JUDGMENT Hon’ble Arvind Kumar Tripathi, J.—Both the above noted Criminal Appeals have been preferred against the judgement and order of conviction and sentence dated 15.4.1986 passed by IInd Additional Sessions Judge, Deoria, in S.T. No. 199 of 1983 (State v. Jagdish Mishra s/o Bhola Mishra, Sugriv Kumar Mishra s/o Jagdish Mishra and Awadh Kishor Mishra s/o Jagdish Mishra) arising out of Case Crime No. 30 of 1983, under Section 302 read with Section 34 and Section 307 read with Section 34 I.P.C., P.S. Bhatpar Rani, District Deoria. All accused-appellants were awarded life imprisonment under Section 302/34 I.P.C. and convicted for 7 years rigorous imprisonment under Section 307/34 I.P.C. and appellants Sugriv Kumar Mishra and Awadh Kishor Mishra were also convicted for two years and one year rigorous imprisonment under Section 25 Arms Act in S.T. No. 37 of 1984. Further direction was issued by the trial Court that all sentences would run concurrently. 2. Since both the above noted Criminal Appeals have been preferred against the same judgement and order of conviction and sentence hence both the appeals were heard and are decided jointly by a common order. 3. Criminal Appeal No. 1173 of 1986 has been preferred by Jagdish Mishra who died during pendency of appeal hence appeal in respect of Jagdish Mishra stands abated. Appellant No. 2 Sugriv Kumar Mishra, appellant No. 3 Awadh Kishor Mishra were convicted under Section 302 read with Section 34 I.P.C. 4. Accused-appellant No. 1 Jagdish Mishra was awarded life imprisonment under Section 302 read with Section 34 I.P.C. for murder of Surya Bali Mishra. He was further awarded life imprisonment under Section 302 I.P.C. for the murder of Ram Pratap Mishra and seven years rigorous imprisonment under Section 307 read with Section 34 I.P.C. The other appellants Sugriv Kumar Mishra and Awadh Kishor Mishra each were awarded life imprisonment under Section 302 IPC read with Section 34 I.P.C. for the murder of Surya Bali Mishra and seven year rigorous imprisonment under Section 307 read with Section 34 I.P.C. Further Sugriv Kumar Mishra and Awadh Kishor Mishra were sentenced to undergo two years and one year rigorous imprisonment respectively under Section 25 arms Act as used of recovery of country-made pistol, ballam respectively were shown from them. 5. Mr. Gopal S. Chaturvedi, Senior Advocate, assisted by Mr. Prashant Vyas and Ms. Shaumya Chaturvedi, learned advocates, appearing on behalf of appellants, Mr. 5. Mr. Gopal S. Chaturvedi, Senior Advocate, assisted by Mr. Prashant Vyas and Ms. Shaumya Chaturvedi, learned advocates, appearing on behalf of appellants, Mr. Sudhir Dixit, learned advocate appeared on behalf of complainant and Mr. A.N. Mullah learned A.G.A. appeared on behalf of the State of U.P. 6. We have heard learned counsel for the parties on 29.2.2016, 3.3.2016 and judgement was reserved. 7. Brief facts of the prosecution case is that F.I.R. was lodged at Police Station Bhatpar Rani by Krishna Kumar Mishra s/o Surya Bali Mishra, r/o Village Bankata Mishra, P.S. Bhatpar Rani, District Deoria. The village known as Bankata Mishra is situated at a distance of about 6 k.m. from police station. As per the First Information Report, one Rajdev Mishra real uncle of the informant was residing with him. There was dispute regarding abadi land in between his cousin Ram Pratap and one Jagdish Mishra of the same Village situated towards western side of his house. There was also a case under Section 107/116 Cr.P.C. in which parties had entered into compromise. Father of the informant Surya Bali Mishra was a Village Pradhan. There was a marriage in his family of one nephew Satya Prakash. After marriage party, they had come back and some of the relatives were also staying there. Satya Prakash is the grandson of deceased Surya Bali Mishra and the marriage was conducted on 26.5.1983 and the marriage party came back on 28.5.1983. The incident took place at about 6:00 a.m. on 30.5.1983. 8. As per allegation, there was enmity between Surya Bali Mishra and accused Jagdish Mishra. There were strained relation in between these two families for about a decade. A civil litigation was also pending between the parties. On 30.5.1983 at about 6:00 a.m. when Surya Bali Mishra, father of the informant alongwith his relatives Shashi Maul Nath Tripathi (son-in-law), Jitendra Dubey were sitting by his side and his cousin Bipin Bihari Mishra and Hitendra Kumar Mishra were sitting at the door of the informant. Breakfast was being served by Krishna Kumar informant, in the meantime due to enmity Jagdish Mishra s/o Bhola Mishra armed with his licensed gun, Sugriv Kumar Mishra s/o Jagdish Mishra armed with katta (country-made pistol) and Awadh Kishor Mishra s/o Jagdish Mishra having ballam came there. Jagdish Mishra, who sought voluntary retirement from the police department was a retired constable. Breakfast was being served by Krishna Kumar informant, in the meantime due to enmity Jagdish Mishra s/o Bhola Mishra armed with his licensed gun, Sugriv Kumar Mishra s/o Jagdish Mishra armed with katta (country-made pistol) and Awadh Kishor Mishra s/o Jagdish Mishra having ballam came there. Jagdish Mishra, who sought voluntary retirement from the police department was a retired constable. His two sons, namely, Sugriv Kumar Mishra and Awadh Kishor Mishra posted in police department, as constables. Jagdish Mishra said to deceased Surya Bali Mishra that he was Gram Pradhan and are litigating with me. His relatives were also present on that date, hence, if he liked, he could, settle the dispute, he was ready for that. Surya Bali Mishra stated that there was no use in fighting out as the civil suit was pending, and he would abide by the decision of the Court. Accused Awadh Kishor Mishra exhorted and attacked with ballam on his father Surya Bali Mishra and Jagdish Mishra and Sugriv Kumar Mishra shot fire from their country-made pistol at his father Surya Bali Mishra. After receiving fire-arm injury his father fell down on the ground. His relative was sitting at his door and other family members raised voice and tried to defend using lathi and bricks. His cousin Ram Pratap Mishra came from his house, Jagdish Mishra shot fire at him with intention to kill by his gun, which hit Ram Pratap Mishra. He ran towards his house. Body of his father Surya Bali Mishra was lifted by the accused-appellants and the same was put at the ‘ghoora’ (garbage), which was disputed land and thereafter, they ran away from the spot. The F.I.R. was lodged and registered at Police Station Bhatpar Rani on the same date i.e. 30.5.1983 at 6:45 a.m., chik F.I.R. was proved and exhibited as exhibit Ka.10, written report was exhibited as exhibit Ka.1. F.I.R. was registered at Case Crime No. 30 of 1983, under Sections 302, 307 I.P.C., G.D. entry was also made on 30.5.1983 vide report No. 9 at 6:45 a.m. which was exhibited as exhibit Ka.11. 9. F.I.R. was registered at Case Crime No. 30 of 1983, under Sections 302, 307 I.P.C., G.D. entry was also made on 30.5.1983 vide report No. 9 at 6:45 a.m. which was exhibited as exhibit Ka.11. 9. After the F.I.R. was registered, S.I. Gorakh Nath, Investigating Officer, proceeded for inspection of the spot, he recorded the statement of informant Krishna Kumar Mishra at Police Station and he left the Police Station by Jeep accompanied by the informant and other police personnel and reached at the place of the occurrence at 07:30 a.m. He found the dead body of Surya Bali Mishra near ghoora (garbage). When he went to the house of Ram Pratap Mishra, he noticed that the dead body of Ram Pratap Mishra was lying on a cot in the Court-yard. Both bodies were taken into custody. The inquest report was prepared of the dead bodies of Surya Bali Mishra and Ram Pratap Mishra. The necessary papers were prepared after completing the inquiries, the dead bodies were sent to the mortuary for post-mortem examination through constable Sarath Nath Singh, Roop Narain and village chowkidar Lekhraj and Hirdai Narain. The dead bodies were taken by cart upto Mahua Bari and from there they were taken to the Deoria by Jeep. 10. The Investigating Officer, PW6 Gorakh Nath inspected the place of incident, prepared the site plan on pointing out of the informant, which was exhibited as exhibit Ka.26. A sum of Rs. 10/- was found on the fold of Dhoti of deceased Surya Bali Mishra and one plastic shoe was found near the dead body. He took blood stained and simple soil from the place of occurrence and took them separately in containers, which were duly sealed and a memo was prepared, which was exhibited as exhibit Ka.27. Both containers were exhibited as material exhibits I and II respectively. The blood stained and simple earth were scrapped from the house of deceased Ram Pratap Mishra and were sealed and recovery memo was prepared as exhibit Ka.28 and simple earth as material exhibit III and container of blood stained as material exhibit IV. The Investigating Officer inspected the varandah, wherein Surya Bali Mishra was murdered and noted the marks of pellets on walls, but no pellets were found embedded and none lying on the floor. The Investigating Officer inspected the varandah, wherein Surya Bali Mishra was murdered and noted the marks of pellets on walls, but no pellets were found embedded and none lying on the floor. However, he found big blood stains on the floor and he scrapped and took blood stained portion and simple plaster and was put in containers, recovery memo was prepared. 11. The Investigating Officer also recovered 8 empty cartridges of 12 bore and 11 tiklies. Recovery memo was prepared and exhibited as exhibit Ka.30. The empty cartridges and tiklies was exhibited as material exhibit IX and X. He also interrogated witnesses and recorded statements of Bipin Bihari Mishra, Satya Prakash Mishra, Shashi Maul Nath Tripathi, Jitendra Kumar Dubey, Awadh Narain Mishra, these five persons were injured. The Constable Ram Awadh Mishra was directed to take them P.H.C. for medical examination and medical aid. Investigating Officer prepared site plan, where incident took place. When he came to know that the assailants were present at Mahua Bari or in its neighbourhood then he left Mahua Bari with police persons, they reached at that place. The assailants were taken into custody, who were father and sons respectively. From the possession of Jagdish Mishra 12 bore S.B.B.L. Gun with cartridges were recovered. He also found in possession two empty cartridges, one misfired cartridge, one live cartridge and a gun licence. From the possession of accused-appellant Sugriv Kumar Mishra, a country-made pistol was recovered with two live cartridges and from the possession of accused-appellant Awadh Kishor Mishra, ballam was recovered, whose tip was resembling like a sooja, which was mentioned as “soojanuma ballam”. The recovery memo was prepared, which was exhibited as exhibit Ka.32. A combined recovery memo was prepared. A Case Crime No. 351 of 1983 was registered under Section 25 Arms Act. The recovered material were sent to the Police Station Bhatpar Rani, thereafter, Investigating Officer returned there on the next date i.e. 31.5.1983 and recorded the statements of the witnesses. On 10.6.1983, he recorded the statement of Awadh Narain Mishra, who was admitted in Hospital as indoor patient and also recorded the statement of Dr. Hajendra Singh, Physician, who had performed autopsy. After completing investigation and the necessary formalities, he submitted charge-sheet dated 23.6.1983, which was exhibited as exhibit Ka.34. 12. The injured were examined by Dr. On 10.6.1983, he recorded the statement of Awadh Narain Mishra, who was admitted in Hospital as indoor patient and also recorded the statement of Dr. Hajendra Singh, Physician, who had performed autopsy. After completing investigation and the necessary formalities, he submitted charge-sheet dated 23.6.1983, which was exhibited as exhibit Ka.34. 12. The injured were examined by Dr. S.N. Pathak on 30.5.1983 at P.H.C. Bhatpar Rani namely Bipin Bihari Mishra, Jitendra Kumar Dubey, Shashi Maul Nath Tripathi, Hitendra Kumar Mishra and Awadh Narain Mishra, their injury reports were exhibited as exhibit Ka.3 to Ka.7 respectively. 13. As per injury report of Bipin Bihari Mishra, there was one injury - abrasion 1/2cm X 1/3cm on the outer part of left thigh , 6cms above the left knee, simple in nature, fresh in duration, caused by friction. Jitendra Kumar Dubey received one fire-arm wound 1/3 cm x 1/3 cm x 1/4 cm on the right side base of the neck, 1-1/2 cms above the left collar bone. Blackening present. Fresh blood oozing out from the wound, presence of pellet felt underneath the wound which was of entry and X-Ray was advised for confirmation of position of the pellet and the injury was kept under observation. It was simple in nature, fresh in duration, caused by fire-arm. 14. Shashi Maul Nath Tripathi have received as many as 13 lacerated wound injuries in an area of 9cms x 8cms on the medial side of the left leg, 21cms below the left knee. Size of each lacerated wound was 1/4cm x 1/4cm x 1cm. Blackening was present and blood was oozing out of the wound and X-Ray was advised. Injuries were simple in nature, caused by fire-arm and was fresh in duration. 15. Hitendra Kumar Mishra have received the following injuries; 1. One fire-arm wound 1/4cm x 1/4cm x 1/3cm on the right side of forehead, 1/2cm above right eye-brow. Blackening present. Fresh blood oozing out from the wound. Pellet felt below skin wound or entry; 2. One fire-arm wound 1/3cm x 1/3cm x 1/2cm on the right Collar bone, 1cm above and medical to the right shoulder. Blackening present. Fresh blood oozing out from the wound. Presence of pellet felt under neath the skin. Wound of entry. 3. One fire-arm wound 1/4cm x 1/4cm x 1/3cm on the right shoulder, 4cms above the shoulder joint. Blackening present. Fresh blood oozing out from the wound. Blackening present. Fresh blood oozing out from the wound. Presence of pellet felt under neath the skin. Wound of entry. 3. One fire-arm wound 1/4cm x 1/4cm x 1/3cm on the right shoulder, 4cms above the shoulder joint. Blackening present. Fresh blood oozing out from the wound. Wound of entry. Advised X-Ray of right side forehead and right shoulder. Nature of injuries noted simple, caused by fire-arm, fresh in duration. 16. Awadh Narain Mishra received three injuries; 1. 64 fire-arm wounds on the medial side of the right hip thigh in an area of 37cms x 23cms, 4cms above the right knee. Size of each lacerated wound was 1/4cm x 1/4cm x 1/2cm. Blackening around the wound was present. Fresh blood from the wound present. Massive swelling around the wound. Pellets felt inside the wound. 2. 9 fire-arm wounds on the medial side of the left thigh in an area of 21cms x 16cms on the medical side of the left thigh, 8cms above the left knee, and size of each wound was 1/4cm x 1/4cm x 1/3cm. Blackening present around the wound and fresh blood oozing out from the wound. Massive awelling around the wound. Pallets felt underneath the skin. Wound or entry. Advised X-Ray of right and left thighs, right hip and serotum for confirmation of injuiry Nos. 1 and 2 regarding positions of pellets and kept under observation and referred to District Hospital, Deoria for better treatment. Nature of injuries were simple, caused by fire-arm, duration fresh. 3. Fire-arm wound on the serotum size of each is 1/4cm x 1/4cm x 1/3cm. Blackening around the wound present. Pellets felt underneath the skin. 17. Dr. Rajendra Singh, M.O., District Hospital, Deoria had conducted post-mortem examination on the dead body of Surya Bali Mishra on 31.5.1983 at about 1:20 p.m. and he was found aged about 70 years, time of death was noted about one and half day, abdomen-punctured, eyes closed, mouth closed, peeling of skin on trunk and thighs and upper arms. Following ante-mortem injuries were noted; 1. Fire-arm wound two in number over right shoulder 2cms apart, size 0.5cm x 0.5cm x 0.5cm x bone deep. No blackening present. 2. Fire-arm wounds three in number 0.5cm x 0.5cm in an area of 5cms x 4cms on front chest right side, below right clavical bone. The wound is chest cavity deep. No blackening seen. 3. Fire-arm wound two in number over right shoulder 2cms apart, size 0.5cm x 0.5cm x 0.5cm x bone deep. No blackening present. 2. Fire-arm wounds three in number 0.5cm x 0.5cm in an area of 5cms x 4cms on front chest right side, below right clavical bone. The wound is chest cavity deep. No blackening seen. 3. Lacerated wound 3.5cms x 1.5cm x chest cavity deep on right nipple region. Blackening of wound margins 0.75cm are present. 4. Fire-arm wound circular on left side abdomen in left hypochondriac region two in number, size 0.5cm x 0.5cm x skin deep, 4.5cms apart. No blackening seen. 5. Fire-arm wound on right thigh front part 0.5cm x 0.5cm x skin deep, 7.5cms below ligament. 6. Fire-arm wound on right thigh 0.5cm x 0.5cm x muscle deep, 20cms below crest bone. 7. Lacerated wound 3½ x 2½cm x abdomen cavity deep left lower abdomen, loop of bowel had come out of wound gap. 8. Fire-arm wound 1/2cm x 1/2cm x skin deep on back of right hand. 9. Fire-arm wound 1/2cm x 1/2cm x skin deep on back of left hand. 10. Fire-arm wound on back of right thigh 1/2cm x 1/2cm, 10 cms above right knee. 18. On internal examination, second and third right ribs found fractured, pleura congested and lacerated on right side, right lung lacerated and congested and about 300 mls of blood present in chest cavity (clotted blood). The chambers of heart were empty. Free and clotted blood present in cavity 275cc. Heart was punctured and congested. Gall bladder full N.A.D, kidneys N.A.D., bladder empty, gases and faecal matters present in intestines. Death was due to hemorrhage. Injuries were caused by fire-arm gun/katta, and also caused by blunt object like lathi. There was no exit wound of fire-arm injury. Two pellets and tiklies were recovered. 19. On the same day autopsy was performed at about 2:00 p.m. on the dead body of Ram Pratap Mishra and was found aged about 55 years, time of death was noted about one and half days, average built body, rigormortis present in lower limbs only, mouth half openend, eyes closed, trunk punctured, abdomen distended, peeling of skin over trunk and shoulders. Following ante-mortem injuries were noted as below : 1. Fire-arm wounds two in number size 0.5 x 0.5cm x skin deep on the fore head left side. No blackening or charring present. Following ante-mortem injuries were noted as below : 1. Fire-arm wounds two in number size 0.5 x 0.5cm x skin deep on the fore head left side. No blackening or charring present. Wound are just above the left eye brow. 2. Fire-arm wounds four in number over lateral aspect of left shoulder 0.5 x 0.5cm x muscle deep. No blackening or charring present. 3. Fire-arm wounds two in number, size 0.5cm x 0.5cm x muscle deep on the left side neck on the left carotid artery and left jugular veins are lacerated. The wounds are 1cm apart. No blackening and charring present. 4. Fire-arm wound over left cheek 0.5 x 0.5cm x buccal cavity deep. No blackening and charring present. 5. Fire-arm wound on the anterior medial aspect of left shoulder, two in number 0.5 x 0.5cm x muscle deep. No blackening present. 20. On the internal examination, heart was found empty, gall bladder full. The death was due to shock and haemorrhage. 21. The recovered firs arms were sent to the ballistic expert at Lucknow, alongwith empties and misfired cartridges. As per report out of eight cartridges, five were fired from the S.B.B.L. Gun, and remaining empty cartridges were fired from Katta. The report was signed by Mr. Ram Ashrey Pandey, Senior Ballistic Expert on 26.5.84. With regard to the recovered articles as per the chemical examiner and serologist reports, Agra dated 3.4.1984, the blood stains were found on articles; Dhoti, Safi, Baniaen, Janeu, pellets and tiklies, relating to deceased Surya Bali Mishra, plaster of cement pieces, Bandi, Under-wear, Janeu and blood stained earth were found blood stains of human blood. The earth removed from the place whereon the dead body of Surya Bali Mishra was found lying were found disintegrated and blood group ‘O’ was noted. Regarding the piece of cement plasters no report could be given. The report was submitted by the Chemical Examiner and Serologist, U.P. Government, Agra prepared and signed on 2.4.1984 by Mr. S.S. Tripathi, Assistant Director. After completing the formalities charges were submitted against the accused, charge was framed under Sections 302 read with Section 34 and 307 read with Section 34 I.P.C. and Section 25 Arms Act. 22. The prosecution to prove its case examined as many as 9 witnesses. S.S. Tripathi, Assistant Director. After completing the formalities charges were submitted against the accused, charge was framed under Sections 302 read with Section 34 and 307 read with Section 34 I.P.C. and Section 25 Arms Act. 22. The prosecution to prove its case examined as many as 9 witnesses. Krishna Kumar Mishra (informant) s/o deceased Surya Bali Mishra as PW1, Awadh Narain Mishra (injured witness) nephew of deceased Surya Bali Mishra and cousin of Ram Pratap as PW2 and Shashi Mauli Tripathi son-in-law of Ram Adhar Mishra as PW3, Dr. S.N. Pathak, who had examined all injured, was examined as PW4, Dr. Rajendra Singh, Medical Officer, who medically examined deceased Surya Bali Mishra on 31.5.1983, was examined as PW5. Investigating Officer, Gorakh Nath was examined as PW6. Constable Ramroop was examined as PW7. Constable Chandrama Yadav and Ram Ashrey Pandeya were examined as PW8 and PW9. 23. After the prosecution evidence was closed, statements of the accused were recorded under Section 313 Cr.P.C. The defence witnesses were also produced on behalf of accused-appellants, Constable Hirdaishankar Rai as DW1, Ramashanker Mishra as DW2, Balram Pandey steno was examined as DW3. 24. After hearing the parties trial Court held the appellants guilty. They were convicted and sentenced by the impugned judgement hence, being aggrieved against the impugned judgement of conviction and sentence dated 15.4.1986, the above noted appeals were filed assailing the judgement. 25. Learned counsel for the appellants challenged the impugned judgement on the ground that the place of incident is disputed, prosecution story is false and the other side was aggressor. The dispute took place at the land in dispute, where the dead body of deceased Surya Bali Mishra was found. According to prosecution case Jagdish Mishra and Sugriv Kumar Mishra shot fire with gun and country-made pistol (katta) at deceased Surya Bali Mishra, who fell down on the spot. Subsequently his body was picked up and put at ghoor (garbage) of the informant. Further there was no injury caused by ballam, which was used and alleged to have been recovered from accused-appellant Awadh Kishore Mishra s/o Jagdish Mishra, it was suja like pointed ballam. According to the statement of Dr. Rajendra Singh, PW5, who conducted the post-mortem report, injury No. 7 was not caused by ballam, which was alleged to have been recovered. Further there was no injury caused by ballam, which was used and alleged to have been recovered from accused-appellant Awadh Kishore Mishra s/o Jagdish Mishra, it was suja like pointed ballam. According to the statement of Dr. Rajendra Singh, PW5, who conducted the post-mortem report, injury No. 7 was not caused by ballam, which was alleged to have been recovered. He submitted that injury No. 7 caused on person of deceased Surya Bali Mishra was lacerated wound 3½cms x 2½cms x abdomen cavity and deep could not be caused by ballam. Presence of PW1 Krishna Kumar Mishra s/o Surya Bali Mishra is also doubtful because according to prosecution case he was present there for making arrangement for breakfast and the same was brought from inside to serve to the relatives, who were sitting there but it is unbelievable that he did not receive any injury even he did not sustained a single scratch. Hence, he is not reliable witness. The trial Court found that PW1 did not witness the incident. He might had been inside the house when the actual assault took place and that was the reason why he did not receive any injury. Had he been present there he might have not been spared by the assailants though according to him he remain standing at a short distance from his deceased father Surya Bali Mishra. Had the informant been visible to the assailants he might have been shot dead, without fail who was the son of the deceased Surya Bali Mishra. 26. Learned counsel for the appellants further submitted that the trial Court rightly disbelieved informant/PW1. Due to enmity and property dispute and village party bandi, appellants were falsely implicated in the present case. The prosecution failed to prove the case beyond doubt and the conviction and sentence by the trial Court is based on no evidence and the same is liable to be set aside. Learned counsel for the appellants further contended that no articles were recovered from the alleged incident. The recovered articles were not sent to the Ballistic Expert. It appears that the F.I.R. was anti-time because there was over writing in the G.D. Entry. 27. Mr. Sudhir Dixit, learned counsel for the complainant and learned A.G.A. vehemently opposed the prayer. 28. Learned counsel for the appellants further contended that no articles were recovered from the alleged incident. The recovered articles were not sent to the Ballistic Expert. It appears that the F.I.R. was anti-time because there was over writing in the G.D. Entry. 27. Mr. Sudhir Dixit, learned counsel for the complainant and learned A.G.A. vehemently opposed the prayer. 28. Learned counsel for the complainant submitted that all the accused-appellants were posted and working as constables in the police department, hence, whatever short comings, were in the investigation and G.D. Entry, those were under pressure and at the connivance of the accused-appellants. Appellant Jagdish Mishra was a retired constable and other were working as constables. The deceased Ram Pratap Mishra and Surya Bali Mishra were not having any weapon. Ram Pratap Mishra was bearing only underwear and banyan. Both relatives were sitting alongwith deceased. After they shot dead Surya Bali Mishra, his body was picked up and put on the ghoor situated on the land in dispute. All the accused-appellant were arrested on the same day with their respective weapons and appellant Jagdish Mishra was arrested with gun. He also contended by disputing the actual place of incident, even the marriage and returning of the barat are not disputed. There are injured witnesses in which out of two witnesses PW2 and PW3 have supported the F.I.R. version and prosecution case. The distance of the police station was about 6 km from the place of incident. PW1 Krishna Kumar Mishra s/o deceased Surya Bali Mishra went there to lodge the F.I.R. by bicycle. Incident took place at 6:00 a.m. and F.I.R. was lodged at 6:45 a.m. subsequently, he returned by Jeep with Investigating Officer and bicycle was also loaded in the Jeep. PW3 Shashi Maul Tripathi also went to the Police Station. The injured PW3 was medically examined at 7:20 a.m. on 30.5.1983 who was brought by constable, injured Bipin Bihari at 09:15 a.m., Jitendra Kumar was examined at 9:30 a.m., Hitendra Kumar Mishra was examined at 08:45 a.m. on the same date i.e. 30.5.1983. Though PW1 was also present there at the place of incident when assailants attacked, he was standing in between two pillars he did not receive injury but the presence of injured is not doubtful. Presence of injured PW2 and PW3 are not doubtful. Though PW1 was also present there at the place of incident when assailants attacked, he was standing in between two pillars he did not receive injury but the presence of injured is not doubtful. Presence of injured PW2 and PW3 are not doubtful. They have also supported the prosecution version and there is no material contradiction in their statement. The injuries caused to the side of the accused and explained because in defence they started throwing bricks of ‘chulah’ made for cooking meal and the place of chulah was found there at the place of incident. Injured Awadh Narain Mishra PW2 also tried to defend by using lathi, however subsequently he received fire-arm injury and as such he could not defend with lathi. In view of the fact the prosecution had proved the case beyond reasonable doubt and as such the trial Court has rightly convicted and sentenced the accused-appellants, though trial Court committed error in making observation regarding presence of PW1 informant. 29. Learned A.G.A. submitted that the prosecution has proved the case beyond reasonable doubt. There was attacked from side of the accused-appellants and in defence, injured and others tried to defend by lathi and bricks due to which they received injuries. The appellants were aggressor. He further submitted that apart from that there was no complaint from the side of the accused-appellants. 30. Considered the submission of learned counsel for the parties and perused the record. According to learned counsel for the appellants presence of the informant is doubtful. He has not seen the occurrence and the prosecution story is not reliable but in the present case informant Krishna Kumar Mishra PW1 s/o deceased Surya Bali Mishra and cousin of Ram Pratap Mishra has clearly explained in his statement, at page No. 55 of the paper book, how he saved him when appellants attacked. He was standing in between the pillars. In defence they started throwing bricks and PW2 also tried to assault with lathi in defence, hence they could not further enter into the house and could not assault the appellant No. 1. Apart from that PW1 has supported the prosecution case. He was standing in between the pillars. In defence they started throwing bricks and PW2 also tried to assault with lathi in defence, hence they could not further enter into the house and could not assault the appellant No. 1. Apart from that PW1 has supported the prosecution case. There is prompt F.I.R. The incident took place at 6:00 a.m. on 30.5.1983 and he went to lodge the F.I.R. at Police Station Bhatpar Rani, District Deoria, which was lodged and registered at 6:45 a.m. If there was any cutting in G.D. Report it cannot be presumed that F.I.R. was anti-time. Apart from that there are two injured witnesses and at least their presence is not doubtful. They were medically examined on the same day alongwith other injured, who were brought by constable to the hospital. After accused-appellants shot fire Surya Bali Mishra, he fell down and he was picked up, carried and thrown at ghoor (garbage), which was claiming to be land in dispute. Merely on that reason place of incident cannot be doubted though pellets cannot be recovered at the place of occurrence from varandah of Surya Bali Mishra, Pradhan. 8 empty cartridges of 12 bore were recovered and 11 tiklies were recovered from the place of incident. Deceased Ram Pratap Mishra after receiving fire-arm injury ran towards house subsequently fell down and expired. There was one injury caused on abdomen of Surya Bali Mishra by Ballam and when question was put to the Dr. Rajendra Singh, who conducted post-mortem examination and his reply is at page 88 of the paper book : xokg us bl cYye dks ns[kdj dgk fd bl izdkj ds cYye ls lw;Zcyh dh pksV ua0 7 dk blls vkuk laHko gSA pksV ua0 3 Qk;j vkeZ dh Fkh ftlds vUnj ls ,d NjsZ eSaus fudkys FksA e`rd lw;Zcyh dh pksVsa ysVh ;k cSBh gqbZ gkyr esa vk ldrh gSA^^ 31. Doctor stated that injury No. 7 could have been caused by that weapon (Ballam) would differ on the force used at the time of assault and the Doctor is not an eye-witness. The statement of the eye-witnesses are not liable to be disbelieved 32. The medical report and statement of Doctor corroborated the statements of the prosecution witnesses. Doctor stated that injury No. 7 could have been caused by that weapon (Ballam) would differ on the force used at the time of assault and the Doctor is not an eye-witness. The statement of the eye-witnesses are not liable to be disbelieved 32. The medical report and statement of Doctor corroborated the statements of the prosecution witnesses. There is no material contradiction to disbelieve the statements of witnesses rather the statements of PW1, 2 and 3 are intact, barring, negligible minor discrepancies, which are natural. The injuries caused to the side of the appellants have been explained by the prosecution and to show that the informant’s side was aggressor, there is no cross report or any complaint from side of the accused-appellants. 33. There was motive to commit offence and there is no reason to disbelieve the witnesses, specially the injured witness. The appellants’ side were in service in the police department, hence, there was some manipulation on the part of the police, hence merely on that basis the witnesses have not to be disbelieved and their statements are trustworthy. There is no material discrepancies and contradictions pointed out on which basis statement of witnesses could be disbelieved. According to Doctor after receiving the injuries noted on the body of Ram Pratap Mishra, he could have run up to 50-100 steps. The injuries were not such that he should have fallen down on the spot. 34. Hence, in view of the facts and circumstances of the case, it is not a fit case for interference in the impugned judgement of conviction and sentence dated 15.4.1986 passed by IInd Additional Sessions Judge, Deoria. The impugned judgement is hereby confirmed. 35. Accordingly, both the above noted appeals are hereby dismissed. ——————