JUDGMENT : [Delivered by Hon'ble Arvind Kumar Mishra-I,J.] We have heard the arguments of Shri Dharmendra Singhal learned counsel for the accused appellants and Shri Mahendra Singh Yadav and Shri A.N. Mulla learned counsel on behalf of the State as well as Shri I.M. Khan, learned counsel for the complainant and perused the record. The instant criminal appeal has been preferred against the judgment and order of conviction and sentence dated 22.12.1986 passed by II-Additional Sessions Judge, Saharanpur, in Sessions Trial No. 2 of 1985 arising out of Case Crime No.82 of 1984, under sections 147, 148, 302/149 and 323/149 I.P.C., Police Station Gagalheri, district Saharanpur, whereby two surviving appellants Ali Hasan and Ismail have been sentenced to six months rigorous imprisonment under section 147 I.P.C. and further sentenced for committing murder of Ishrat, to life imprisonment under section 302/149 I.P.C. and further sentenced to life imprisonment for committing murder of Firdaush and further sentenced to one year RI under section 323/149 I.P.C. for voluntarily causing hurt to Irfan. Another two surviving appellants Zareef and Ikram have been sentenced to one year rigorous imprisonment under section 148 I.P.C. and further sentenced to life imprisonment under section 302/149 I.P.C. for committing murder of Ishrat. Likewise sentenced to life imprisonment under same sections for committing murder of Firdaush, they have been further sentenced to one year rigorous imprisonment under section 323/149 I.P.C. for voluntarily causing hurt to Irfan. All the aforesaid sentences have been directed to run concurrently. Pertinent to mention that the instant appeal was preferred initially by eight appellants, out of whom four appellants died during the pendency of appeal, therefore the appeal against Mustaq, Furkan, Mazid, and Nafees appellants no. 1, 3, 5 and 8 stood abated vide order of this Court dated 3.2.2016, therefore, the instant appeal is now confined to the surviving appellants Ikram, Zarif, Ali Hasan and Ismail, appellants no. 2, 4, 6, 7 respectively. All the four appellants are on bail for the time being. 1, 3, 5 and 8 stood abated vide order of this Court dated 3.2.2016, therefore, the instant appeal is now confined to the surviving appellants Ikram, Zarif, Ali Hasan and Ismail, appellants no. 2, 4, 6, 7 respectively. All the four appellants are on bail for the time being. The facts germane as discernible from the record appears to be that the first information was lodged at the instance of Irfan Khan son of Abdul Ajij Khan, resident of Kailashpur, Police Gagalheri, district Saharanpur, at police station Gagalheri on 28.9.1984 at 8:30 a.m. against eight accused persons alleging therein that his nephew Firdaush son of Barkhurdar, resident of Kailashpur, was going to meet the plumber (tap-mechanic) for repairing his hand-pump at 7:45 a.m. The complainant also accompanied him. As soon as they reached near Peethwale Temple, Nafees son of Lateef Teli met them and whipped out pistol pointing on the neck of Firdaush and abused him and took him to the locality of Telis. In the meantime, Ishrat-younger brother of Firdaush- also arrived at the scene. He was going to attend duties at Foremost Dairy. Ishrat and complainant asked Nafees not to do such act then Nafees called his other associates/colleagues whereupon Mushtaq son of Munshi Teli possessing Palkati, Furkan son of Mangta Teli possessing knife, Zarif son of Mangta Teli possessing spear, Ali Hasan son of Nura Teli possessing Lathi, Mazid son of Lala Teli possessing Axe, Ismail son of Abra Teli possessing Lathi, Ikram son of Foola Teli possessing Palkati, arrived at the spot and began to assault with their respective weapons. In the meantime Nafees fired with his pistol on Ishrat. The complainant tried to save him whereupon he, too, was beaten. On alarm being raised witnesses, Ajaz son of Haneef Khan, Mehender son of Santu Harijan, Naseem son of Abdul Hamid, Sayeed Khan son of Hamid Khan, resident of Kailashpur etc. arrived at the spot. They saw the incident and somehow saved the complainant. Ishrat died on the spot and Firdaush was seriously injured. Dead body of Ishrat was lying near the house of Ibrahim Bharbhuja. It has been mentioned in the first information report that Nafees was insisting for last two days for payment of Rs. 2,000/- from Firdaush and Ishrat. This demand was not fulfilled, therefore, the offence was committed. Appropriate action be taken. This written report is Ext. Ka.-1 on record. Dead body of Ishrat was lying near the house of Ibrahim Bharbhuja. It has been mentioned in the first information report that Nafees was insisting for last two days for payment of Rs. 2,000/- from Firdaush and Ishrat. This demand was not fulfilled, therefore, the offence was committed. Appropriate action be taken. This written report is Ext. Ka.-1 on record. Entry of the same was made in Chik FIR at crime no. 82 of 1984 under sections 147, 148, 149, 307, 302, 384, at police station Gagalheri district Saharanpur at 8.30 A.M. on 28.9.1984. Chik FIR is Ext Ka-10 on record. On the basis of entry made in Chik FIR, a case was registered at Rapat No. 16 the very same day under the aforesaid sections of I.P.C. at above mentioned crime number. Thereafter, investigation of the case followed. The investigation was conducted by P.W. 10- B.D. Verma, who recorded the statement of various witnesses and arrived at the spot at 9:30 a.m. on 28.9.1984 and also arrested the accused Majid at 10.35 hours on the tip off information received by him on the spot. It has come on record that injuries were caused to Majid when he was running away. He also got prepared inquest report of deceased Ishrat and has proved the same as exhibit Ka.-17 and thereafter relevant papers like Challan dead body and Photonash etc., were prepared and has also proved execution of these papers. He also prepared site plan and proved the same as Ext. Ka. 20. The complainant Irfan Khan also sustained simple injuries and he was sent to S.B.D. Hospital Saharanpur for medical examination by the Investigation Officer. The Investigating Officer also prepared various memos and collected sample of blood stained and simple soil from the spot and has proved the same as Ext. Ka.-21. He also took sample of blood stained soil and simple soil from the place where injured Firdaush sustained injuries. This memo is Ext. Ka. 22 on record. It is relevant to mention that the injured Firdaush was medically examined by the Medical Officer Dr. R.D. Sharma on 28.9.1984 at 9.30 a.m. at S.B.D. Hospital Saharanpur and following injuries were found on his person: 1. Lacerated wound 4cm X 0.5 cm X scalp deep on top of left side head 12 cm. above from right ear margin. Injury kept under observation. Advised X-ray. 2. L.W. 1.5 cm. R.D. Sharma on 28.9.1984 at 9.30 a.m. at S.B.D. Hospital Saharanpur and following injuries were found on his person: 1. Lacerated wound 4cm X 0.5 cm X scalp deep on top of left side head 12 cm. above from right ear margin. Injury kept under observation. Advised X-ray. 2. L.W. 1.5 cm. X 0.5 cm. X scalp deep on left side head 7 cm. above from upper margin of left ear. Injury kept under observation. Advised X-ray. 3. Incised wound 2 cm. X 0.5 cm. X muscle on left side face just outer to outer end of left eyebrow, margins clean cut, fresh bleeding present. 4. Incised wound 4.0 cm x 0.5 cm x muscle on left side face 1 cm below from injury no.3, margins clean cut, fresh bleeding present. 5. Incised wound 1.5 cm x 0.5 cm x muscle on left side chin, margins clean cut, fresh bleeding present. 6. Incised wound 1 cm x 0.5 cm x muscle on left side face upper part 2 cm below from left eyebrow. Margins clean cut, fresh bleeding present. 7. Incised wound 3.0 cm x 0.5 cm x bone deep on bridge of nose, Injury kept U/o, Adv. X-ray, margins clean cut, fresh bleeding present. 8. Traumatic swelling on both eyes lids, measurements 7 cm x 4 cm each. Injury kept U/O. Referred to Eye Surgeon. 9. Lacerated wound 7 cm x 0.5 cm x scalp deep on frontal part of left side head just above hair. Margin. Injury kept under observation. Adv. X-ray. 10. Contusion 5 cm x 0.7 cm on middle and front of left thigh. 11. Traumatic swelling 1.5 cm x 8 cm on left side face, Injury kept U/o. Adv. X-ray. Injuries nos. 1, 2 , 7, 8, 9 and 11 were kept under observation and X-ray was advised. Injury no. 8 was referred to Eye Surgeaon. Other injuries were said to be be simple in nature . Injury nos. 1, 2, 8, 9, 10 and 11 were caused by blunt object and injury nos. 4, 5, 6, 7 were caused by some sharp edged weapons. Duration was said to be fresh. This injury report is Ext. Ka. 14. Injured Irfan was also examined by Dr. R.D. Sharma in the same hospital on 28.9.1984 at 2.45 p.m. and following injuries were found on his person: 1. Contusion 9 cm. X 3 cm. 4, 5, 6, 7 were caused by some sharp edged weapons. Duration was said to be fresh. This injury report is Ext. Ka. 14. Injured Irfan was also examined by Dr. R.D. Sharma in the same hospital on 28.9.1984 at 2.45 p.m. and following injuries were found on his person: 1. Contusion 9 cm. X 3 cm. on the front and upper part of right upper arm. 2. Contusion 6 cm. X 1.5 cm on the outer side of right elbow joint. 3. Abrasion 4 cm. X 1 cm. on the back of right elbow joint. 4. Contusion 4 cm. X 1 cm. on back and inner side of right fore-arm 8 cm. above elbow joint. 5. Contusion 4 cm. X 1.5 cm. on front of right side chest 2.5 cm. above from right nipple. 6. Contusion 11 cm. X 1.5 cm. on the outer aspect of left upper arm upper part. 7. Complaint of pain in both knee joints but no external mark of injury seen. Injuries on the person of accused Majid were also examined on the aforesaid date at 11.30 a.m. at the same hospital which are as under: 1. Tramatic Swelling 6 cm X 0.5 cm. on left side face just below left eye. 2. Multiple abrasion in an area of 4 cm. X 2 cm. on left supra scapular region. 3. Abrasion 2 cm. X 0.5 cm. on top of left shoulder joint. 4. Patient complains of pain on left side back of chest and also right side back of chest. Injury kept U/o. Advised X-ray. This injury report is on record as Ext. Ka.-16. After completing relevant formalities, the Investigating Officer sent the dead body of Ishrat for post mortem examination. Post mortem examination on the body of Ishrat was conducted at mortuary Saharanpur on 29.9.1984 at 4.00 P.M. And following ante mortem injuries were found on his body: 1. A circular lacerated wound 2.2 cm. X 2 Cm. X brain deep on right side head 10 Cm. Above right ear. Brain matter and blood coming out of wound. No singeing of hair or tattooing mark could be seen, as such due to blood clots but after cleaning and washing the hair and wound, tattooing mark and charring of skin could be seen around the wound. 2. Abrasion 4 cm. X 1.5 cm., 2 cm. above right eye brow on right side forehead. 3. No singeing of hair or tattooing mark could be seen, as such due to blood clots but after cleaning and washing the hair and wound, tattooing mark and charring of skin could be seen around the wound. 2. Abrasion 4 cm. X 1.5 cm., 2 cm. above right eye brow on right side forehead. 3. Abrasion 2 cm. X 1.5 cm., 5 cm above right eye brow on right side forehead. 4. Abrasion 1 cm. X 0.5 cm. on front and upper part of right side chest. 5. Contusion with abrasion 2 cm. X 1 cm. on right upper arm. According to the doctor, the cause of death was shock and haemorrhage due to ante-mortem injury no. 1. This post mortem report is on record as Ext. Ka. 13. Perusal of record also reflects that another injured Firdaush who was under treatment, expired on 6.10.1984 and this fact has been verified by P.W.3 S.I. Satyaveer Singh who received the information of his death from S.B.D. Hospital. He proceeded to S.B.D. Hospital Saharanpur and prepared inquest report of deceased Firdaush and has proved the same as Ext. Ka. 3. Thereafter he also prepared relevant papers for sending the dead body for post mortem examination, whereafter post mortem on dead body of deceased Firdaush was conducted at 4.20 P.M. on 6.10.1984 and following ante mortem injuries were found on his body by Dr. A.B. Garg, (PW-12) (Medical Officer, S.B.D. Hospital, Sharanpur). Ante-mortem Injuries:- 1. Healing contusion 3 cm x 1 cm at the root of nose. 2. Stitched wound 1 cm long and after cutting the stitches the wound is lacerated. 1/2 centimeters broad, muscle deep and it is present on the left cheek just outer of the left eye. 3. Scabbed abrasion 12 cm x 1/3 cm at the inner aspect of right forearm in the middle. 4. Scabbed contusion 5 cm x 3 cm on the right side of back, just below the right scapula. 5. Lacerated wound 2 cm x 1 cm in the healing stage on the outer aspect of the right buttock in the middle. 6. Lacerated wound 2 cm x 1/2 cm x muscle deep on the top of the head, 11 cm above the left ear. 7. 5. Lacerated wound 2 cm x 1 cm in the healing stage on the outer aspect of the right buttock in the middle. 6. Lacerated wound 2 cm x 1/2 cm x muscle deep on the top of the head, 11 cm above the left ear. 7. Contused swelling 6 cm x 2 cm on the front of the head, 8 cm above the root of the nose On internal examination he found fracture of the frontal and left temporal bone of the scalp. Membranes were congested. He also found haematoma present on the brain in front part. In chest he found right side containing blood, weight of the heart 240 grams and rest normal. He found teeth 16x16, stomach-empty, large and small intestines contain gases and digested food, lever-pale and gall-bladder full. In his opinion the death was caused due to coma and septicaemia. He has proved the post mortem report as Ex. Ka 28 and cause of death was due to ante mortem injuries. Besides, the Investigating Officer recorded statement of various witnesses/persons and after completing investigation , P.W. 10 I.O. B.D. Verma filed two charge sheets; one against seven accused persons and proved the same as Ext. Ka. 24 and another charge sheet against accused Nafees in absconding which is Ext. Ka. 25 on record. Thereafter committal proceedings took place and the case was committed to court of Session, Saharanpur from where it was made over for trial to the court of 2nd Additional Sessions Judge, Saharanpur and sessions trial was numbered as S.T. No. 2 of 1985. Thereafter the appellants were heard on the charge and prima facie ground was found existing for framing of charges under sections 147, 148, 302/149, 323/149 I.P.C. Accordingly, the charges were framed, readover and explained to the accused persons in Hindi who denied the charges and opted for trial. The prosecution was called upon to adduce its testimony whereupon the prosecution produced P.W. 1 Irfan, who is the first informant and claims himself to be an eye witness of the incident. Similarly another eye witness P.W. 2 is Mauhind. He also claims himself to be an eye witness of the incident. P.W. 3 is Satyaveer Singh. The prosecution was called upon to adduce its testimony whereupon the prosecution produced P.W. 1 Irfan, who is the first informant and claims himself to be an eye witness of the incident. Similarly another eye witness P.W. 2 is Mauhind. He also claims himself to be an eye witness of the incident. P.W. 3 is Satyaveer Singh. He is formal witness of fact of receiving information of death of injured Firdaush on 6.10.1984 and he prepared inquest report and other relevant papers for sending the body of Firdaush for post mortem examination. P.W. 4 is H.C. Roop Chandra Tyagi. He is formal witness. He has proved Ext. Ka. 7 and Ext. Ka.- 8. P.W. 5 is constable Ram Singh. He is also a formal witness. He has taken dead body of Firdaush for post mortem examination on 6.10.1984 to mortuary. P.W. 6 is constable Yograj Singh. He prepared inquest report of deceased Ishrat on 28.9.1984 and handed over the dead body at S.B.D. Hospital, Saharanpur, for post mortem examination. P.W. 7 is constable Harveer Singh. He has proved entries made in the Chik FIR which is as Ext. Ka. 10 on record and also proved the relevant G.D. entries as Ext. Ka. 11. He has also made relevant entries in the concerned G.D. regarding arrest of accused Mazid. P.W. 8 is Dr. S.K. Gupta. He conducted post mortem examination on dead body of Ishrat on 29.9.1984 and has also proved post mortem report as Ext. Ka. 13. P.W. 9 is Dr. R.D. Sharma who examined injured Irfan, Firdaush and accused Mazid and has proved their injury reports as Exts. Ka. 14, 15, and 16. P.W. 10 is Investigating officer B.D. Verma. He has proved his entire investigation and also proved that after conducting investigation, he also filed charge sheets against appellants. P.W. 11 is constable Malkhan Singh. He has sent special report of this case at 14.10 hours on 28.9.1984 to higher authorities and made relevant entry regarding the same which entry was made in G.D. vide Ext. Ka. 26. He also proved his return to the police station vide Rapat no. 30 at 17.50 hours on 28.9.1984 which G.D. entry is Ext. Ka. 27 on record. P.W. 12 is Dr. A.B. Garg who conducted the post mortem examination of deceased Firdaush on 6.10.1984 and has proved the same as Ext. Ka. 28. Ka. 26. He also proved his return to the police station vide Rapat no. 30 at 17.50 hours on 28.9.1984 which G.D. entry is Ext. Ka. 27 on record. P.W. 12 is Dr. A.B. Garg who conducted the post mortem examination of deceased Firdaush on 6.10.1984 and has proved the same as Ext. Ka. 28. Thereafter, the evidence for the prosecution was closed and the statement of accused persons was recorded under section 313 Cr.P.C.. In their statement, the appellants submitted that they have been falsely implicated in this case on account of enmity. Accused Zarif has, inter-alia, submitted that there were two parties in the village one party was led by the 'Telis' community and the other party was led by 'Pathan'-community. He had no enmity with the deceased and he had nothing to do with Nafees. Firdaush and Nafees belonged to the same party. He has not committed any such offence, but he came to know about the death of deceased (Ishrat) at 6 a.m. in the morning. The member of Pathan party had gathered on the spot. The deceased belonged to Pathan party and all these members have wrongly implicated the appellants. The members of both the parties were challaned by the police. Irfan is maternal uncle of deceased and witness Mauhind is friend and next door neighbour of deceased. No ocular testimony has been given by the defence. However, they have filed certain documents in support of their claim of Parti-bandi in the village between 'Telies' and 'Pathan'. Certain documents have been referred to reflecting on inimical terms. Certain documents have also been filed to impeach credibility of the witness Mauhind. The learned trial Judge thereafter heard arguments extended on behalf of the prosecution and the defence and appraised the entire evidence and circumstances on merits and passed aforesaid judgment and order of conviction and sentence dated 22.12.1986. Consequently, this appeal. It has been vehemently claimed on behalf of the appellant that the incident, in fact, was caused in the darkness of night and no one has seen the incident and their bodies were lying in the locality which was inhabited by members of Teli community due to which the complainant's side apprehended that injures might have been caused by the appellants which fact if considered properly vis-a-vis circumstances will be established from record. Eye witnesses, though claim to have been present on the spot, have not given similar version of manner of assault and firing being caused and different version have come forth and testimony of both witnesses of fact (PW-1 and PW-2), is different in material particulars from each other. Even doctor witness who conducted post mortem examination has expressed opinion that death of Ishrat may be possibly caused in the morning around 3-4 O' clock on 29.8.1984. Further it is quite strange that witnesses have also named the weapon to which each of the eight assailants were possessing. The nature of injuries so caused on the person of injured and deceased as claimed by the witnesses, do not conform to the weapons used in the offence. It has come in the testimony of the witnesses that all the assailants have caused injuries and weapons used are knife and Palkati, but there are no incised wound on the complainant side. It is stated that two shots hit Firdaush but there is only one fire arm injury. P.W.1, was not even present on the spot. He did not go at the place of occurrence, then how he has sustained injuries? The main perpetrator of crime, though assuming it to be, was Nafees, he is no more and his appeal has since been abated. On behalf of the State, Shri Mahendra Singh Yadav, learned A.G.A. has engaged attention of this Court to the testimony of P.W. 1 and 2 and submitted that the prosecution version and causing of fire arm injuries were proved by the testimony of these witnesses of fact. Firdaush, after receiving the injuries remained under treatment from 28.9.1984 to 6.10.1984 and he succumbed to his injuries at last. The firing/shots at the time of occurrence, was in fact, two or more than two but it has not come exactly as to how many number of shots hit the deceased or the injured. It is true that Ishrat sustained wound of gun shot but this does not negate firing of two shots on the spot by the assailants. The case of prosecution is consistently proved beyond reasonable doubt. Learned AGA further added that the Investigating Officer has collected blood stained and plain soil from the spot where dead body of Ishrat was found and also collected blood stained and simple soil from the place, where Firdaush was lying injured. The case of prosecution is consistently proved beyond reasonable doubt. Learned AGA further added that the Investigating Officer has collected blood stained and plain soil from the spot where dead body of Ishrat was found and also collected blood stained and simple soil from the place, where Firdaush was lying injured. Attention of the Court was also engaged on the statement of one of the appellants given under section 313 Cr.P.C. wherein it has been stated that when the accused persons got awakened in the morning, they came to know about the dead bodies lying on the spot. However, there was lying only one dead body that of Ishrat. P.W. 1, no doubt, in clear cut terms stated that only one fire had hit deceased and it has not been specifically stated at what seat of body did the shot hit the deceased. Therefore, theory of two shots being fired is correct but only one fire hit the deceased is also correct and no sane person will ever spare the real perpetrator of crime and falsely implicate the innocent persons when the deceased is nephew or close relative of the witness. More so, the incident took place in broad day light around 7.45 A.M. in the morning, otherwise, such vivid expression, manner and style of assailants could not have been given by the witnesses of fact. Latches committed by the Investigating Officer or minor contradictions will not throw away prosecution case. We have considered the rival submissions and gone through the entire record of the case. The moot point that arises for consideration, in this appeal relates to the fact as to whether eye witness account testimony as given by P.W. 1 and 2, Irfan, Mauhind, respectively, is wholly reliable, partly reliable, or not reliable and whether the prosecution has been able to prove its case against the appellants beyond reasonable doubt? In so far as the present incident is concerned, before we examine the meritorial aspect of the case, we may scrutinize about the motive alleged by the prosecution for committing the offence. It has come in the first information report itself that Nafees was demanding Rs. 2,000/- for past two days from Firdaush and Ishrat which they did not pay. This was said to be the immediate cause of assault being caused by the assailants. It has come in the first information report itself that Nafees was demanding Rs. 2,000/- for past two days from Firdaush and Ishrat which they did not pay. This was said to be the immediate cause of assault being caused by the assailants. No doubt, in case of direct and immediate testimony by eye witnesses, motive is relegated to background and becomes insignificant, but here in this case, the motive so suggested has not been overruled specifically by the defence and no suggestion, whatever, was put to the prosecution witnesses of fact, therefore, motive suggested by the prosecution ought to be believed reasonably and acted upon as such and may be treated to be an opportunity or incentive for committing the offence by the appellants. Now, we may enter into merits of this case by careful scrutiny of testimony of PW-1 and PW-2, the eye witnesses produced by the prosecution before the trial court. P.W. 1 Irfan and P.W. 2 Mauhind have narrated details of the incident and the manner in which it was caused. It has come in their testimony that the Abadi of Teli Locality is extended to southern side of temple of Shivjee and shop of Mustaq (accused since dead) is located about 150 paces/steps towards south of this temple and flour mill of Bhurey is located towards south of his shop. There was a street towards south of flour mill and house of Ibrahim Bharbhuja is located towards south of the street. Eye witness account testimony of the incident has been given by Irfan PW-1 that the accused belonged to Kailashpur and they are Teli by caste. The incident took place around 7:45 a.m. when Firdaus was going for repairing his watch, he was also following him at a little distance. Nafees met him near the temple. Nafees pointed a gun on his neck and took him to the locality of Telis. In the meanwhile, younger brother of Firdaus, namely Ishrat also arrived at the spot. He was going to attend his duties in foremost dairy. This witness and Ishrat tried to pacify Nafees and begged for the same, in the meanwhile, Nafees arrived at the shop of Mustaq along with Firdaus where he called Mustaq, Zarif, Ismail, Furkan, Ikram, Ali Hasan and Mazid. He was going to attend his duties in foremost dairy. This witness and Ishrat tried to pacify Nafees and begged for the same, in the meanwhile, Nafees arrived at the shop of Mustaq along with Firdaus where he called Mustaq, Zarif, Ismail, Furkan, Ikram, Ali Hasan and Mazid. Mustaq was possessing Palkati (sharp edged weapon), Nafees was possessing pistol, Furkan was possessing knife, Zarif was possessing spear, Ali Hasan was possessing Lathi and Mazid was possessing axe, Ikram was also possessing Palkati and Ismail was also possessing Lathi. They began to beat Firdaush and Isharat. This witness was also beaten when he tried to intervene in the ongoing assault. Nafees fired from his pistol/gun and it is stated that Nafees fired two shots on Ishrat which shot hit Isharat due to which he fell down and died. Firdaush rushed to the house of Ibrahim Bharbhuja in injured condition, but the assailants chased him and beat him inside the house. The incident was witnessed by few others say Nasim, Ajaz Khan and Mauhind etc. The assailants escaped from scene towards southern side. The report of the incident was got scribed by one Waris Ali Khan and the same was sent to the police station. It has been stated that Nafees was demanding Rs.2000/- from Ishrat and Firdaush for past two days prior to the incident. This witness has also proved the report Ext. Ka-1 and clothes of Firdaush, which contained blood stains, were handed over to the Investigating Officer, memo of which is Ext Ka-2. More or less version of the incident has been given by another eyewitness Mauhind PW-2 in the same vein. He too has stated that he was going to take flour from flour mill but the same was closed. While returning, he saw Nafees pointing gun on the neck of Firdaush and was taking him to the locality inhabited by Telis. He was being followed by Ishrat and Irfan who were trying to reconcile him (Nafees). As soon as Nafees arrived at the shop of Mustaq, he called the other accused persons who were possessing Palkati, Lathi, knife, spear and axe. They all opened assault and at that juncture, Nafees opened fire on Ishrat who fell down and died on the spot. As soon as Nafees arrived at the shop of Mustaq, he called the other accused persons who were possessing Palkati, Lathi, knife, spear and axe. They all opened assault and at that juncture, Nafees opened fire on Ishrat who fell down and died on the spot. Firdaush rushed to the house of Ibrahim Bharbhuja in injured condition but the assailants pursued him upto inside house and beaten him in the house of Ibrahim. Incidence was witnessed by other persons. It has been stated by PW-2 that report and Firdaush were taken to the police station by Ajaz, Nawab and Mubarak in Metadoor and arrived at the police station Gogalheri at 8:30 a.m. Both the eyewitnesses have been crossed examined and they have come out with the version that two shots were fired by Nafees on Ishrat. At this stage, attention of the Court was engaged to the post mortem report of Ishrat. Five ante mortem injuries have been found on his body, out of which injury no.1 was circular lacerated wound 2.2 cm x 2 cm x brain deep on the right side head, 10 cm above right ear. Brain matter and blood was coming out of the wound..... There were 37 small irregular metallic pieces in the brain matter. The scalp was fractured and in the opinion of the doctor, injury no.1 was sufficient in ordinary course of nature to cause death. All these five ante mortem injuries on the body of the deceased may, in the opinion of the doctor, be caused at 7:45 a.m. on 28.09.1984. Injury nos. 2, 3, 4 and 5 are abrasions and contusions respectively. Dr. S.K. Gupta, PW-8 who conducted post mortem examination has not been specifically challenged that in no case, injury can be caused at 7:45 a.m. on 28.09.1984 and only this much suggestion has been given in the cross examination of PW-8 that the deceased may have died around 3 or 4 O' clock in the morning. At this juncture, it is most relevant to take into consideration injuries found on the person of Firdaush in his medical examination (Exhibit Ka-14). In this context, PW-9 R.D. Sharma has testified that he examined Firdaush in S.B.D. Hospital Saharanpur on 28.09.1984 at 9:30 and he found as many as 11 injuries on his person. Out of these 11 injuries, injury no.8 was referred to Eye Surgeon. X-ray was advised for injury nos. In this context, PW-9 R.D. Sharma has testified that he examined Firdaush in S.B.D. Hospital Saharanpur on 28.09.1984 at 9:30 and he found as many as 11 injuries on his person. Out of these 11 injuries, injury no.8 was referred to Eye Surgeon. X-ray was advised for injury nos. 1, 2, 7, 8, 9 and 11 whereas injury nos. 1, 2, 8, 9 10 and 11, in the opinion of the doctor, may have been caused by some blunt object like Lathi. Injury no.3, 4, 5, 6, 7 may have been caused by weapon like spear, knife, Palkati and axe. Injury report of the then injured Firdaush has been proved as Ext. Ka-14 and duration of these injuries was said to be fresh. He has further stated that these injuries were sufficient in ordinary course of nature to cause death. He has also stated in clear cut terms that these injuries may have been caused around 7:45 a.m to 8:00 a.m. on 28.09.1984. There is nothing on record to lead us to infer that the death of Ishrat or injury to Firdaush was caused in the morning of 28.09.1984 around 3 or 4 a.m. Therefore, suggestion to the extent that assault was caused at 3 or 4 O' clock in the morning stands overruled in view of the above specific testimony of the doctor PW-8 and PW-9 (Dr. R.D. Sharma) as well as injury on the person of Firdaush, proved as Ext Ka-14. In this view of the matter, now consideration is confined to the point about presence of witnesses PW-1 and PW-2 on the spot. It is obvious that both the witnesses have stated that the incident took place on 28.09.1984 at 7.45 a.m. when the deceased Ishrat was going to attend his duties at the foremost dairy and there is nothing on record which may establish that the deceased Ishrat was not going to attend his duties in the foremost dairy. Nafees had pointed his gun on the neck of Firdaush and took him to the shop of Mustaq where he called his accomplices who were 7 in number and they arrived at the spot possessing different weapons in their hands and they beaten up the complainant's side and caused injuries on Firdaush and death of Ishrat. Later on, Firdaush, too, succumbed to his injuries and died on 06.10.1984. Later on, Firdaush, too, succumbed to his injuries and died on 06.10.1984. It has been stated that PW-2 was going to flour mill for taking flour but flour mill was closed. Had there been any extraneous or ulterior motive, PW-2 could have taken even more better excuse for his presence on the spot. Merely because, the Investigating Officer did not record statement of the owner of the flour mill, that by itself will not nullify testimony of PW-2. PW-2 has been named in the first information report as the person who witnessed the incident. Further, it has come in the testimony that Firdaush was under medical treatment from 28.09.1984 to 06.10.1984 when he died. Testimony of S.I. Satyaveer Singh PW-3 is relevant. As per his testimony, he was informed by some employees of S.B.D. Hospital, Saharanpur, about death of a man namely Firdaush. Thereafter he rushed to the hospital and prepared inquest report (Ext Ka-3) and relevant formalities were completed for ensuring post mortem examination. PW-5 Constable Ram Singh has proved that he took dead body of Firdaush to mortuary, Saharanpur but it is obvious that no statement of Firdaush could be recorded during 6-7 days when he was under treatment. May be that he was not in a position to speak or he remained under semi conscious or unconscious condition. Post mortem examination on the dead body of Firdaush was conducted by PW-12, Dr. A.B. Garg on 06.10.1984 at 4:20 p.m. He has noted as many as 8 ante mortem injuries on his body and on internal examination of head, he found frontal bone fractured, fracture of left temporal bone, membranes congested, haematoma present on the brain infront part and pus present in the frontal part and top of the brain. This post mortem report is Ext. Ka-28 on record and in the opinion of the doctor, the cause of death was due to coma and septicaemia. These injuries were sufficient to cause death of the injured and can be attributable to the act of the appellants. PW-11 Constable Makhan Singh has proved fact that he sent special report at Case Crime No.82 of 1984 to the District Magistrate and the reference of the same has been noted in Rapat No.25 at 14:10 hours on 28.09.1984 and copy of the same has been exhibited as Ext. PW-11 Constable Makhan Singh has proved fact that he sent special report at Case Crime No.82 of 1984 to the District Magistrate and the reference of the same has been noted in Rapat No.25 at 14:10 hours on 28.09.1984 and copy of the same has been exhibited as Ext. Ka-26 and he returned to the police station at 17:50 hours and a mention of the same has been made in the relevant G.D. Rapat No.30 of the same day which G.D. has been proved as Ext. Ka-27. Entry of chik FIR and registration of the case in the relevant G.D. has been proved by constable Harveer Singh PW-7 as Exts Ka-10 and 11 respectively. This witness has also proved that Mazid was taken to the police station on 28.09.1984 at 11.10 a.m. and entry was made in Rapat No.22 of the same date. Thereafter he was sent for medical examination to S.B.D. Hospital Saharanpur where he was medically examined at 11:30 a.m. by PW-9- Dr. R.D. Sharma. The Investigating Officer, B.D. Verma PW-10 has stated that he arrived at the spot around 9:30 a.m. As per his testimony, the case was registered at the police station in his presence and he himself took over the investigation of the case and thereafter he completed all formalities of the investigation and prepared various memos particular among them, being memo of clothes of the injured Firdaush (who later on died) and has proved the same as Ext. Ka-2. The Investigating Officer has also proved collection of plain and blood stained soil from the place where the deceased Ishrat was lying and same has been proved as Ext. Ka-21. The Investigating Office has also collected plain and blood stained soil from the place where Firdaush was lying injured and proved it as Ext. Ka-22. The Investigating Officer has been extensively cross examined wherein nothing material has surfaced which may throw any doubt on the point regarding the place and time of the occurrence and to say that the death was caused somewhere else around 3 or 4 O' clock in the morning on 28.09.1984, does not inspire confidence and remains a morbid suggestion. No doubt, it has been stated in the testimony of the eyewitnesses that two shots were fired which hit the deceased Ishrat and post mortem report of the deceased Ishrat indicates one firearm injury on his head. No doubt, it has been stated in the testimony of the eyewitnesses that two shots were fired which hit the deceased Ishrat and post mortem report of the deceased Ishrat indicates one firearm injury on his head. There is no second firearm injury but it is common sense that a rustic person who witnessed an incident always gives narration of the incident according to his common perception but the point is that both the witnesses have not stated about the seat of firearm injury but have merely stated that two shots were fired. It is not testimony that one shot hit at particular seat of body and another shot hit at another particular seat of body, therefore, it is possible that two shots may have been fired but only one hit the deceased. In the perception of both the eyewitnesses, they have narrated that the same as both hit the deceased. Further 37 metallic pieces have been recovered from injury no.1 (on head) caused to the deceased. Moreover, in cross examination of both eyewitnesses specific question regarding seat of injury has not been put. Therefore, theory of two shots being fired upon the deceased will not throw any doubt regarding the manner and style of the occurrence. The defence has not come out with specific assertion as to how and under what circumstances, injuries were caused to Firdaush (who died later on) which injuries were said to be fresh by the doctor (PW-9) and he has stated that these injuries may have been caused around 7:45 a.m. to 8:00 a.m. on 28.09.1984. This piece of testimony in the absence of any particular change stands established and there is no reason as to why this specific testimony supported by evidence and circumstances should be disbelieved merely on the asking of the defence. In this view of the matter, it is obvious that special report of the incident was also sent to the District Magistrate the very same day on 28.09.1984 at 14:10 hours on which day the first information report was lodged and the constable who took special report to the District Magistrate, Saharanpur, returned to the police station around 17:50 hours the very same day. These circumstances vis-a-vis testimony on record in clear cut terms dispel suggestion that the first information report is ante timed. Therefore, the plea raised by defence regarding FIR being ante timed is not tenable. These circumstances vis-a-vis testimony on record in clear cut terms dispel suggestion that the first information report is ante timed. Therefore, the plea raised by defence regarding FIR being ante timed is not tenable. This is also quite relevant as to how and why the complainant's side who lost two persons will ever spare the real assailants and implicate falsely the appellants just because the complainant and the appellants belonged to two different castes one 'Pathan' and the other 'Teli'. Even no circumstance has been brought forward which may suggest testimony of PW-1 and PW-2 not wholly reliable. The testimony of PW-1 and PW-2 corroborates each other in material particulars and whatever little contradictions are appearing in their testimony, the same are of trivial nature and do not hit to the core of the occurrence. Here graphic account of the incident qua circumstances of the case as given by two witnesses of fact (PW-1 and PW-2) reveals the truth rather than any ulterior motive or extraneous object with which the witnesses have been suggested to be embellished with. Their testimony as a whole inclines more in favour of unravelling truth and which reasonably establishes the guilt beyond doubt rather than revealing their unfairness or bias. Merely because, the witnesses are relatives that by itself is not a bar from believing their testimony, which upon careful scrutiny is discovered to be reliable and inspiring confidence. There is no whisper that two witnesses of fact were personally interested in achieving conviction of the appellants and they have malice against them and until and unless these extraneous ramification emerge from surrounding circumstances of the case and testimony on record, it would be unsafe to discard their testimony on account of their being relatives and friend. This aspect of the case has been elaborately dealt with and explained by Hon'ble Apex Court in the case of Gurjit Singh @ Gora and another Vs. State of Haryana (2015) 2 SCC (Crl.) 624. The trial court has taken consistent view of the matter and has come out with specific findings and recorded conviction against the present appellants and by virtue of Section 149 IPC constructive criminal liability has been justifiably imputed against all the accused persons because the offence has been committed by the accused persons after forming an unlawful assembly in prosecution of their common object. It cannot be said that the appellants did not know that such offence is likely to be committed, therefore, every person who was present at the time of commission of this offence is accountable for the act of the other accused persons. In this view of the matter, the trial court has also considered the various facts and circumstances of the case and has recorded just conviction. On careful appraisal, we do not find any inherent or apparent error in the impugned judgment and order of the trial court. The objectivity of any judicial scrutiny is to unravel truth by separating grains from chaff. Considering the entirety of the case and particularly, the circumstances and testimony on record, we are of the opinion that on the face of clinching evidence on record, the trial court has rightly recorded conviction of the appellants which does not warrant interference by this Court. The impugned judgment and order dated 22.12.1986 passed by II-Additional Sessions Judge, Saharanpur, in Sessions Trial No.02 of 1985 arising out of Case Crime No.82 of 1984 under Sections 147, 148, 302/149 and 323/149 IPC, Police Station Gagalheri, District Saharanpur, is upheld. Consequently, the instant criminal appeal being devoid of force is dismissed. In this case, four surviving appellants Iqram, Zarif, Ali Hasan and Ismail are on bail. Their personal bonds are cancelled and sureties stand discharged. They be taken into custody forthwith and lodged in jail for serving out the remaining sentences imposed upon them by the trial court. Let a copy of this order be certified to the court concerned for information and necessary follow up action.