JUDGMENT Hon’ble Alok Singh, J. Present appeals are preferred by the accused appellants assailing the judgment and order dated 13.5.2010 passed by 4th FTC/Additional Sessions Judge, Haridwar in Session Trial No. 380 of 1999, whereby both the appellants were held guilty for the offence punishable under Section 302 IPC and were sentenced to undergo life imprisonment and to pay fine of Rs. 20,000/- each and, in default, to undergo additional simple imprisonment of one year. 2.Brief facts of the present case, inter alia, are that PWI Mobin got registered FIR/Case Crime No. 47 of 1999 with P.S. Manglore, District Haridwar at 06:30 A.M. on 11.3.1999 under Section 302 IPC stating therein that Haseena W/o Shakeel (deceased) was having illicit relation with appellant Aalim; Shakeel (deceased) made request to Haseena and Aalim not to indulge in illicit relations and to discontinue the same, however, both the appellants did not stop; Shakeel has given beating to the appellant Haseena two days before the incident on account of having illicit relation with Aalim/appellant; on this, both the appellants were having enmity with Shakeel (deceased); last night when PW1 was sleeping in his house along with his family members, he noticed that his brother Shakeel was crying; having heard, he (PW1) along with his wife Shafeeqa (PW2), having torch in his hand, rushed towards the room of Shakeel (deceased); having reached there, they (PW1 and PW2) noticed that both the appellants were thrashing Shakeel (deceased); having seen PW1 and PW2 there, Aalim (appellant) immediately fired at Shakeel and ran towards his house; neighbour Naseem and Raees s/o Habidulla have also seen Aalim coming out from the house of Shakeel and running towards his house; having received gun shot injury, Shakil died on the spot and his dead body was laying on the spot; due to dark night and non-availability of any means of transportation, report could not be lodged in the night. 3.Having received the report, police party along with Investigating Officer Narayan Singh Verma (PW9) rushed towards the spot; inquest report was prepared on the spot; dead body of Shakil was sealed; blood stained soil as well as soil from the spot was collected and kept in separate sealed covers and spot map was prepared on the spot; PW9 started investigation on the spot and recorded statements of PW1 and PW2 on the spot; PW9 arrested the appellants on 12.3.1999. 4.After his arrest, appellant Aalim stated before the IO on 12.3.1999 itself that he could recover the fire arm (country made pistol), whereby he shot dead Shakil; he took the police party to his house and took the police party in the room, wherefrom he took out the country made pistol and handed over to the police, whereupon recovery memo (Exhibit 16) was prepared on the spot. Having recovered the weapon, another FIR/Case Crime No. 48 of 1999, under Section 25 Arm Act was got registered against the appellant Aalim. 5.Post-mortem was conducted by Dr. Basant Kumar (PW7) and as per post-mortem report , one fire arms wound of entry 2.5 cm x 1.5 cm chest cavity deep on back side of chest at the lower end of left scapula was found. Cause of death was opined due to one gun shot injury. 6.Having investigated the matter and having obtained the requisite permission from the Collector, two charge-sheets were filed by the subsequent Investigating Officer O.P. Sisodia (PW 5) – one under Section 302 IPC against both the appellants and another under Section 25 of Arms Act against the appellant Aalim only. Since, both the cases were inter-connected, therefore, after committal, case under Section 302 IPC was got registered as Session Trial No. 380 of 1999 against both the appellants while under Section 25 Arms Act was got registered as Session Trial No 381 of 1999 against Aalim only and both the trials were consolidated. 7.Charges were framed by the learned Trial Judge against both the appellants for the offence punishable under Section 302 IPC, while against the appellant Aalim another charge was framed under Section 25 of the Arms Act. Both the appellants pleaded non guilty and demanded the trial, therefore, trial commenced. 8.From the side of the prosecution, Mobin (PW1), Smt. Shafeeqa (PW2), Naseem (PW3), Salimuddin (scriber of the FIR, PW4), constable Niaz Ahmad (PW5), constable clerk Balbir Singh (PW6), Dr. Basant Kumar (PW7), subsequent Investigating Officer O.P. Sisodia (PW8), first Investigating Officer S.I. Narayan Singh (PW9) and S.I. Mohd. Naseem (PW10) were examined. 8.From the side of the prosecution, Mobin (PW1), Smt. Shafeeqa (PW2), Naseem (PW3), Salimuddin (scriber of the FIR, PW4), constable Niaz Ahmad (PW5), constable clerk Balbir Singh (PW6), Dr. Basant Kumar (PW7), subsequent Investigating Officer O.P. Sisodia (PW8), first Investigating Officer S.I. Narayan Singh (PW9) and S.I. Mohd. Naseem (PW10) were examined. 9.It is important to mention here that although the appellant Aalim was held guilty for the offence punishable under Section 302 IPC as well as under Section 25 Arms Act, however, appellant Aalim has filed only one appeal i.e. Criminal Appeal No. 112 of 2010 against the impugned judgment and order passed in Session Trial No. 380 of 1999 whereunder appellant was held guilty for the offence punishable under Section 302 IPC. Although, no separate appeal has been preferred against the judgment and order passed in Session Trial No. 381 of 1999 under Section 25 5 Arms Act by the appellant Aalim, however, a vague and ambiguous prayer is made in the appeal filed against the judgment passed in Session Trial No. 381 of 1999 that conviction passed under Section 25 of the Arms Act may also set aside. 10.Appellant Haseena has filed Criminal Appeal No. 108 of 2010. Since, both the appeals are against one and common judgment, therefore, with the consent of learned counsel for the parties, both the appeals are heard together and are being disposed of by this common judgment. 11.We have heard Mr. M.K. Goyal, learned counsel for the appellants and Mr. A.S. Gill, learned Deputy Advocate General assisted by Mr. Milind Raj, Brief Holder for the State. 12.PW1 Mobin stated on oath that Haseena was having illicit relationship with accused Aalim; Mohd. Shakeel spoke to Haseena and Aalim to stop their illicit relationship, however, both of them did not stop; Shakeel gave beating to Haseena two days prior to the incident; on this, both the accused were having enmity and ill feeling against Shakeel; in the intervening night of 10/11.3.1999, Shakeel was in his room while PW1 and his wife were sleeping in their room in the same courtyard. Minor children of Shakeel were sleeping in the next room; in the midnight, he (PW1) heard call/cry of Shakeel – “save, save!”; having heard, he along with his wife, with the help of torch, rushed towards the room of Shakeel and found that both the accused were catching hold of Shakeel and were beating him; having seen PW1 and PW2, accused Aalim fired one shot at 6 Shakeel, whereupon Shakeel fell down and Aalim started running; having heard the noise, few neighbours collected on the spot; due to lack of transportation and it being mid-night, he could not go to the police station to report the matter, however, went to Police Station Manglore early in the morning and reported the matter between 6:00 to 6:30 A.M. about the incident. He has identified accused Aalim in the court room while appearing in the witness box and stated that he was the man, who shot Shakeel dead. 13.PW2 also stated that she was sleeping with her husband PW1 Mobin in the room in the intervening night of 10/11.3.1999; in the midnight, at about 12:00, they heard voice of Shakeel – “save, save!”; whereupon, both of them rushed towards the room of Shakeel and saw in the light of the torch being carried by PW1 that both the appellants were thrashing Shakeel; having seen PW1 and PW2, appellant Aalim fired shot at Shakeel, whereupon having received gun shot injury at the hands of Aalim, Shakeel fell down and died. She has also identified Aalim in the court room while appearing in the witness boax. 14.According to PW1 and PW2, Aalim fired only one shot, which hit Shakeel on the back side of the chest and as per the postmortem report, one gun shot injury was found on the dead body of Shakeel. Therefore, their version stand duly corroborated by the medical evidence. 15.PW3 Naseem stated that having heard gun shot, he opened the door of his house, which is nearby the house of Shakeel and PW1 and PW2, and saw Aalim running towards his house carrying county made pistol in his hand; thereafter, he rushed towards the room of Shakeel and found that Shakeel was laying on the ground having received one gun shot injury. On inquiry, PW3 was told by PW1 and PW2 that Shakeel was shot dead by accused Aalim. On inquiry, PW3 was told by PW1 and PW2 that Shakeel was shot dead by accused Aalim. 16.As per the statement of Investigating Officer Narayan Singh Verma (PW9), accused were arrested on the very next day of the incident i.e. on 12.3.1999. Mohd. Aalim confessed before the police that he has shot dead Mohd. Shakeel and he could facilitate recovery of weapon, whereby shot was fired; he took the police party to his room, wherefrom country made pistol was recovered and recovery memo was prepared on the spot. PW 9 Investigating Officer also stated that having recovered the country made pistol, chick FIR under Section 25-A was got registered against the appellant Mohd. Aalim. 17.PW4 Salimuddin although is not an eye-witness of the incident, however, he has stated that he has written the report as dictated by PW1 Mobin and same was handed over to the police of P.S. Manglore in the morning at about 6:00 – 6:30 A.M. on 11.3.1999. 18.In his statement recorded under Section 313 CrPC, accused Aalim has stated that few days before the incident, Shakeel had a fight with his brother PW1 Mobin; Mobin had caused head injury to Shakeel and he had intervened during the fight between Shakeel and PW1 Mobin; on this, Mobin was having enmity with the accused Aalim and due to this enmity, he has been falsely implicated. 19.Learned counsel appearing for the appellants has vehemently argued that as per the statement of accused Aalim and DW1 Pramod Kumar, few days before the incident, there was a fight between Shakeel (deceased) and his real brother Mobin, wherein appellant Aalim intervened and separated them and due to this reason, Mohd. Aalim was falsely implicated, cannot be ruled out completely. He has further submitted that PW3, who has seen Aalim running with country made pistol, is a chance witness. 20.It is important to mention herein that had there been any fight between Shakeel and PW1 Mobin, as narrated by accused Aalim in his statement under Section 313 CrPC and Pramod Kumar (DW1), and had Shakeel received head injury, he would have certainly lodged an FIR against his own brother Mobin (PW1) while no such matter was ever reported nor any prescription or medical report is placed on record to suggest that in fact Shakeel had received head injury at the hands of Mobin. 21.In our considered opinion, since statement of PW1 and PW2 stand corroborated by the medical evidence, and Naseem (PW3) has seen accused Aalim running from the house of Shakeel (deceased) carrying country made pistol, prosecution story can be said to have been proved beyond reasonable doubt. 22.Mr. M.K. Goyal, learned counsel appearing for the appellants, has further stated that incident took place at about 12:00 – 12:30 A.M. in the night, however, the matter was reported to the police in the morning at about 6:00 – 6:30 A.M., therefore, delay has not been properly explained. 23.We are not inclined to buy arguments so advanced by Mr. Goyal, learned counsel for the appellants, for the simple reason that place of incident is about 5 kms. away from P.S. Manglore in Village Liberhedi. It is specifically stated by PW1 Mobin that due to dark night and non-availability of means of transportation, he could not dare to come out from the village to report the matter and next day morning he alongwith others left the village on the bicycle to report the matter to police. 24.In view of the statement of PW1, we find that delay in lodging the FIR has been duly explained. 25.For the reasons and discussions made hereinbefore, we do not find any justification to take contrary view to the view taken by the learned Trial Court. Therefore, both the appeals fail and are hereby dismissed. The impugned judgment and order passed by the learned Trial Court is affirmed. 26.Both the appellants are on bail. Their bail and bail bonds are cancelled. Both of them shall surrender and shall be taken into custody to serve out the sentence as awarded by learned Trial Court. 27.Let copy of this judgment be placed in connected file and entire lower court records be sent back to learned Trial Court for compliance.