JUDGMENT Hon’ble Shashi Kant Gupta, J.—The aforesaid criminal appeals have been preferred by the accused appellants against the judgment and order dated 26.4.2010 passed by the Additional Sessions Judge, Fast Track Court No. 1, Firozabad in Sessions Trial No. 29 of 2000 arising out of Crime No. 225 of 1996, Police Station Jasrana, District Firozabad convicting the appellants of charges under Sections 302, 147 and 148 IPC and sentencing them to imprisonment for life and a fine of Rs. 5,000/-, in case of default of payment of fine to further undergo one year’s S.I., six months R.I. And fine of Rs. 500/-, in default of the payment of fine to further undergo 2 months S.I., one year R.I and fine of Rs. 1000/-, in default of the payment of fine to further undergo 3 months S.I respectively under the aforementioned charges. All the sentences have been directed to run concurrently. 2. The facts of the case as unfolded by the complainant Nathu Ram P.W. 1 are that his brother Harvilas son of Kalicharan Yadav resident of Khamini alongwith Jagdish son of Raghuwar Dayal Yadav resident of Nagla Aam, was proceeding to village Khamini from Padam on his Motor cycle and the informant who was also on the way to the village was behind them riding his cycle. As soon as the deceased Harvilash reached the “Jwar” field of Bal Karan at 6 p.m. the accused persons namely Kamlesh Kumar and Vimlesh Kumar alias Bhura sons of Durveen Singh and Dalveer Singh son of Maniram, Nekse and his son Pradeep and the elder son of Betal suddenly emerged from the “Jwar” field and started firing with their country-made pistols upon the deceased Harvilash, as a result of which, his brother Har Vilash fell down bleeding profusely and died on the spot and Jagdish Kumar, the pillion rider ran off shouting from there. Hearing the sound of firing, Sarvesh Kumar son of Satish Chandra, Ashok Kumar son of Ram Autar Singh and other villagers ran shouting towards the place of occurrence, upon which the culprits ran away from there firing in the air towards the village Syaypur and out of fear they did not chase the culprits. Hearing the sound of firing, Sarvesh Kumar son of Satish Chandra, Ashok Kumar son of Ram Autar Singh and other villagers ran shouting towards the place of occurrence, upon which the culprits ran away from there firing in the air towards the village Syaypur and out of fear they did not chase the culprits. In the year 1984, Harvilash (deceased) had lodged an FIR with regard to the killings of Betal son of Fauran Singh, Raj Bahadur son of Nekse and Munna son of Jaiveer Singh in public encounter, due to which, family members and relatives of the victims became inimical and wanted to kill the deceased, (who had lodged the FIR). 3. According to the FIR, the incident had occurred at 6 p.m. and the FIR was lodged on 26.9.1996 at about 6.45 p.m. under Sections 147, 148, 149 and 302 IPC in Case Crime No. 225 of 1996, Police Station Jasrana, District Firozabad against the accused Kamlesh Kumar, Vimlesh Kumar @ Bhura, Dalveer, Nekse, Pradeep and the son of Betal (Bhola) and the investigation of the said case was initially conducted by the Police Station Jasrana and thereafter the investigation was transferred to the C.B.C.I.D, who submitted the charge-sheet against all the accused persons except Dalveer. However, Dalveer was later on summoned under Section 319 Cr.P.C and was made an accused and charges were also framed against him alongwith the other accused persons. They pleaded not guilty to the same and claimed to be tried. 4. The prosecution examined P.W. 1-Nathu Ram, the eye-witness/first informant/cousin brother of the deceased, P.W. 2-Jagdish Kumar, the eye-witness/brother in law (Chachera Sala) of the deceased, P.W. 3-Sarvesh, the scribe of the FIR/eye-witness, P.W. 4-Dr. S.L. Ghuley, who conducted the Post-mortem of the deceased, P.W. 5-G.L. Kuril, who prepared Inquest Report, P.W. 6-Amar Singh, S.I., who proved chik, FIR and G.D., P.W. 7-N.M. Bhatt, Investigating Officer, who proved the recovery memo and site plan and P.W. 8-Bhaskar Singh proved the charge-sheet as secondary evidence. The investigation which was initially conducted by the local police station was subsequently transferred to C.B.C.I.D. The defence did not produce any oral evidence. The statement under Section 313 Cr.P.C of the accused persons were recorded, where they pleaded innocence and stated that due to enmity they have been falsely implicated in the present case. 5. P.W.1-Nathu Ram, the informant, is the cousin of the deceased Harvilash. The statement under Section 313 Cr.P.C of the accused persons were recorded, where they pleaded innocence and stated that due to enmity they have been falsely implicated in the present case. 5. P.W.1-Nathu Ram, the informant, is the cousin of the deceased Harvilash. While supporting the version of the FIR, he has made important improvements during trial. According to him, at the time of incident P.W. 3-Sarvesh and Ashok Kumar too had reached the spot and tried to chase the accused who escaped away. He for the first time, during cross-examination stated that at the time of incident Jagdish, who was the pillion rider had stepped down from the motor cycle around 8-9 steps before the place of occurrence since the road in front of the field of Bal Karan was muddy (Daldal/keechad) and the deceased remained on the motor cycle struggling to pull the motor cycle out from the muddy ground and at that very moment, the deceased was attacked by the accused persons, who were waiting in ambush in the “Jwar” field of Bal Karan, with their respective weapons from a close range. After the registration of the FIR, the police personnel reached the place of occurrence and conducted the inquest and the same was proved by the P.W. 5-S.I. G.L. Kuril. Thereafter, P.W. 5-G.L. Kuril, S.I carried the dead-body to the police station and the informant Nathu Ram was asked to sign at the Police Station. Later on, the dead-body was sent to the District Hospital for post-mortem. He showed his ignorance as to how long the dead-body of the deceased remained at the police station. According to P.W. 1-Nathu Ram, the scribe of the FIR P.W. 3-Sarvesh, the nephew of the deceased Harvilash, was although the permanent resident of the village Nagla Bal, (which was around 36 Kms from the village Khamini where the incident had occurred) but was staying alongwith him at village Khamini since the time when he was about eight years. He further stated that he had not seen any empty cartridges lying near the dead-body of the deceased. He has also admitted that he had neither stated in the FIR nor in his statement recorded under Section 161 Cr.P.C that Jagdish, the pillion rider, got down from the motor cycle driven by the deceased Harvilash before the place of occurrence immediately prior to the incident since the road was muddy/marshy. He has also admitted that he had neither stated in the FIR nor in his statement recorded under Section 161 Cr.P.C that Jagdish, the pillion rider, got down from the motor cycle driven by the deceased Harvilash before the place of occurrence immediately prior to the incident since the road was muddy/marshy. He further stated that the deceased Harvilash had suffered around six gun shot injuries and stated that the Will with respect to the property of Phoolpyari, the sister of the accused Nekse was executed in his favour by the deceased Ram Prakash (husband of Phoolpyari) and a civil case regarding this was pending between him and Phoolpyari in the Court of Jasrana. He has further denied of having any enmity with the appellant Dalveer. 6. P.W. 2-Jagdish Kumar son of Raghvar Dayal, the pillion rider of the motor cycle driven by the deceased, was a permanent resident of village Nagla Aam situated around 50-60 Kms away from the place of occurrence. He is the brother in law (Chachera Saala) of the deceased Harvilash. While supporting the FIR P.W. 2-Jagdish Kumar also stated that as the road where the incident had occurred was too muddy, he got down from the motor cycle a few paces before the place of occurrence and thereafter Harvilash, who was driving the motor cycle was attacked by the assailants. On hearing the sound of firing, Sarvesh and Ashok came from the village side and tried to chase the assailants alongwith the other villagers however the accused persons escaped and ran towards the village Syaypur. According to him village Khamini was around 2/3 Km away from the place of occurrence. He has further stated that neither Sarvesh nor his father were having any business, shop or property in the village Khamini. According to him all the accused fired upon the deceased simultaneously and shots were fired by them again while escaping from the scene. He has further stated that the country-made pistols were single barrel, however has showed ignorance as to whether they had kept the empty cartridges in their pockets or had left it at the place of occurrence. He further stated that he had not seen any empty cartridges, tickly or live cartridges near the place of occurrence. He has further stated that the country-made pistols were single barrel, however has showed ignorance as to whether they had kept the empty cartridges in their pockets or had left it at the place of occurrence. He further stated that he had not seen any empty cartridges, tickly or live cartridges near the place of occurrence. Panchayatnama of the dead-body of the deceased was conducted in his presence but he was not aware of the name of the witnesses of the Panchayatnama since he was sitting alone. He further stated that the clothes and motor cycle of the deceased Harvilash got smeared with mud. 7. P.W. 3-Sarvesh Kumar son of Satish Chandra is the nephew of the deceased Harvilash. According to him, he is a permanent resident of Nagla Bal, which is 36 Kms from the place of occurrence but since 1981 he was living at village Khamini alongwith the deceased. While supporting the version of the FIR he has stated that at the time of incident at 6 p.m. he was proceeding on foot towards Padham from the village Khamini and witnessed the incident. He further stated that he had accompanied Nathu to the Police Station for lodging the FIR and had written the FIR on the dictation of P.W. 1 Nathu at the Tea-stall near the police station but did not enter the police station for lodging the FIR. He further stated that on the next date i.e. 27.9.1996, the motor cycle was given in his “Supurdagi” in the Police Station by the Investigating Officer (Ex Ka 2). He however admitted that he is a permanent resident of Nagla Bal, Gram Panchayat Araon Khurd and in the year 2005 his wife had contested the Election for the Office of Gaon Pradhan of his native village Nagla Bal Gram Panchayat Araon Khurd. However she lost. He has further stated that he got married in the year 1985 at his native village Nagla Bal. He further stated that except P.W. 1 Nathu no one had accompanied him to the police station for lodging the FIR. He further stated that the assailants were standing at a level ½ feet lower than the deceased and he (PW 3) was standing about 10 steps behind the deceased and around 10-15 gun shots were fired by the assailants. He further stated that except P.W. 1 Nathu no one had accompanied him to the police station for lodging the FIR. He further stated that the assailants were standing at a level ½ feet lower than the deceased and he (PW 3) was standing about 10 steps behind the deceased and around 10-15 gun shots were fired by the assailants. He has admitted in his testimony that no motor cycle was produced by him before the trial Court. He has further stated that Dinesh, Onkar and Roshanlal, who are the relatives of the deceased living at far flung places also reached the police station at the time when the FIR was being lodged and after the lodging of the FIR, they went away in their Jeep, whereas he alongwith PW 1 returned to the place of occurrence in the Police Jeep. 8. P.W. 4-Dr. Shankar Lal Dhuley, who conducted the post-mortem of the dead-body of the deceased proved the post-mortem report and stated that the pant, shirt, baniyan, underwear and belt, which were worn by the deceased neither bore gun shot holes nor were soiled with mud. He further stated that no pellets, bullet, tickly etc. were found in the body of the deceased. According to him, the shots were fired from a very cloase range. The cause of death as per post-mortem report is shock and haemorrhage due to gun shot wounds. The description of ante-mortem injuries in the post-mortem report is as follows : (i) There is a gun shot wound of entry on right side post axillary line, 13 cm. below right axilia. Margins are inverted and blackening and tattoing present. Wound is rounded and is ½ cm. X ½ cm. (ii) Wound of exit 2 cm. X 2 cm., margins are everted. Right side front of chest 10 cms. below right clavicle heart and right lung ruptured. (iii) Gun shot wound on right parietal region with fracture of right parietal bone. The wound is ½ cm. x ½ cm. with blackening and tattooing. Margins are inverted. The wound is wound of entry. (iv) Gun shot wound of exit, related to injury No. 3 on the left side of face near the angle of mandible, margins of wound everted, length and width of the wound was 4 cm. x 3 cm. (v) Two gun shot wound of entry on both side of vertebral column 1 cm. The wound is wound of entry. (iv) Gun shot wound of exit, related to injury No. 3 on the left side of face near the angle of mandible, margins of wound everted, length and width of the wound was 4 cm. x 3 cm. (v) Two gun shot wound of entry on both side of vertebral column 1 cm. x 1 cm. with blackening and tattooing. Marginas are inverted. (vi) Wound of exit on right clavicle 3 cm. x 2 cm. Margins everted. Muscle ruptured near right clavicle with right clavicle fractured. 9. P.W. 5-S.I. G.L. Kuril, proved the inquest report, challan nash, photo nash and the letter sent to the CMS for post-mortem etc. He stated that in the Ex Ka 5 i.e. Challan nash, post-mortem No. 523 dated 27.9.1996 was mentioned and the dead-body was sent at 9 p.m. on 26.9.1996 to the District Hospital. He further stated that in the Panchayatnama nothing was mentioned about the presence of mud, motor cycle, live cartridges or empty cartridges at the place of occurrence. He further stated that the name of the scribe of the FIR was not mentioned in the G.D. He has further stated that at around 8.30 p.m., the senior police officers visited the police station and after instructions to the Inspector N.M. Bhatt, they proceeded to the place of occurrence. 10. P.W. 7-N.M. Bhatt, Investigating Officer, proved the site plan i.e. Ex Ka 11, recovery memo of blood stained soil and plain earth i.e. Ex. Ka 12 and recovery memo of empty cartridge i.e. Ex. Ka 13 and also affirmed the “Supurdagi” of motor cycle to P.W. 3-Sarvesh. According to him, “Supurdagi” of motor cycle was given at the place of occurrence. 11. The Trial Court after perusing the entire evidence available on record and the submissions advanced by the learned counsel for the respective parties convicted and sentenced the accused appellants under Sections 302, 147, 148 to various terms of imprisonment and fine. Being aggrieved and dissatisfied with the impugned judgment and order, the present appeals have been filed by the accused appellants. 12. Learned counsel for the accused appellants has submitted that the FIR is ante timed. He further submitted that all the witnesses are highly interested and close relatives. Being aggrieved and dissatisfied with the impugned judgment and order, the present appeals have been filed by the accused appellants. 12. Learned counsel for the accused appellants has submitted that the FIR is ante timed. He further submitted that all the witnesses are highly interested and close relatives. He further submitted that the charge-sheet was submitted against the accused persons Kamlesh Kumar, Vimlesh Kumar alias Bhura, Nekse, Pradeep and Bhola by CBCID but the accused namely Dalveer was exonerated by it due to lack of cogent evidence, however, he was summoned under Section 319 Cr.P.C. The case of the accused Dalveer stands on different footing as he was not having any enmity with the deceased but due to regional political enmity he was also falsely implicated in the present case. He further submitted that ocular version does not co-relate with the medical evidence and the dimension of the injuries also do not co-relate with the alleged recovered cartridges of 12 Bore. He further submitted that the description of ante-mortem injuries in the post-mortem report shows that the deceased had received only 3-4 entry wounds and three exit wounds. He further submitted that the Doctor who conducted the post-mortem has not found any bullet, pellet or any foreign body from the body of the deceased. He further submitted that the size of exit wounds are larger than the entry wounds, which is not possible if a shot is fired from a country made pistol and this fact negates the prosecution case that the 6 accused were armed with country-made pistols. He further submitted that there are several important improvements in the statement of the witnesses embellishing their credibility. He further submitted that empty cartridges were not found from the place of occurrence but later on two empty cartridges were planted at the scene. All the witnesses are chance witness. He further submitted that it is highly improbable that P.W.2-Jagdish, who was accompanying the deceased did not sustain any fire-arm injury. He further submitted that there is an interpolation in the police papers, which is evident from the fact that in Form No. 13, the number of post-mortem report 523 was also mentioned by the R.I much before the dead-body was sent for the post-mortem. He further submitted that there is an interpolation in the police papers, which is evident from the fact that in Form No. 13, the number of post-mortem report 523 was also mentioned by the R.I much before the dead-body was sent for the post-mortem. He further submitted that the story of motor cycle being allegedly driven by the deceased at the time of incident is a concocted story because the motor cycle was neither produced in the Court nor did any witness stated anything about its colour or make. He further submitted that the motive behind the occurrence seems very weak as it relates to an incident dated 20.10.1984 of alleged public encounter which took place, therefore it is most improbable that a person would take revenge after such a long gap. 13. Per contra, learned counsel for the complainant as well as the learned AGA appearing on behalf of the State have supported the case of the prosecution. Learned counsel for the respondents has stated that the defence has not asked any question or sought explanation from the witnesses regarding the ante timing of the FIR. He further submitted that the accused appellant Dalveer was exonerated by the I.O and he was summoned under Section 319 Cr.P.C with regard to contradictions in the oral evidence, he submitted that after a long time some contradictions are bound to occur in the statements of the witnesses because memory fades with time. 14. Heard Mr. Dilip Kumar, Mr. Brijesh Sahai, learned counsel for the appellants, Sri V.P. Srivastava, learned Senior Advocate, assisted by Mr. Upendra Upadhyay, and Sri O.P. Singh, learned Senior Advocate, assisted by Mr. H.N. Singh, Mr. Upendra Upadhyay, learned counsel for the informant, and Mr. Narendra Kumar Singh, learned AGA for the State. 15. Perusal of the record reveals that the alleged incident took place on 26.9.1996 at about 6 p.m. and the FIR was lodged on the very same day i.e. 26.9.1996 at about 6.45 p.m.. The distance between the Police Station and the place of incident was about 7-1/2 Kms. The inquest was conducted on 26.9.1996 between 8 and 9 p.m. and the dead-body of the deceased was sent for post-mortem at about 9 p.m. which reached the Hospital on the next day at 9 a.m. in the morning. The post-mortem was conducted on 27.9.1996 at about 11.20 a.m.. The inquest was conducted on 26.9.1996 between 8 and 9 p.m. and the dead-body of the deceased was sent for post-mortem at about 9 p.m. which reached the Hospital on the next day at 9 a.m. in the morning. The post-mortem was conducted on 27.9.1996 at about 11.20 a.m.. The appellant namely Dalveer earlier exonerated during the course of investigation was later on summoned under Section 319 Cr.P.C. The following witnesses were examined by the prosecution; P.W. 1- Nathu Ram (Eye-witness/first informant/Cousin Brother of the deceased). P.W. 2- Jagdish (Eye-witness/Chachera Sala of the deceased). P.W. 3- Sarvesh (Eye-witness/scribe of the FIR) P.W. 4- Dr. Shankar Lal Ghuley, who proved Post-mortem report. P.W. 5- S.I. G.L. Kuril, who proved inquest report. P.W. 6- S.I. Amar Singh, who proved Chik FIR and G.D. P.W. 7- Inspector N.M. Bhatt (Investigating Officer Local Police), who proved Site Plan and recovery memo). P.W. 8- Constable Bhasker Singh, who proved charge-sheet as secondary evidence. 16. At the very outset learned counsel for the appellants has submitted that all the witnesses are highly interested witnesses due to their close relation with the deceased. Alleged eye-witness Ashok, who died was also the relative of the deceased. Jagdish-P.W. 2, who was accompanying the deceased is the brother in law (Chachera Sala) of the deceased. Sarvesh P.W. 3- is the nephew and Nathu Ram-P.W. 1 is the cousin of the deceased. 17. Merely because the alleged eye-witnesses are close relative of the deceased, their testimony cannot be discarded out rightly on this count. This view has been expressed in several cases by the Apex Court. In Dharnidhar v. State of Uttar Pradesh, (2010) 7 SCC 759 , it has been held as follows : “12. There is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case. In Jayabalan v. UT of Pondicherry, (2010) 1 SCC 199 , this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim. The Court held as under: (SCC p. 213, paras 23-24). 23. We are of the considered view that in cases where the Court is called upon to deal with the evidence of the interested witnesses, the approach of the Court, while appreciating the evidence of such witnesses must not be pedantic. The Court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the Court must not be suspicious of such evidence. The primary endeavour of the Court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim. 13. Similar view was taken by this Court in Ram Bharosey v. State of U.P., AIR 1954 SC 704 , where the Court stated the dictum of law that a close relative of the deceased does not, per se, become an interested witness. An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to disputes and deposes before the Court only with that intention and not to further the cause of justice. The law relating to appreciation of evidence of an interested witness is well-settled, according to which, the version of an interested witness cannot be thrown overboard, but has to be examined carefully before accepting the same.” Apex Court in the case of Thoti Manohar v. State of A.P., 2012 (7) SCC 723 , has stated as follows: “39. No evidence can ever be perfect for man is not perfect and man lives in an imperfect world. Thus, the duty of the Court is to see with the vision of prudence and acceptability of the deposition regard being had to the substratum of the prosecution story. In this context, we may reproduce a passage from the decision of this Court in State of Punjab v. Jagir Singh, wherein H.R. Khanna, J., speaking for the Court, observed thus: “23. A criminal trial is not like a fairy tale wherein one is free to give flight to one’s imagination and phantasy. In this context, we may reproduce a passage from the decision of this Court in State of Punjab v. Jagir Singh, wherein H.R. Khanna, J., speaking for the Court, observed thus: “23. A criminal trial is not like a fairy tale wherein one is free to give flight to one’s imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the Court has to judge the evidence by a yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the Courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.” Now it is settled legal position that merely because the witnesses were closely related to the deceased, their testimonies cannot be discarded. Their relationship to one of the parties is not a factor that affects the credibility of a witness, more so, a relation would not conceal the actual culprit and make allegations against an innocent person. To appreciate the statement of relative witnesses, only requirement of law is that testimony of such witnesses will be scrutinized carefully and cautiously. 18. This Court has to examine the testimony of all the eye-witnesses with great care and caution and examine whether the evidence of the alleged eye-witnesses is worthy of credence and can form the basis of conviction. Keeping the aforesaid principle in mind we now proceed to examine whether the evidence available on record is worthy of credence in the light of the submission of the learned counsel for the parties. 19. Before us the main contention of the learned counsel for the appellants is that it was a blind murder during the dark night and nobody had seen the alleged incident. The eye-witnesses were set up by the prosecution to falsely implicate the appellants due to previous animosity. 20. 19. Before us the main contention of the learned counsel for the appellants is that it was a blind murder during the dark night and nobody had seen the alleged incident. The eye-witnesses were set up by the prosecution to falsely implicate the appellants due to previous animosity. 20. Admittedly, the distance of village Khamini (where the P.W. 1 and deceased Harvilash were residing) was nearly 2/3 KM from the place of occurrence and in the FIR it has not been stated that P.W. 3 Sarvesh was allegedly present from before on the spot at the time of the incident i.e. when the deceased was attacked by the assailants. According to the FIR and the statement of P.W. 2-Jagdish, after hearing the gun shots, P.W. 3 Sarvesh alongwith Ashok Kumar and other villagers came running to the place of occurrence from the village side, upon which the culprits ran away towards village Syaypur. The aforesaid facts clearly indicates that P.W. 3-Sarvesh and Ashok (since deceased) were not present from before at the spot but allegedly came running from the village after hearing the gun shots which was about 2/3 KM from the place of occurrence. According to P.W. 2-Jagdish Kumar, the entire incident of firing lasted for about 2-3 minutes. In fact it was allegedly a case of hit and run where a sole victim Harvilash was attacked by several assailants with fire arms and such incidents where fire arms are used, do not last more than a fraction of minutes, particularly when there is a sole victim and no resistance is offered by the alleged eye-witnesses. Therefore, under such circumstances, it is very difficult to believe that either the P.W. 3 Sarvesh or Ashok were present from before on the spot or on hearing the sound of firing they both alongwith other villagers came running from the village (which is admittedly 2/3 KM from the place of occurrence) and were capable of giving graphic description of the incident. 21. It may be further noted that a serious dispute has been raised with regard to the place of residence where P.w. 3-Sarvesh actually resides. Admittedly, he is a permanent resident of village Nagla Bal, which is about 36 Kms away from the place of occurrence. According to the prosecution, for the last several years P.W.3-Sarvesh was residing with the deceased who was his uncle (Mausa). Admittedly, he is a permanent resident of village Nagla Bal, which is about 36 Kms away from the place of occurrence. According to the prosecution, for the last several years P.W.3-Sarvesh was residing with the deceased who was his uncle (Mausa). It is noticeable that the prosecution witness has admitted that P.W. 3 Sarvesh was not having any house, property, shop or business in the village Khamini. His name appears in the voter list of his native Village Nagla Bal and not of village Khamini. The record further shows that P.W. 3 Sarvesh was the permanent resident of Nagla Bal, Gram Panchayat Araon Khurd and in the year 2005 his wife had contested the Election of Gaon Pradhan from his native village Nagla Bal Gram Panchayat Aram Khurd, which she had lost. P.W. 3-Sarvesh has himself admitted that he got married in the year 1985 at his native village Nagla Bal. 22. It is noteworthy that P.w. 1 Nathuram in his testimony before the Court made vital and important improvements and twisted his earlier version by stating that apart from him and P.W.2-Jagdish, P.W. 3-Sarvesh and Ashok were also present at the place of occurrence while omitting the material fact (which finds mention in the FIR that after hearing the sound of firing Sarvesh Kumar son of Satish Chandra, Ashok Kumar son of Ram Autar Singh and other villagers came running towards the place of occurrence shouting, upon which the culprits ran away towards the village Syaypur firing shots and could not be chased due to fear. Such material improvements create a serious dent in the testimony of the alleged eye-witness P.W. 1. 23. The aforesaid facts create a serious doubt about the presence of the P.W.3-Sarvesh at the place of incident when the deceased was killed as well as the actual place of living of the P.W. 3 at the time of alleged incident and it appears that the P.W. 3 Sarvesh has been set up as a eye-witness of the incident to fill up the lacunas in the prosecution story. 24. Learned counsel for the appellants also challenged the presence of P.W. 1-Nathu Ram and P.W. 2-Jagdish at the place of occurrence. According to FIR, P.W. 2-Jagdish (Chachera Sala), who was the pillion rider on the motor cycle was accompanying the deceased Harvilash, who was driving the motor cycle when the alleged incident of firing took place. 24. Learned counsel for the appellants also challenged the presence of P.W. 1-Nathu Ram and P.W. 2-Jagdish at the place of occurrence. According to FIR, P.W. 2-Jagdish (Chachera Sala), who was the pillion rider on the motor cycle was accompanying the deceased Harvilash, who was driving the motor cycle when the alleged incident of firing took place. There is no whisper in the FIR that P.W. 2 Jagdish stepped down from the motor cycle a few paces before the place of incident as the road in front of the field of “Jwar” of Bal Karan (where the assailants were hiding) was muddy. Admittedly, this fact was also not mentioned by the P.W. 1-Nathu Ram in his statement recorded under Section 161 Cr.P.C but for the first time in his testimony before the Court he came out with a new version that since the road was muddy, P.W. 2-Jagdish Kumar got down from the motor cycle a few paces before the spot and immediately thereafter the assailants came out from the field of “Jwar” and shot down the deceased with their respective country made pistols. This material contradiction and vital and important improvements upon his earlier FIR version creates grave suspicion about the credibility of the prosecution story and this contradiction goes to the root of the matter. 25. It is also noteworthy that the alleged eye-witnesses who are the close relatives of the deceased particularly P.W. 1 Nathu Ram were having direct enmity with all the assailants except Dalveer, and therefore the assailants would not have spared the eye-witnesses allegedly present at the place of occurrence. In this context, it is noticeable that even the Trial Court in his impugned judgment was not convinced about the presence of P.W. 2-Jagdish. For ready reference the relevant portion of the impugned judgment is quoted hereunder: ^^ih MCyw 2 dk ;g dguk fd lM+d tgk¡ ij ?kVuk crkrs gSa mDr jLrs esa nyny Fkk] ogka lM+d ds dqN fgLls esa nyny ugha gS] ;fn rdZ ds fy, ;g rF; eku fy;k tk;s fd nyny ugha Fkk ,oa eksVj lkbfdy dks pykrs gq, gh e`rd ogka ls ys x;k] rks vf/kdre ;g rF; gks ldrk gS fd txnh'k ?kVuk LFky ij u mifLFkr gqvk gks] ijUrq ek= txnh'k dh ?kVuk LFky ij vuqifLFkfr ls gh lkjk vfHk;kstu lk{; lekIr ugha gks tkrhA** 26. According to the FIR version P.W. 2-Jagdish, who was a close relative of the deceased was riding the motor cycle on the pillion seat with the deceased at the time of incident and definitely he would not have been spared by the assailants and the story set up at the trial Court that he stepped down from the motor cycle immediately before the incident is an improvement which does not find support from the FIR, statements of the witnesses recorded under Section 161 Cr.PC, the spot inspection made by the Investigating Officer and the other material available on record. 27. It may also be observed that if it is believed that Jagdish had alighted from the motor cycle about 8-9 paces before the place of incident as the road was muddy then in such a situation it is expected that he would have tried to help the motor cycle rider by pushing the vehicle from the back as according to prosecution the deceased Har Vilash, who was driving the motor cycle was struggling and using his legs to drag out the motor cycle from the muddy ground and in such situation Jagdish would not have been standing idle watching the rider struggling to drag out his motor cycle from the muddy road. It may also be noted that Jagdish P.W. 2 is a resident of Nagla Aam, which is around 55 Kms from the place of occurrence and there is nothing on record to show that he has any business, property or shop at the village Khamini. The aforesaid circumstances shows that P.W. 2-Jagdish Kumar was purely a chance witness and his presence on the spot too appears to be doubtful. 28. According to the learned counsel for the appellants Mr. Brijesh Sahai, the presence of one chance witness can be accidental and the presence of two chance witness can be coincidence but the presence of three chance witness at the time of incident is nothing but a conspiracy. In the given circumstances, the submission of the learned counsel for the appellant cannot be overlooked. 29. According to P.W. 1-Nathuram, he too was coming from the village Padham at the time of incident. According to him all the six assailants fired at the deceased from a close range and there was no possibility that any of the shots would have missed the target. 29. According to P.W. 1-Nathuram, he too was coming from the village Padham at the time of incident. According to him all the six assailants fired at the deceased from a close range and there was no possibility that any of the shots would have missed the target. It means there must have been six entry wounds but the post-mortem report shows only 3-4 entry wounds. Therefore, the exaggeration in number of assailants cannot be easily ruled out. 30. It is also noteworthy that there is a material contradiction regarding the number of fires made by the assailants. According to the P.W. 3-Sarvesh about 10-15 shots were fired and as per the post-mortem report blackening and tattooing was found, thus the said firing was made from a close range. Therefore, there was no possibility of missing the target by the assailants. There is a material contradiction with regard to the presence of empty cartridges on the spot, some where in the testimony of the witnesses it has been stated that no cartridges were found at the spot and somewhere it has been stated that two cartridges were recovered. Even if the prosecution story is believed that two cartridges were found at the spot then there is no explanation as to where the other empty cartridges disappeared as according to the prosecution witness, assailants were carrying single barrel pistols and it cannot be believed that after firing the assailants they would have kept the empty cartridges in their pockets. Therefore, there is material contradiction with regard to the number of fires shot by the assailants. 31. Learned counsel for the appellants further submitted that the nature of the injuries clearly shows that the firing was not made by the country made pistols. He further submitted that the exit wound is larger than there corresponding entry wound and in all probabilities a Rifle must have been used by the assailants instead of country made pistols. I find substance in the argument of the learned counsel for the appellants. No plausible explanation has been offered by the prosecution in this regard. The contradictions with regard to the number of the alleged shots fired upon the deceased and the dimensions of the exit wounds has created further dent in the prosecution case and the use of country made pistols in the commission of the offence becomes doubtful. No plausible explanation has been offered by the prosecution in this regard. The contradictions with regard to the number of the alleged shots fired upon the deceased and the dimensions of the exit wounds has created further dent in the prosecution case and the use of country made pistols in the commission of the offence becomes doubtful. P.W. 3 in his testimony stated that the assailants were standing ½ feet below the level of the deceased. It means track of shot must be downward to upward direction but the testimony of the P.W. 3 in this regard has been contradicted by the P.W. 4 Doctor who conducted the post-mortem has opined that the injury No. 3 (entry) and injury No. 4 (exit) suggested that the accused persons were standing on a much higher level at least a feet above than the deceased. Thus the nature of injuries including its dimension are in conflict with the ocular testimony rendering the presence of eye-witnesses at the spot doubtful. 32. We now turn to yet another important aspect which requires consideration. In the FIR, it has not been stated that the road was muddy. However, subsequently for the first time in the trial it has been disclosed that the place where the incident had occurred was muddy. During the trial it has been deposed by the eye-witnesses that the deceased after suffering gun shot injuries fell down alongwith the motor cycle on the muddy ground due to which the clothes and motor cycle of the deceased got smeared/soiled with mud but on the contrary, P.W.4-Doctor has clearly stated that neither the clothes which the deceased was wearing bore any gun shot hole nor were smeared with mud. Therefore, the story of the presence of mud at the spot appears to be concocted, maneuvered and afterthought to show that the alleged witness P.W. 2 Jagdish had stepped down from the motor cycle before the incident due to muddy road in order to explain as to why he did not receive any injuries. No explanation has been offered as to why the alleged clothes which were worn by the deceased had no gun shot holes and were not soiled with mud and soaked with blood. The aforesaid facts further weakens the case of the prosecution and creates a serious infirmity in the prosecution version. 33. No explanation has been offered as to why the alleged clothes which were worn by the deceased had no gun shot holes and were not soiled with mud and soaked with blood. The aforesaid facts further weakens the case of the prosecution and creates a serious infirmity in the prosecution version. 33. It may also be noted that according to the prosecution story, P.W. 3-Sarvesh was the scribe of the FIR and had accompanied the P.W. 1-Nathuram to the police station but interestingly he stayed outside the police station at a Tea stall and did not accompany Nathu Ram inside the police station and therefore his name did not find place in the G.D. This conduct of P.W. 3 creates doubt about the the timing of the FIR and the presence of P.W. 3-Sarvesh on the spot at the time of the alleged incident. If it is very difficult to believe that P.W. 3, the scribe who alone was accompanying the first informant would not go inside the police station alongwith P.W. 1 to lodge a FIR. This fact shows that P.W. 3-Sarvesh Kumar had not accompanied P.W. 1 Nathu Ram to the police Station. 34. Learned counsel for the appellants has vehemently argued that the FIR is ante timed and has been lodged after consultation and deliberation. It may also be noted that the incident had occurred at 6 p.m. and the FIR was lodged at 6.45 p.m. within 45 minutes of the incident even though the police station was quite far away i.e. 7-1/2 Kms from the place of occurrence and no specific mode of conveyance has been disclosed by the witnesses by which they went to the police station. In this regard it may be noticed that in the earlier part of the judgment serious doubt has been cast on the credibility of the prosecution story regarding the place of residence of the P.W. 3-Sarvesh at the time of the alleged incident. It may also be noted that within a short time the close relatives of the deceased namely Omkar Singh, Dinesh Singh and Roshan Lal, who were living at far flung places arrived at the police station. It is very difficult to believe that how the relatives living at different places far away from the place of occurrence could reach the police station so quickly particularly when there were no mobile phone at the relevant time. It is very difficult to believe that how the relatives living at different places far away from the place of occurrence could reach the police station so quickly particularly when there were no mobile phone at the relevant time. It appears that the P.W. 3 scribe of the FIR whose place of residence was under a cloud of doubt was not present on the spot but arrived much after the incident and did not accompany the P.W. 1-Informant to the police station. Arrival of the other relatives at the police station also shows that the FIR could not have been lodged promptly within 45 minutes of the incident particularly when the police station was about 7-1/2 KM away from the place of incident. 35. It may also be noted that according to the prosecution, at around 7.15 p.m., the Investigating Officer N.M. Bhatt had left the police station but according to P.W. 5 at around 8.30 p.m., the senior police officers had visited the police station and after giving instructions to the Inspector N.M. Bhatt proceeded to the place of occurrence. The Investigating Officer N.M. Bhatt could not have been present at two places at one time. 36. No explanation was given by the prosecution as to why the dead-body of the deceased reached the Hospital on the next day after 9 a.m. morning when it was sent to the Hospital on the previous night i.e. 26.9.1996 at 9 p.m.., meaning thereby the dead-body was sent in the morning not in the night to the Hospital, which also creates suspicion about the timing of lodging of FIR and it appears that the FIR was ante timed and was lodged after much consultation and confabulation. 37. It is also noteworthy that no specific enmity has been shown by the prosecution between the appellant Dalveer and the deceased and no family member of Dalveer’s family was killed in 1984 in public encounter in which the deceased was the informant. All the persons killed in that public encounter were the relative of Nekse i.e. Betal, Raj Bahadur and Munna. Dalveer lived in Jasrana which was more than 10 KM from the place of occurrence. In the aforesaid circumstances the submission of the learned counsel for the appellant Dalveer that he has been falsely implicated due to regional political enmity carries weight. Dalveer lived in Jasrana which was more than 10 KM from the place of occurrence. In the aforesaid circumstances the submission of the learned counsel for the appellant Dalveer that he has been falsely implicated due to regional political enmity carries weight. It has also come on record that P.W. 1 was engaged in civil litigation with Phoolpyari wife of Ram Prakash, wherein P.W. 1 had set up a “Will” allegedly executed by Ram Prakash in his favour, as such, P.W. 1 owing to dispute over the property was having grudge against the remaining appellants particularly Nekse, who was the brother of Phoolpyari. 38. According to the prosecution side, there was a long time gap i.e. 8 or 9 years in recording the testimonies of the witnesses, therefore, some contradictions are bound to occur in the statement of the witnesses as the memory fades with the passage of time and no explanation was sought by the defence in the cross-examination on certain points. 39. The overall facts and circumstances of the case are such that we cannot give much weight to the aforesaid submission of the prosecution counsel. The case set up by the prosecution does not inspire any confidence or faith to place reliance on it and leads to a conclusion that the prosecution has not come up with clean hands. Vital and important improvements at every stage has been made to give an air of credibility to the otherwise weak prosecution case. Neither alleged motor cycle driven by the deceased was produced before the Court nor blood stained soil was sent to the Chemical examiner nor any weapon was recovered. There is vital omission in the site plan, contradiction with regard to presence of the cartridges on the spot and inconsistency between the ocular version and the medical evidence creates a great suspicion about the prosecution story. Lodging of prompt FIR within 45 minutes of the incident even though the police station was 7-1/2 Kms away from the place of occurrence raises suspicion. All the eye-witnesses are chance/interested witnesses, who had animus against the accused persons and their presence on the spot has been found doubtful. There is a material contradictions, omission and improvement in the oral testimony of the eye-witnesses. All the eye-witnesses are chance/interested witnesses, who had animus against the accused persons and their presence on the spot has been found doubtful. There is a material contradictions, omission and improvement in the oral testimony of the eye-witnesses. There appears clear interpolation in police papers i.e. the number of post-mortem report 523 was mentioned in advance in Form 13, lash challan by R.I much before the dead-body was sent for the post-mortem. No explanation in this regard was provided by the prosecution which further creates grave suspicion upon the trust-worthiness of the prosecution story. The constable who carried the dead-body was not produced, therefore no explanation could be sought with regard to delay in taking the dead-body to the police station. There is no explanation as to why the P.W.1-Nathuram was asked to put his signature on the papers at the police station. In the Panchayatnama nothing was mentioned about the presence of mud, motor cycle, live cartridges or empty cartridges at the place of occurrence. The prosecution version is not free from doubts and the allegations seems to be on a weakest wicket. 40. Considering the facts and circumstances of the case, we are of the considered opinion that the view taken by the Court below while convicting the appellants is palpably wrong and the findings recorded by the Court below are perverse, erroneous and cannot stand the scrutiny of law. In our considered opinion the reasons given by the Trial Court are not sufficient to convict the appellants. 41. In the facts and circumstances of the case and the evidence led by the parties, the origin and genesis of the occurrence appears doubtful and as such the appellants are entitled to benefit of doubt and acquittal. 42. On the basis of aforesaid discussion in our considered opinion and also applying the rule of caution, conviction of the appellants cannot be sustained and is liable to be set-aside and in the circumstances of the case, the appellants deserve acquittal. 43. The appeals having merit are liable to be allowed. 44. Consequently, the Criminal Appeal Nos. 2860 of 2010, 3037 of 2010, 3039 of 2010 and 2924 of 2010 are allowed. 45. 43. The appeals having merit are liable to be allowed. 44. Consequently, the Criminal Appeal Nos. 2860 of 2010, 3037 of 2010, 3039 of 2010 and 2924 of 2010 are allowed. 45. The impugned judgment and order dated 26.4.2010 passed by the Additional Sessions Judge, Fast Track Court No. 1, Firozabad in Sessions Trial No. 29 of 2000 arising out of Crime No. 225 of 1996, Police Station Jasrana, District Firozabad is set-aside and the appellants namely Dalveer, Bhola, Nekse Lal, Kamlesh Kumar, Pradeep and Vimlesh alias Bhura are acquitted of the charges levelled against them and their conviction and sentence are hereby quashed and set-aside. The appellants namely Dalveer, Bhola, Nekse Lal, Kamlesh Kumar, Pradeep and Vimlesh alias Bhura, who are in jail, shall be released forthwith if not required in any other case. 46. Let a copy of this judgment alongwith the trial Court record be sent to the Court concerned for compliance. 47. Let a copy of this judgment be also placed in the connected Criminal Appeal Nos. 3037 of 2010, 3039 of 2010 and 2924 of 2010.