JUDGMENT : Both the criminal appeals, arising out of the same case, were heard together and are being disposed of by the common judgment. 2. The appellants were put on trial on the accusation of committing murder of one Sumit Harswardhan by causing firearm injury in furtherance of their common intention. The trial court having found these appellants guilty of the charges convicted them for the offences punishable under Section 302/34 of the Indian Penal Code and under Section 27 of the Arms Act vide its judgment dated 17.2.2007 passed in Sessions Trial No. 117 of 2002 and sentenced each of them to undergo rigorous imprisonment for life for the offence under Section 302/34 of the Indian Penal Code vide order dated 26.9.2007. However, no separate sentence was awarded for the offences punishable under Section 27 of the Arms Act. 3. The case of the prosecution, as reflected from the fardbeyan (Ext.3) of the informant-Raghubir Sharan Verma (since died), is that on 5.9.1998 at about 7:00pm while he was in his house, one boy riding a bicycle came there and informed that one of his sons, who was returning from Kagjee Mohalla, along with others has sustained firearm injury and has been taken to the hospital. Upon knowing this, the informant immediately reached to the hospital where he was told by his son-Amit Rajwardhan (P.W.5) that while he along with his other brothers Rohit Yaswardhan (P.W.6), Sumit Harshwardhan (deceased) and three persons were returning from Kagjee Mohalla, both these appellants as well as one Guddu started resorting to firing upon them as a result of which, Sumit Harshwardhan after being hit by bullet fell down there. Thereupon, with the help of others, Sumit Harshwardhan was brought to the hospital where the doctor declared him dead. Meanwhile, the Officer In-charge of Siwan (Nagar) police station on being informed about the incident reached at the hospital where he recorded the fardbeyan (Ext.3) of informant-Raghubir Sharan Verma (since died) who narrated about the incident as has been stated above. Thereupon, with the help of others, Sumit Harshwardhan was brought to the hospital where the doctor declared him dead. Meanwhile, the Officer In-charge of Siwan (Nagar) police station on being informed about the incident reached at the hospital where he recorded the fardbeyan (Ext.3) of informant-Raghubir Sharan Verma (since died) who narrated about the incident as has been stated above. At the same time, it was also stated that on 9.3.1998, appellant- Thakur Ujjwal Kumar @ Raju had come to his house along with one Binod and resorted to firing as a result of which Amit Rajwardhan (P.W.5) had sustained injuries for which a case has been lodged under Section 307 of Indian Penal Code On account of it appellant-Thakur Singheshwar Kumar @ Chhote had visited his house along with Bipendra Kumar Verma, a Public Prosecutor, at couple of occasions, for asking him to compromise the case, but he did not agree to their proposal. In the morning also, the appellant-Thakur Ujjwal Kumar @ Raju had come to his house along with Guddu and held out threat of dire consequence. 4. On the basis of the said fard beyan, a case was registered against these appellants as well as Guddu and a formal FIR was drawn. 5. After institution of the case, one Promod Poddar (P.W.7) took up the investigation during which when he visited the place of occurrence, he found the mark of blood over there. Upon holding inquest on the dead-body of the deceased, the Investigating Officer prepared an inquest report (Ext.6), whereupon the dead-body was sent for postmortem examination which was conducted by Dr. Sashi Bhushan Sinha-P.W.8 who upon holding autopsy on the dead-body of the deceased did find the following external injuries:- i. Lacerated wound 1” diameter with charred margin of 2” circumference to the wound having inverted margin over posterior axillary line at the level of 7th and 8th ribs on left side - wound of entry. No tattooing mark was found around the wound. ii. Lacerated wound 1/2” x 1/2” with everted margin 1” left lateral to left claviculo sternal joint. On dissection Chest - Left plural cavity was full of blood and left lung was grossly lacerated. Fracture of 7th and 8th ribs. Both chambers of heart were found empty. Arch of aorta was ruptured. Fracture of left sterno claviculor joint. 6. ii. Lacerated wound 1/2” x 1/2” with everted margin 1” left lateral to left claviculo sternal joint. On dissection Chest - Left plural cavity was full of blood and left lung was grossly lacerated. Fracture of 7th and 8th ribs. Both chambers of heart were found empty. Arch of aorta was ruptured. Fracture of left sterno claviculor joint. 6. The doctor issued postmortem examination report (Ext.7) with an opinion that the death was caused due to haemorrhage and shock on account of above mentioned injuries caused by firearms. Meanwhile, the Investigating Officer also recorded the statements of the witnesses. 7. On completion of the investigation, when the charge-sheet was submitted against these appellants, cognizance of the offences was taken against these appellants and in due course when the case was committed to the Court of Sessions, these appellants were put on trial. 8. During trial, the prosecution in order to prove its case examined as many as 9 witnesses. Of them, P.W. 1-Sujit Kumar, P.W.2- Vijay Kumar have testified that while they were in the shop/house, they heard sound of firing and when they came out, they saw one boy being injured. Further they did testify that they did not see anyone firing shot upon the deceased. P.W.3-Durga Prasad has turned hostile. P.W. 4- Santosh Kumar Singh, P.W.5-Amit Rajwardhan and P.W.6-Rohit Yas Vardhan (both brothers of the deceased) did testify that they along with Durga Prasad (P.W.3), Viresh and Ashish (not examined) have gone to the place of the doctor for bringing some medicines but the doctor was absent and, therefore, they started returning. In course of return, when they reached near Raju Medical Hall situated near Marriage Hall, these two appellants as well as Guddu suddenly came out of an alley having pistols with them and surrounded Sumit Harshwardhan (deceased). Of them, appellant-Thakur Singheshwar Kumar @ Chhote and Guddu fired shots but it did not hit to Sumit Harshwardhan. Upon it, when Sumit Harshwardhan tried to flee from there, appellant-Thakur Ujjwal Kumar @ Raju fired shot upon him by sitting on the ground which hit on the back of the deceased-Sumit Harshwardhan as a result of which he fell down. After seeing this, they fled from there. After going to some distance when they turned around, they did find the deceased being surrounded by them. After seeing this, they fled from there. After going to some distance when they turned around, they did find the deceased being surrounded by them. When the accused persons went away, they (P.W.5-Amit Rajwardhan and P.W.6-Rohit Yas Vardhan) brought their brother to the hospital on a rickshaw where the doctor declared him dead. Meanwhile, when the police reached over there, he recorded the statement of the informant. They also stated about the earlier incident in which appellant- Thakur Ujjwal Kumar @ Raju and Binod had come to the house of the informant and had fired shot causing injuries to Amit Rajwardhan (P.W.5) for which occurrence, a case had been lodged but the accused persons and one Bipendra Kumar Verma were pressuring the informant to compromise the case but the informant never agreed to it and, therefore, the deceased was done to death. 9. After closure of the prosecution case, when the appellants were questioned under Section 313 of Cr.P.C. over the incriminating evidences/materials appearing against them, they denied. 10. The defence in support of their case of being innocent, examined three witnesses. Of them, D.W.1-Jawahar Prasad Gupta has testified that when he had gone to purchase some medicines for her mother from Raju Medical Hall, he heard sound of firing and when he came out of the shop, he found the deceased lying injured on the ground. Thereafter he informed about it to the father of the deceased. He has further testified that he did not see there any of the appellants. Similar is the testimony of D.W.2-Ganesh Prasad wherein he did testify that when he heard Hulla, he came near Raju Medical Store where he found Sumit Harshwardhan lying on the ground. There, he did not see any of the accused persons. Further, he did testify that on finding Sumit Harshwardhan injured, Jawahar Prasad Gupta-D.W.1 went to inform the father of the injured who came along with P.W.5-Amit Rajwardhan and P.W.6-Rohit Yas Vardhan but by that time D.W.3-Lalan Pandey had taken the injured to hospital. D.W.3-Lalan Pandey has never said so that he took the injured to the hospital rather he did testify that he had asked the others to take the injured-Sumit Harshwardhan to hospital. According to him, Sumit Harshwardhan was shot at near Raju Medical Store from where he saw 3-4 unknown persons fleeing away. The father of injured-Sumit Harshwardhan was informed by D.W.1. According to him, Sumit Harshwardhan was shot at near Raju Medical Store from where he saw 3-4 unknown persons fleeing away. The father of injured-Sumit Harshwardhan was informed by D.W.1. On knowing this, when the father of injured-Sumit Harshwardhan and his two sons (P.W.5-Amit Rajwardhan and P.W.6-Rohit Yas Vardhan) came to the place of occurrence, Sumit Harshwardhan had already been taken to the hospital. 11. Thereupon the trial court having taken into account the facts and circumstances of the case did disbelieve the testimonies of the defence witnesses but placed its reliance on the testimonies of P.Ws. 4, 5 and 6, the eye witnesses, getting corroboration from the medical evidence, and thereby it did find the appellants guilty for committing murder of the deceased and accordingly recorded the judgment of conviction and order of sentence against the appellants, which is under challenge. 12. Mr. Kaushik Sarkhel, learned counsel appearing for the appellants, submits that P.Ws. 4, 5 and 6, the eye witnesses, in course of trial did testify that it was appellant-Thakur Ujjwal Kumar @ Raju who fired shot upon the deceased causing injuries and at the same time, they have also testified that before appellant-Thakur Ujjwal Kumar @ Raju fired shot, appellant-Thakur Singheshwar Kumar @ Chhote and one Guddu had fired shots which did not hit to the deceased (Sumit Harshwardhan) but said piece of evidence of the eye witnesses can be taken to be improvement/ embellishment, as the said fact is not there in the fardbeyan of the informant though the informant after coming to know about the incident from their sons (Amit Rajwardhan and Rohit Yas Vardhan) had made statement. Still the appellant-Thakur Singheshwar Kumar @ Chhote has been convicted for the offence under Section 302/34 of Indian Penal Code though he, as per the eye witnesses, fired shot but it did not hit the deceased and thereby his conviction is absolutely wrong particularly when appellant-Thakur Singheshwar Kumar @ Chhote had had no enmity with the deceased which gets strengthened from the fact that all previous cases, which the prosecution side lodged, had never been lodged against appellant-Thakur Singheshwar Kumar @ Chhote and thereby appellant-Thakur Singheshwar Kumar @ Chhote cannot be said to have been sharing common intention and as such his conviction under Section 302/34 of Indian Penal Code is bad. Further, it was pointed out that the appellant-Thakur Singheshwar Kumar @ Chhote though is said by P.Ws. 5 and 6 to have gone with Dependra Kumar Verma, Public Prosecutor, to the house of the deceased for impressing upon the father of the deceased to compromise the case but the testimonies of the witnesses to that effect can easily be taken to be an afterthought, as they had never made such statements before the police under Section 161 Cr.P.C. Further submission, which was made on behalf of the defence, is that there has been delay of two days in transmitting the first information report to the court for which no explanation has been given and thereby the first information report has become a suspicious piece of document. Further submission is that according to the doctor, there has been one wound of entry caused by firearms and that apart, one more injury was there but according to the doctor, second injury has never been caused by firearms and thereby ocular testimonies do not find support from the medical evidence and this belies the entire prosecution case. It was also submitted that the appellant-Thakur Singheshwar Kumar @ Chhote was not inimical to the deceased or his family and therefore, there was no reason on his part to commit murder of the deceased though he has been alleged to have fired shot upon the deceased which missed and thereby he at best can be said to be guilty for the offence under Section 307 of the Indian Penal Code. In this respect, reliance was placed on the decision rendered in a case of Akaloo Ahir Vs. State of Bihar { (2010) 12 SCC 424 }. 13. As against this, Mr. Sameer Saurabh, learned counsel appearing for the informant, as well as learned counsel for the State, submit that there has been no reason to discard the testimonies of P.Ws. 4, 5 and 6, the eye witnesses, who were along with the deceased when the deceased was shot dead. 13. As against this, Mr. Sameer Saurabh, learned counsel appearing for the informant, as well as learned counsel for the State, submit that there has been no reason to discard the testimonies of P.Ws. 4, 5 and 6, the eye witnesses, who were along with the deceased when the deceased was shot dead. On the other hand, the witnesses, examined on behalf of the defence, do not appear to be trustworthy, as their conduct never appears to be natural and that according to their testimonies, factum of the deceased being killed near Raju Medical Hall, as has been the case of the prosecution, gets established, as they have admitted the said facts and that numbers of circumstances are there to establish that appellant-Thakur Singheshwar Kumar @ Chhote was sharing common intention with the other accused and thereby both the appellants have rightly been convicted. 14. In this regard, it was submitted that all the witnesses have stated that first firing was made upon the deceased by appellant-Thakur Singheshwar Kumar @ Chhote and Guddu which did not hit the deceased and when the deceased started fleeing away, it was appellant-Thakur Ujjwal Kumar @ Raju who fired shot upon the deceased hitting him on his back. Thereupon, all the accused persons remained near the deceased till he died and then they fled away from there and that it was appellant-Thakur Ujjwal Kumar @ Raju who had come to the house of the deceased before the occurrence took place along with Bipendra Kumar Verma, Public Prosecutor, for impressing upon the father of the deceased to go for compromise in the case for which the father of the deceased did not agree and thereafter occurrence took place and under the circumstances, it is evident that all the accused persons were sharing common intention to kill the deceased. Hence, the trial court was absolutely justified in recording the judgment of conviction and order of sentence against the appellants which never warrants to be interfered with by this Court. 15. Hence, the trial court was absolutely justified in recording the judgment of conviction and order of sentence against the appellants which never warrants to be interfered with by this Court. 15. Having heard learned counsel for the parties and on perusal of the records, we do find that it is the case of the prosecution that while the deceased was returning back along with his two brothers (P.W.5-Amit Rajwardhan and P.W.6-Rohit Yas Vardhan) as well as Durga Prasad (P.W.3) and Viresh and Ashish (both not examined) and reached near Raju Medical Hall, these two appellants as well as accused-Guddu came out of an alley having pistols with them and surrounded Sumit Harshwardhan (deceased) and then appellant-Thakur Singheshwar Kumar @ Chhote and Guddu fired shot upon Sumit Harshwardhan which did not hit him. Meanwhile, Sumit Harshwardhan started fleeing away from there but appellant-Thakur Ujjwal Kumar @ Raju by sitting on the ground fired shot upon him hitting on his back as a result of which Sumit Harshwardhan fell down. Seeing Sumit Harshwardhan being fired at, all the eye witnesses fled from there and while fleeing away, they saw all the accused persons surrounding the deceased. Thereupon, they brought the injured-Sumit Harshwardhan to the hospital on a rickshaw where the doctor declared him dead. Meanwhile, the informant-Raghubir Sharan Verma (since died) on getting information of the incident reached over there and gave his fardbeyan wherein it was stated that while the deceased along with the said eye witnesses were returning from Kagjee Mohalla, both the appellants resorted to firing as a result of which, Sumit Harshwardhan sustained injuries. Since it is not there in the fardbeyan that the shot fired by the appellant-Thakur Singheshwar Kumar @ Chhote and Guddu did not hit the deceased and that when Sumit Harshwardhan started fleeing away, appellant-Thakur Ujjwal Kumar @ Raju fired shot by sitting on the ground which hit the deceased. Submission is being advanced that the testimonies of all the witnesses are tainted with embellishment. 16. It be stated that the occurrence seems to have been taken place at 6:00 to 6:30pm. Within an hour the informant gave his fardbeyan and in such situation, one can imagine the state of mind of the informant who happened to be the father of the deceased. In such situation, it is not expected that one would narrate about the incident in its minutest details. Within an hour the informant gave his fardbeyan and in such situation, one can imagine the state of mind of the informant who happened to be the father of the deceased. In such situation, it is not expected that one would narrate about the incident in its minutest details. Under the circumstances, it is not acceptable that the testimonies of P.Ws. 4, 5 and 6 are tainted with embellishment particularly when nothing is there on the record to doubt the presence of the eye witnesses at the place of occurrence. 17. It would be relevant to state here that the defence has examined three witnesses in order to establish that the deceased was killed not by the appellants but by some unknown persons, as they had not seen the appellants at the scene of crime but on scrutiny of their evidences, we do not find them trustworthy. 18. It be stated that D.W.1 has claimed to be the friend of Sumit Harshwardhan (deceased). In spite of that, he by leaving the injured/deceased at the place of occurrence, claimed to have come to inform to his father instead of taking him to the hospital, but nobody has supported his version. Furthermore, if he being the friend of the deceased would have informed the father of the deceased, he would have named him as the person who had informed about the incident. 19. Further, we do find that as per the evidence of P.W.2, the informant and his two sons (P.Ws. 5 and 6) on being informed about the incident came to the place of occurrence but by the time, Lalan Pandey- D.W.3 has taken the injured/deceased to the hospital but surprisingly D.W.3 in his evidence has not admitted that it was he who had brought Sumit Harshwardhan to the hospital. In such event, keeping in view the testimonies of the eye witnesses (P.Ws. 4, 5 and 6) to the effect that they were with the deceased at the time of occurrence which could not be shaken by the defence and the testimonies of the defence witnesses are not worth acceptable. 20. On the other hand, testimonies of the eye witnesses (P.Ws. 4, 5 and 6) are worth acceptable as neither their testimonies on the point of their presence at the place of occurrence nor on other points could be taken. 20. On the other hand, testimonies of the eye witnesses (P.Ws. 4, 5 and 6) are worth acceptable as neither their testimonies on the point of their presence at the place of occurrence nor on other points could be taken. In this regard, it be further stated that the eye witnesses have testified that when Sumit Harshwardhan (deceased) was fleeing away, appellant-Thakur Ujjwal Kumar @ Raju fired shot by sitting on the ground which hit on his back which fact gets corroboration from the medical evidence whereby the doctor did find the wound of entry at the level of 7th and 8th ribs whereas other wound having everted margin was found on the other side of the body at left claviculo sternal joint suggesting the path of wound from downward to upward. 21. It would be worth mentioning that the doctor in his crossexamination has testified that injury no. 2 was not caused by firearm but he by saying so does not seem to be correct, as according to him, bullet was not found in the dead-body of the deceased whereas lacerated wound found at claviculo sternal joint was having everted margin which keeping in view the testimonies of the eye witnesses of firing being made by appellant-Thakur Ujjwal Kumar @ Raju by sitting on the ground, one cannot come to other conclusion than that injury no. 2 being wound of exit. 22. Coming to the other aspect of the matter, it be stated that it is true that appellant-Thakur Singheshwar Kumar @ Chhote never caused firearm injury but circumstances are there to establish that he was sharing the common intention. 23. We have already noted that when the deceased was returning along with the eye witnesses, they were accosted by these accused persons including appellant-Thakur Singheshwar Kumar @ Chhote and then appellant-Thakur Singheshwar Kumar @ Chhote and Guddu fired shot but it did not hit the deceased. However, subsequently shot fired by appellant-Thakur Ujjwal Kumar @ Raju hit the deceased on his back. After the deceased was hit, he fell down and then the accused persons kept standing there till he died which is evident from the evidence of P.W.4. However, subsequently shot fired by appellant-Thakur Ujjwal Kumar @ Raju hit the deceased on his back. After the deceased was hit, he fell down and then the accused persons kept standing there till he died which is evident from the evidence of P.W.4. That apart, Amit Rajwardhan (P.W.5) has testified that when a case had been lodged earlier to the occurrence on account of Amit Rajwardhan (P.W.5) being fired at his house, appellant-Thakur Singheshwar Kumar @ Chhote and Bipendra Kumar Verma, Public Prosecutor, had come before the informant to impress upon him to go for compromise but when the informant did not agree to their proposal, they went away carrying anger. In such situation, one can easily draw inference that he was also sharing common intention and thereby the submission made on behalf of the defence is not acceptable that he at best can be held responsible for the offence under Section 307 of the Indian Penal Code. Thus, the case relied upon is in no way helpful to the appellant as Their Lordships in the facts and circumstances did find that nothing was there in the case suggesting even that there was preconcert or proof of a prior meeting of minds between the appellant and the coaccused and thereby the appellant of that case was convicted for the offence under Section 307 of the Indian Penal Code as had been alleged to have fired though it missed the target. 24. Under the circumstances, we do find that the trial court was absolutely justified in recording the judgment of conviction and order of sentence against both the appellants. 25. Accordingly, the judgment of conviction and order of sentence passed against both the appellants is hereby affirmed. 26. Consequently, both the appeals stand dismissed.