense pain by inflicting injury Nos. 2 and 3 on his person. D.W. 2- Rama Shankar Teli has categorically stated in his testimony that Hakim Singh and Banshi Singh came on the motor cycle and started abusing and beating him by the butt of the gun and uttered “Aheer ka baccha kahan hai, isko goli mar do, ye teli hokar thakuron se bhirta hai”. On account of the injuries caused by the deceaseds he started bleeding from his head. There was no suggestion from the prosecution during his cross-examination with regard to delay in getting the injury examined, as such, no adverse inference can be drawn in this regard. The testimony of the injured witness cannot be discarded as there was no occasion for him to speak lies when he himself was not the accused in the case. 60. There was no suggestion from the prosecution during his cross-examination with regard to delay in getting the injury examined, as such, no adverse inference can be drawn in this regard. The testimony of the injured witness cannot be discarded as there was no occasion for him to speak lies when he himself was not the accused in the case. 60. D.W. 2- Rama Shankar Teli in his testimony has also stated that the FIR was not registered by the Investigating Officer rather he was abused by the I.O., and he told him to go underground otherwise he will put him in prison, as such, out of fear he left the police station and thereafter made a complaint to the Superintendent of Police but no action was taken and thereafter he got himself medically examined. We do not see any infirmity which may warrant rejection of his testimony, particularly when he himself suffered injuries in the incident in question which was duly proved by the Doctor. 61. There is one another aspect in the matter which also requires attention. P.W. 11- Investigating Officer S.I. Jag Mohan Singh in his testimony has stated that the deceased Hakim Singh wanted to get her daughter married with the son of S.I. Banspati Singh, who was working as S.I in the Office of S.P. Fatehpur. Since the I.O. Jag Mohan Singh belongs to the same community, Hakim Singh sent a proposal through him to S.I. Banspati Singh. His testimony clearly shows that there was an affinity between the Investigation Officer Jag Mohan Singh and the deceased Hakim Singh. 62. The Trial Court itself in its impugned judgment has observed : “that the prosecution version is not free from doubt for causing fire-arm injuries to the victims and it is very difficult to say that the version of the prosecution has been established beyond the shadow of doubt. The reason is that the defence version in that regard viz two shots were fired by Hakim Singh and Banshi Singh is also a probable version although that too is not free from doubt. The reason is that the defence version in that regard viz two shots were fired by Hakim Singh and Banshi Singh is also a probable version although that too is not free from doubt. Once the Court reaches the conclusion that a part of the prosecution version is not free from doubt and the defence version in that regard is also a probable version, though not necessarily, the benefit must go the the accused and that being so the accused persons cannot be held guilty of committing the murder of Jaswant Singh deceased, own brother of the accused Vijai alias Bangali and Shishupal Singh and of making an attempt of lives of the other four injured.” 63. It is also relevant to extract the following finding of the Court below expressing apprehension that the deceaseds Hakim Singh and Banshi Singh might have fired two shots at the crowd. It reads as under : “I agree with the argument of Sri Shambhu Nath, Advocate that accused Vijai Bangali and Rudra Pal could not know that the guns of the two deceased were already loaded and hence, if they intended to fire from the guns after snatching them, they would have first loaded the barrels with one cartridge each from the belt of cartridges belonging to Banshi Singh which had also been snatched away. It is this argument which makes the defence version probable that the two shots resulting in injuries to 5 persons including Jaswant Singh deceased were not fired by accused Vijai Bangali and Rudra Pal and that those two shots may have been fired by Hakim Singh and Banshi Singh.” 64. Thus, in the present case, out of a single incident inter alia two charges were framed against the appellant. Out of these two charges one was proved and the other was held not proved. The very foundation on which the other was found not proved, destroyed the foundation or basis for the second count. In other words, the finding of fact is self contradictory in this regard. The substantial part of the prosecution story with regard to killing of Jaswant Singh and other injured persons has been discarded and rejected by the Trial Court. The prosecution version is not free from doubts and the allegations seems to be on a weakest wicket. 65. In other words, the finding of fact is self contradictory in this regard. The substantial part of the prosecution story with regard to killing of Jaswant Singh and other injured persons has been discarded and rejected by the Trial Court. The prosecution version is not free from doubts and the allegations seems to be on a weakest wicket. 65. Considering the facts and circumstances of the case, we are of the considered opinion that the view taken by the Court below while convicting the appellants is palpably wrong and the findings recorded by the Court below are perverse, erroneous and cannot stand the scrutiny of law. In our considered opinion the reasons given by the Trial Court are not sufficient to convict the appellants. 66. In the facts and circumstances of the case and the evidence led by the parties renders the origin and genesis of the occurrence doubtful and as such the appellants are entitled to benefit of doubt and acquittal. 67. The appeal having merit is liable to be allowed. 68. On the basis of aforesaid discussion in our considered opinion and also applying the rule of caution, conviction of the appellants namely Awadhesh Kumar Shukla, Ashok @ Ashok Kumar Awasthi, Shishu Pal Singh and Rudra Pal cannot be sustained and is liable to be set-aside and in the circumstances of the case, the appellants deserve acquittal. 69. Consequently, the appeal is allowed. 70. The impugned judgment and order dated 24.4.1981 passed by the IInd Additional Sessions Judge, Fatehpur in Sessions Trial No. 225 of 1980 (State of U.P v. Vijai alias Bangali and others) is set-aside and the appellants namely Awadhesh Kumar Shukla, Ashok @ Ashok Kumar Awasthi, Shishu Pal Singh and Rudra Pal are acquitted of the charges levelled against them and their conviction and sentence are hereby quashed and set-aside. The appellants namely Awadhesh Kumar Shukla, Ashok @ Ashok Kumar Awasthi, Shishu Pal Singh and Rudra Pal are on bail. They need not to surrender. Their personal and surety bonds are hereby cancelled and sureties are discharged from their liability. 71. Let a copy of this judgment alongwith the trial Court record be sent to the Court concerned for compliance. 72. Let a copy of this judgment be also placed in the connected Criminal Appeal No. 789 of 1981 (Rudra Pal v. State of U.P). ———————