JUDGMENT : (Per : Servesh Kumar Gupta, J.) By means of both these above titled appeals, judgment and order dated 12/16.4.2013 rendered by the Sessions Judge, Nainital has been assailed, whereby the appellants Amit Raj and Antu @ Aktu @ Amit were found guilty for the offence of Section 302/34 and 307/34 IPC in Crime No. 8077/2005. In addition to, the accused appellant Amit Raj has also been found guilty for the offence under Section 25 Arms Act in Crime No. 8184/2005. The offences pertain to Police Station Haldwani, District Nainital. Accused/convicts have appropriately been sentenced. 2. It may be mentioned here that initially the chargesheet was submitted for trial against four accused persons, namely, Amit Raj (A1), Naveen (A2), Ajay (A3) and Antu @ Aktu (A4). Since A2 and A3 raised the plea of juvenility with substance, therefore, their trial was referred to the Juvenile Justice Board, where they, too, were found guilty for the offence of Section 302/34 and 307/34 IPC and have been dealt with appropriately as per the Juvenile Justice Act. 3. This is a brutal incident in which a young boy of 22 years, having been shot by opening fire which hit his abdomen and as a result, he lost his life within hours of such occurrence as he breathed his last in the hospital. The incident occurred around 9 PM on 12.10.2005 at one trisection on Tanakpur Road, Haldwani. Just before such incident, PW1 Ashok Kumar along with his companion Vishal (PW3) and Raj @ Gabbar (deceased) were talking near an electric pole on Tanakpur Road. They were intervened by A1 and A2. Both these accused persons motivated the deceased Raj @ Gabbar to settle the score of some earlier quarrel between them and for that, they carried him to the trisection. PW1 and PW3 chased them. At that time, Manoj (the real brother of the deceased) and Vishal (cousin of the deceased) also arrived on the spot. It was seen by all these witnesses that A3 and A4 were also waiting on that trisection having swords in their hands. At that very juncture, A1 whipped out a country made pistol from his waist and opened fire on Gabbar. Several pellets pierced his abdominal portion and entered in his stomach. Meanwhile, A2 also whipped out another country made pistol from his waist and opened fire on PW1 and PW3. At that very juncture, A1 whipped out a country made pistol from his waist and opened fire on Gabbar. Several pellets pierced his abdominal portion and entered in his stomach. Meanwhile, A2 also whipped out another country made pistol from his waist and opened fire on PW1 and PW3. The pellets pierced them, but not on the vital parts. Consequently, their lives could be saved. However, having hit by the pellets, they also fell down. 4. Boarding a rickshaw, all the three injured were shifted by Manoj to the local Krishna Hospital, from where they were referred to Haldwani Base Hospital. PW1 and PW3 got admitted there, but Raj @ Gabbar was referred to higher centre i.e. Sushila Tiwari Medical College. Struggling for his life, Raj @ Gabbar lost his life in that intervening night in the hospital itself. So, PW1 Ashok, an illiterate boy, narrated the incident to his mother Smt. Maya, who reduced the narration in writing and handed over the same to Kotwali Haldwani in that very intervening night at 22.50 hours. The report is Ex. Ka-1. Chick FIR is Ex. Ka-6. It reflects that the FIR has been lodged within two hours of the incident. 5. In the Base Hospital, Haldwani, Ashok was examined by the Emergency Medical Officer Dr. S.B. Oly (PW8) at 9.35 PM of that night. He was brought by his mother Smt. Maya, the scribe of the report. Following injuries were found on his body: “Multiple rounded lacerated wound on abdomen, 0.5 CM x 0.5 CM size over left forearm. Tattooing and blackening around the wound.” X-ray of left forearm advised. The aforesaid medical report is Ex. Ka-8. 6. On x-ray, the Radiologist Dr. M.S. Sharma (PW5) of the selfsame hospital reported that multiple rounded radio opaque shadows of metallic densities were seen inside the wound. 7. In the same night, Dr. Naveen Kandpal (PW6), another Emergency Medical Officer, examined Vishal, S/o Chhuttan. Following injuries were found on his body: “Abraded wound approximately 1/2 X 1/2 CM on left forearm” X-ray was advised and the injured was referred to the Orthopedic Surgeon. The aforesaid injury report is Ex. Ka-5. 8. X-ray of the injured Vishal was conducted by PW4 Dr. Jagdish Prasad Bhatt, who confirmed that there was something in his forearm having the density of metal. This report is Ex. Ka-2. 9. The aforesaid injury report is Ex. Ka-5. 8. X-ray of the injured Vishal was conducted by PW4 Dr. Jagdish Prasad Bhatt, who confirmed that there was something in his forearm having the density of metal. This report is Ex. Ka-2. 9. Next day on 13.10.2005, the inquest report of the deceased was prepared at the mortuary of Sushila Tiwari Medical College. Such report is Ex. Ka-12. During the inquest, it was found that the T-shirt on the body of the deceased was having several small holes on the abdominal side. Witnesses of such report affirmed that the death occurred on account of firearm pellet injuries on his abdomen. Post-mortem was recommended. 10. Same day on 13.10.2005 at 12.30 PM, autopsy was conducted by PW5 Dr. M.S. Sharma, who found following injuries on the body of the deceased: (1) Multiple wounds of entry noted on the whole front of the abdomen and inner part of the right upper arm. They are rounded to oval in shape. The margins are inverted, scorched and few are having blackening around. No tattooing noted. They are measuring from 0.5 x 0.3 CM to 0.3 x 0.2 MM. On further exposure, haematomas noted underneath. On further exposure, the liver, right kidney, spleen, stomach and small intestine were found lacerated. The abdominal cavity is full of free blood. Multiple metallic pellets are recovered from the abdominal cavity, which are sealed. (2) Abrasion .2 x 1 CM on the left shoulder.” This doctor has proved the post-mortem report as Ex. Ka-3 and has disclosed that the cause of death was due to shock and haemorrhage as a result of ante mortem firearm injuries. 11. Investigation culminated into submission of the chargesheet as aforementioned. At the instance of A1, the country made pistol was recovered on 19.10.2005. The recovery memo is Ex. Ka-19 and it contains the signature of the accused Amit Raj. Such weapon, used in the incident, was sent to the Forensic Science Laboratory and its report is Ex. Ka-25 and Ka-26. So, the separate chargesheet under Section 25 Arms Act was also filed against A1 after procuring the necessary sanction of the District Magistrate. 12. Learned Sessions Judge framed charges accordingly against A1 and A4 only as A2 and A3 were referred to Juvenile Justice Board for the trial. 13. Prosecution has examined as many as 13 witnesses to prove the case. 12. Learned Sessions Judge framed charges accordingly against A1 and A4 only as A2 and A3 were referred to Juvenile Justice Board for the trial. 13. Prosecution has examined as many as 13 witnesses to prove the case. Out of these, PW1 and PW3 are the most crucial witnesses who have rendered the eyewitness account of the incident. They were present at the spot. PW1 has deposed that on 12.10.2005 at 9 PM, when he was having a chat with PW3 and the deceased Raj @ Gabbar near the electric pole on Tanakpur Road, A1 and A2 came there and they persuaded Raj @ Gabbar to walk some distance with them in order to settle the score of some previous quarrel. PW1 and PW3 followed them. Meanwhile, Manoj, the real brother of Raj @ Gabbar, also came there as the residences of all these persons (deceased and the witnesses) are situated in the very close vicinity of each other because they are brothers (either real and cousin) or related somehow to each other. Accused persons reside almost two kilometres away in Mohalla Gandhi Nagar, Haldwani, but they arrived there with the prearranged plan to commit the incident. When Raj @ Gabbar along with A1 and A2 reached at the nearby trisection, which is few paces away, it was seen that A3 and A4 were already waiting there having swords in their respective hands. So, it is clear that A4 Antu S/o Chhotey was having his active complicity in committing the crime along with his other associates. The fire was opened, as have been highlighted above, causing injuries to the victims. 14. The above eyewitness account of PW1 has perfectly been corroborated by PW3 Vishal, who is another eyewitness. 15. It is pertinent to mention that Antu @ Aktu is the son of one Mr. Chhotey as has been disclosed by the Investigation Officer while submitting the chargesheet and it finds corroboration from the father’s name written by the appellant Antu @ Aktu in the cause title of Criminal Appeal No. 214/2013. However, in order to create the confusion, in his statement under Section 313 CrPC, he has disclosed his father’s name as Naithani and perhaps this has been done because somehow PW3, in his cross-examination at page 2, has disclosed that Amit and Aman are the sons of Smt. Maya, wife of Sri Chandra. However, in order to create the confusion, in his statement under Section 313 CrPC, he has disclosed his father’s name as Naithani and perhaps this has been done because somehow PW3, in his cross-examination at page 2, has disclosed that Amit and Aman are the sons of Smt. Maya, wife of Sri Chandra. So, in order to get the undesirable benefit from this deviation in the statement of PW3, an attempt has been made to create confusion in the father’s name of A4. Such confusion has been cleared as A4 himself has disclosed his father’s name as Chhotey in the cause title of the appeal and such name of the father is the same which has been shown by the Investigation Officer in the chargesheet. 16. Learned Counsel of the appellants has vehemently argued that there are several discrepancies in the contents of the First Information Report and the eyewitness account. However, we feel that such discrepancies are not material so as to put aside the entire prosecution version, as the informant Ashok is quite illiterate. He narrated the incident to his mother Smt. Maya, who was a little literate and reduced the narration in the writing as Ex. Ka-1. 17. Attention of this Court has been drawn towards the statement of PW2 Smt. Munni, in which she has admitted to have scribed the FIR and such occurrence was disclosed to her by Manoj and her bhabhi Kamla (brother’s wife). This deposition is against the statement of PW1. But here it was the duty of the defence to have cross-examined her to contradict this witness PW3 from the statement of PW1 regarding the fact that the report was scribed by Smt. Maya at his narration. No such attempt was made. So, on account of the failure to get the same contradicted and not providing an opportunity to PW2 to clarify the same, we think that no benefit could be extended to the accused appellants on this score. 18. The Court also cannot fail to observe the fact that all these witnesses/injured come from a very lower strata of society. They are scavengers by profession and quite illiterate. It is difficult to expect that they shall depose in the Court and would be able to face the cross-examination at the hands of a person having legal acumen. 18. The Court also cannot fail to observe the fact that all these witnesses/injured come from a very lower strata of society. They are scavengers by profession and quite illiterate. It is difficult to expect that they shall depose in the Court and would be able to face the cross-examination at the hands of a person having legal acumen. So, in such an event, discrepancies, contradictions and incongruities in the evidence of all the witnesses are bound to occur, and more particularly, when they were produced in the witness box after more than two and half years of the incident. So, they are not supposed to possess photographic memory of the incident. 19. As regards the recovery of weapon used for opening the fire by A1, he has not specifically denied his signature on such memo. The report of the Forensic Science Laboratory also corroborates the version of the prosecution. 20. Having perused the entire evidence, we feel that the appellants travelled two kilometers away from the place of their residence and came at the spot with prearranged plan and duly armed with weapons of assault, as stated above, and committed the incident. Defence has not been able to create any reasonable doubt in the prosecution version. 21. Consequently, we find that both these appeal are devoid of any merit and the same are hereby dismissed. We affirm the conviction and sentence awarded to each of the accused appellants. Impugned judgment is thus upheld. Appellants are in jail. They shall serve out the sentence as awarded by the Trial Court. 22. Let a copy of this judgment and order be sent to the court below for compliance. Trial court record be sent back.