JUDGMENT : SATYA NARAIN AGNIHOTRI, J. 1. The instant appeal has been filed against the common judgment and order dated 18.9.2003 passed by the Additional Sessions Judge, Fast Track Court No. 4, Budaun in Sessions Trial No. 177 of 2002 arising out of Case Crime No. 53 of 2001, under Section 302 read with Section 34 I.P.C. and Sessions Trial No. 178 of 2002 arising out of Case Crime No. 74 of 2001, under Section 25 Arms Act, Police Station Musajhag, District Badaun, where by Learned Trial Court held both appellants guilty under Section 302 read with Section 34 I.P.C. and sentenced them to life imprisonment and fine of Rs. 5000/- in default of which they had to under go further imprisonment of six months. Appellant Munna was further sentenced to imprisonment of two years under Section 25 Arms Act. 2. During the pendency of appeal appellant Anokhe Lal died. His appeal stands abated as per order dated 12.09.2013. 3. The factual matrix of the case is that on 23.5.2001, the complainant Smt. Sonwati was heading towards her Village- Murhsaina Khurdh, P.S. Musajhag, District-Badaun along with her husband's elder brother Mahipal, son Rajesh and younger son in her lap after performing a religious ceremony (Kheer Chatai) in Village Paparh. When the complainant, her son and elder brother of her husband (Jeth) Mahi Pal reached near the Vijay Maintha Plant situated in between Murhsaina Khurd and Bujhia Village at about 9:30 a.m., she saw late Anokhey Lal with gun, Munna with pistol/revolver and Dheer Pal alias Kallu with knife. The late Anokhey Lal exhorted his both sons to kill Mahipal. Thereafter Anokhey Lal fired with gun upon Mahipal. Mahipal tried to escape, then another accused Munna fired upon Mahipal from other side. Receiving gun shot injury deceased Mahipal fell on the ground. Juvenile Dheer Pal thereafter stabed deceased Mahipal with knife. Mahipal died on the spot due to injuries inflicted by the accused persons. Accused person ran away from the spot. Thereafter complainant lodged F.I.R. Exhibit Ka-1 after getting it scribed by Rajveer Singh. 4. After recording F.I.R., Station House Officer (S.H.O.) Kanhya Lal took up investigation and recorded the statements of complainant Smt. Sonwati, witnesses Sarva Shri Hakim Singh, Chotey Singh, Ajay Pal Singh, Lalman Singh, Surendra Singh, Dular Singh, Shamshad Hussain and Ved Ram. 5. I.O. visited place of occurrence and prepared inquest report Exhibit Ka- 4. 4. After recording F.I.R., Station House Officer (S.H.O.) Kanhya Lal took up investigation and recorded the statements of complainant Smt. Sonwati, witnesses Sarva Shri Hakim Singh, Chotey Singh, Ajay Pal Singh, Lalman Singh, Surendra Singh, Dular Singh, Shamshad Hussain and Ved Ram. 5. I.O. visited place of occurrence and prepared inquest report Exhibit Ka- 4. He also prepared photo nash Exhibit Ka-5, sample of seal Exhibit Ka- 6, challan Exhibit Ka-7, letter to R.I. Police Exhibit Ka-8 and letter to Chief Medical Officer Exhibit Ka-9. 6. Thereafter Investigating Officer (I.O.) inspected the place of occurrence and prepared site plan Exhibit Ka-3. I.O. collected sample of simple and blood soaked earth and prepared a memo. I.O. also recovered three empty cartridges from the place of occurrence and prepared memo of recovery which are Exhibit Ka-10 and Ka-11 respectively. 7. On 12.06.2001, one knife was recovered at the instance of Dheeraj @ Dheer Pal. Appellant Munna was arrested and on 16.6.2001 a country made pistol/revolver was recovered at the pointing of accused Munna with an empty cartridge of 315 bore and a live cartridge. Memo of recovery was prepared which is Exhibit Ka-12. After completion of the investigation, Kanhaiya Lal, S.H.O. submitted charge sheet Exhibit Ka- 15 in the Court. 8. Shri Surendra Singh, P.W 6, the I.O. of connected Crime No. 74 of 2001 Sessions Trial No. 178 of 2002, under Section 25 of Indian Arms Act, conducted investigation under Section 25 Arms Act. 9. To substantiate its case, prosecution, examined PW1 Smt. Sonwati complainant (eye witness), PW2 Shri Rajesh (eye witness), PW3 Dr. Amar Singh, PW4 Shri Kanhaiya Lal Investigating Officer of Crime No. 53 of 2001, under Section 302 read with Section 34 I.P.C., PW5 Shri Daya Ram Sagar Constable Clerk (writer of Check F.I.R. and G.D. of Crime No. 74 of 2001), under Section 25 Arms Act and PW6 Shri Surendra Singh I.O. of Crime No. 74 of 2001, under Section 25 of Arms Act. 10. Accused persons examined Defence Witness, DW1 Shri Ajab Lal, DW2 Shri V.C. Gupta and DW3 Shri Babu Ram. 11. Accused persons in their statement under Section 313 Cr.P.C. denied the allegations of prosecutions and claimed false implication due to enmity. 12. We have heard Sri Dharmendra Singh, learned counsel for the appellants and Saiyed Ali Murtaza, learned A.G.A. for the State. 13. 11. Accused persons in their statement under Section 313 Cr.P.C. denied the allegations of prosecutions and claimed false implication due to enmity. 12. We have heard Sri Dharmendra Singh, learned counsel for the appellants and Saiyed Ali Murtaza, learned A.G.A. for the State. 13. PW1 Smt. Sonwati is an eye witness and also complainant, who has stated on oath that on the day of incident she was coming along with her younger son, elder son Rajesh and elder brother of her husband Sri Mahipal from Village Paparh to her Village Mursaina Kurd back after performing religious ceremony, when they reached near Vijay Maintha Plant, late Anokhey Lal, appellant Munna and Juvenile Dhirendra attacked. Late Anokhey Lal exhorted others to kill them. Anokhey Lal fired with his double barrel gun upon Sri Mahipal which injured him. Mahipal tried to escape from the place of occurrence but in the meantime appellant Munna fired upon him. Mahipal got injured and fell down. Thereafter appellant Munna fired two more gun shots upon Mahipal, Dheerpal @ Kallu inflicted knife injuries, consequently, Sri Mahipal died on spot. 14. PW1 Sonwati further stated that accused persons escaped from the place of occurrence after committing murder of Sri Mahipal. Then she went to police Station Musajhag. She got report Exhibit Ka-1 scribed from one Shri Rajveer Singh. 15. The witness was cross-examined by accused-persons but nothing fruitful could be extracted in favour of appellants. There are few contradictions in her cross-examination which are of trivial nature and did not touch the root of the case. 16. PW2 Rajesh is a child witness of 10 years of age, who testified that on the day of murder of Sri Mahipal he was coming along with his mother and elder brother of his father Shri Mahipal, after performing ceremony of "Munh vor" in the village "Paparh" of his younger brother. When they reached near Maintha Plant in the village Sarayen Pipariya, late Anokhey Lal, appellant Munna and Dhirendra ambushed them. It is further stated by this witness that accused Anokhey Lal fired upon his uncle Mahipal, which hit him. Mahipal tried to escape, but appellant Munna also fired country-made pistol/revolver upon Mahipal, which hit Mahipal and he fell down. Thereafter Dhirpal @ Kallu stabbed Mahipal, consequently he died on the spot. This witness was also cross-examined by the accused-persons but nothing could be extracted in favour of accused-persons. 17. PW3 Dr. Mahipal tried to escape, but appellant Munna also fired country-made pistol/revolver upon Mahipal, which hit Mahipal and he fell down. Thereafter Dhirpal @ Kallu stabbed Mahipal, consequently he died on the spot. This witness was also cross-examined by the accused-persons but nothing could be extracted in favour of accused-persons. 17. PW3 Dr. Amar Singh conducted postmortem upon the dead body of Sri Mahipal on 23.05.2001 on the date of crime at about 04:45 p.m. at Badaun. Witness also stated on oath that there were rigor mortis present in all the four limbs of the dead body and following eight antimortem injuries were found upon the body of Sri Mahipal:- 1. Incised wound 2cm x 0.5cm x muscles deep on the left side front of chest, 10cm below left nipple at 6 O' clock position. 2. Incised wound 3cm x 2cm x bode deep on the left side of chest 7 cm below left nipple at 8 O' clock position. 3. Multiple incised wound in an area of 14cm x 10cm on the lateral aspect left side chest size from 7cm x 2cm to 2cm x 1cm muscles deep to cavity deep. 4. Incised wound 1cm x 1cm x muscles deep on the back of chest left side in scapula region. 5. Lacerated fire arm wound of entry 1cm x 1cm x cavity deep blackening on the left side chest 6cm above the left nipple at 11 O' clock position. 6. Lacerated fire arm wound of exit on the back of left side chest on scapula region of size 3cm x 2.5cm x cavity deep. This injury is communicating injury No. 5. 7. Lacerated fire arm wound of entry size 3cm x 3cm x cavity deep below the injury No. 6 on the left side back of chest. 8. Lacerated fire arm wound of entry 4cm x 3cm x cavity deep on the right side back of chest on the literal busselia of right scapular region. 18. The PW3 further stated on oath that there were, 47 pellets of material, two wading pieces and one long bullet, found from the body of deceased Mahipal. 19. Doctor PW3 further stated on oath that the death of deceased was probably occurred at about 09:30 a.m. on that very date i.e. 23.05.2001. The deceased died due to shock and antimortem injuries found upon his body. 19. Doctor PW3 further stated on oath that the death of deceased was probably occurred at about 09:30 a.m. on that very date i.e. 23.05.2001. The deceased died due to shock and antimortem injuries found upon his body. Witness further stated that injury No. 1 to 4 could be caused by pointed substance such as knife whereas injury Nos. 5 to 8 are caused by gun or pistol/revolver. PW3 also said that the age of the deceased was about 45 years. Witness formally proved the postmortem report Exhibit Ka-2. 20. PW4 Sri Kanhaiya Lal is a witness of formal nature as well as witness of facts in S.T. No. 178 of 2001, who deposed that on 23.05.2001 he was posted as Station Officer at Police Station Musajhag. The F.I.R. of this Case Crime No. 53 of 2001, under Section 302 I.P.C. was recorded in his presence and he took the investigation of the case on the very said date. He recorded the statement of complainant and other witnesses on 23.05.2001; inspected the place of occurrence; prepared site plan Exhibit Ka-3. Witness further stated on oath that he prepared inquest report of dead body of Sri Mahipal and also requisite paper for postmortem which are photo of dead body, challan of dead body, sample of seal, report to Reserve Police Inspector and Chief Medical Officer. These all papers are on record in which inquest report is Exhibit Ka-4, photo of dead body Exhibit Ka-5, sample of impression Exhibit Ka-6, challan of dead body Exhibit Ka-7, report to Reserve Police Inspector Exhibit Ka-8, report to Chief Medical Officer Exhibit Ka-9. 21. PW4 Kanhaiya Lal, I.O. further stated on oath that on 23.05.2001 he collected sample of blood soaked and simple earth from the place of occurrence. Witness also said that he recovered one empty cartridge from spot of crime and prepared the memo of recovery which are Exhibit Ka- 10 and Ka-11 respectively. Witness further stated that on 11.06.2001 he arrested accused Dhirpal @ Kallu, at instance of whom one knife was recovered on 12.06.2001. Witness further stated on oath that on 16.06.2001, one country-made pistol, one empty cartridge and one live cartridge were recovered at the pointing of accused Munna from the field/forest of Village Bujhiya, Police Station Musajhag. The memo of recovery was prepared which is Exhibit Ka-12. The memo of recovery of knife Exhibit Ka-13 is on record. Witness further stated on oath that on 16.06.2001, one country-made pistol, one empty cartridge and one live cartridge were recovered at the pointing of accused Munna from the field/forest of Village Bujhiya, Police Station Musajhag. The memo of recovery was prepared which is Exhibit Ka-12. The memo of recovery of knife Exhibit Ka-13 is on record. Witness also proved the site plan of recovery of country-made pistol, empty cartridge and live cartridge which is on record as Exhibit Ka-14. Witness also stated that after completion of investigation of crime under Section 302 I.P.C. he submitted charge sheet Exhibit Ka-15 in the Court. Witness was cross-examined at length but nothing could be extracted in favour of appellant. 22. PW5 Constable Sri Daya Ram Sagar stated on oath that on 23.05.2001, he recorded F.I.R. at the instance of PW1 Smt. Sonwati and the relevant entry was made in the general diary. The check F.I.R. is on record which is Exhibit Ka-16 and extract of G.D. is Exhibit Ka-17. 23. PW6 Sri Surendra Singh, I.O. of Crime No. 74 of 2001 stated on oath that on 16.06.2001 at about 08:30 a.m. Sri Kanhaiya Lal, Station Officer lodged an F.I.R. against accused Munna under Section 25 Arms Act. Sri Kanhaiya Lal, had recovered one country-made pistol, one empty cartridge and one live cartridge of 315 bore at the pointing of accused Munna from the field of Village Bujhiya. On completion of investigation and obtaining of sanction of District Magistrate, he submitted charge sheet Exhibit Ka-9. The sanction is Exhibit Ka-20. 24. The accused persons examined three witnesses in defence which are DW1 Sri Ajab Lal who stated on oath that he was Manager of Bareilly Gun House situated in Town and District Badaun and on 11.05.2001 late Anokhey Lal surrendered his double barrel gun No. A4981 for the repairing at about 10:00 a.m., the fact was entered in the register at serial No. 33 (licence No. 113). He further stated on oath that this register has been authenticated by the Additional District Magistrate on behalf of District Magistrate, Badaun. He has submitted photocopy of the relevant page of the register which is Exhibit Kha-1. This gun was in the possession of Bareilly Gun House from 11.05.2001 under the order of authorities dated 07.06.2001. In the cross-examination witness has stated that he was not familiar with Sri Anokhey Lal personally. 25. He has submitted photocopy of the relevant page of the register which is Exhibit Kha-1. This gun was in the possession of Bareilly Gun House from 11.05.2001 under the order of authorities dated 07.06.2001. In the cross-examination witness has stated that he was not familiar with Sri Anokhey Lal personally. 25. DW2 Sri V.C. Gupta is the Junior Engineer and incharge of Badaun Dataganj Marg. This witness stated on oath that he was supervising the activities of road repairs from 1998 and his team was repairing this road on date 23.05.2001. 26. This witness further stated on oath that on 23.05.2001 he had visited the site and late Anokhey Lal was present at site. Entries in the muster roll were made by Sri Hari Shankar. The entries were authenticated by witness himself and he put his signature with date and time at 09:35 a.m. on it. He remained present on site from 09:35 a.m. to 12 p.m. Anokhey Lal was present at the site. Witness submitted photocopy of muster roll with his signature which is Exhibit Kha-2. In cross-examination it was admitted by this witness that there is no signature of Mate and Veldar on Exhibit Kha-2 and only attendance was entered. He had visited place only on 23.05.2001 to check and authenticate the attendance of the workers on the site. It is also admitted by this witness, he was not regular visitor on the site. In the relevant month, he has visited the site only once. He failed to explain why he visited the site only on date 23.05.2001 and put his signature with date and time. 27. DW3 Sri Babu Ram was also the fellow worker of late Anokhey Lal. This witness stated on oath that his team comprising Anokhey Lal also, started work from 08:00 a.m. in the morning and did work till 05:00 p.m. on 23.05.2001. He himself and accused Anokhey Lal were continuously present at the site from 08:00 a.m. to 05:00 p.m. Witness further stated that on that very day Junior Engineer Sri V.C. Gupta visited site for inspection. 28. Learned counsel for the accused-appellants has submitted that the F.I.R. was lodged with considerable delay. 29. He himself and accused Anokhey Lal were continuously present at the site from 08:00 a.m. to 05:00 p.m. Witness further stated that on that very day Junior Engineer Sri V.C. Gupta visited site for inspection. 28. Learned counsel for the accused-appellants has submitted that the F.I.R. was lodged with considerable delay. 29. We are of the opinion that the argument advanced by the learned counsel for the accused appellants is not tenable, because the occurrence took place at about 09:30 a.m. whereas the F.I.R. was lodged at 10:30 a.m. The place of occurrence was 4 k.m. away from the Police Station. Perusal of evidence of PW1 Smt. Sonwati, PW2 Shri Rajesh and PW5 Shri Daya Ram Sagar, constable clerk, reveals that the F.I.R. was lodged promptly at 10:30 a.m. by PW1 Smt. Sonwati at Police Station Musajhag. There is nothing adverse in the statements of these three witnesses to suggest that F.I.R. was ante timed. PW1 Smt. Sonwati has stated that after the murder of Mahipal, she started for Police Station after few minutes and then she met one Rajveer at the gate of Police Station Musajhag, from whom, she got F.I.R. Exhibit Ka-1 scribed. PW2 Sri Rajesh also stated that after murder of his Tau (uncle) Sri Mahipal, his mother Smt. Sonwati went to Police Station. PW5 Sri Daya Ram Sagar, Constable Clerk stated on oath that he recorded F.I.R., Crime No. 53 of 2001, P.S. Musajhag at 10:30 a.m. PW1 Smt. Sonwati denied suggestion that the F.I.R. Exhibit Ka-1 was registered after the dead body was brought to Police Station Musajhag. From the statements of above noted 3 PWs, it is apparent that the F.I.R. was registered at 10:30 a.m. on the same day. There is no delay as submitted by learned counsel for the accused-appellants. 30. It is argued by learned counsel for the appellants that PW1 Smt. Somwati and PW2 Rajesh did not witness the murder of Mahipal and some other member of the family lodged the F.I.R. against appellants impersonating Sonwati. 31. We have perused the evidence of PW1 Smt. Sonwati and PW2 Shri Rajesh and find that both witnesses have supported prosecution version as well as the oral testimony of each other. These two witnesses were cross-examined by the accused-appellants, but nothing could be extracted in favour of them. 32. 31. We have perused the evidence of PW1 Smt. Sonwati and PW2 Shri Rajesh and find that both witnesses have supported prosecution version as well as the oral testimony of each other. These two witnesses were cross-examined by the accused-appellants, but nothing could be extracted in favour of them. 32. Learned counsel for the accused-appellants submitted that PW1 Smt. Sonwati is not a reliable and trustworthy, because she has tried to conceal many facts. We have perused the statement of Smt. Sonwati and find that the witness is a rustic and illiterate woman, but she has testified in satisfactory manner despite her background. She has conceded that she was not familiar with the family members of the appellants. She only knew assailants who killed deceased Shri Mahipal. She has admitted that she was not aware of fact that Km. Vineeta daughter of accused appellant Munna received gun shot injury. She denied any enmity with the deceased Mahipal and accused persons. 33. Hon'ble Apex Court in case of State of U.P. v. Chhote Lal, 2011 (73) ACC 429 (SC) expressed that it is not always possible for an illiterate and rustic woman to state with accuracy the chain of events. Expecting hyper technical calculation regarding facts is an insult to Justice oriented judicial system and detached from the realities of life. In the case of rustic woman, Court should keep in mind her rural back ground and the scenario in which the incident had happened. 34. Submission of learned counsel for the accused-appellants is that there was enmity between the deceased and accused-appellants that is why the appellants have been falsely implicated. We are not in agreement with the submission of learned counsel for the appellants. Enmity works like a double edged weapon. If accused-appellants may be named in crime due to enmity, then the accused-appellants might also have committed the murder of deceased Mahipal to seek vengeance. We are not in agreement with the submission of learned counsel for the appellants. Enmity works like a double edged weapon. If accused-appellants may be named in crime due to enmity, then the accused-appellants might also have committed the murder of deceased Mahipal to seek vengeance. From the statement of PW1 and PW2, it is proved beyond doubt that they both were coming along with deceased Sri Mahipal from Village "Paparh" after performing the ceremony of "Muhvor" of the youngest son of PW1 Smt. Sonwati and younger brother of PW2 Sri Rajesh, at the time 09:30 a.m. in the field of Village Sarai Pipariya near Maintha Plant of Sri Vijay, when accused-appellant Munna along with his two associates committed the murder of Mahipal in the sight of PWs 1 and 2 through fire arm and sharp-edged weapon. It is also proved beyond doubt that appellant Munna fired upon deceased Mahipal with country-made Pistol/revolver thrice. 35. It is further submitted by learned counsel for the appellants that the postmortem report Exhibit Ka-2 and inquest report Exhibit Ka-4 respectively are contrary to each other. In inquest report Exhibit Ka-4, the Investigating Officer mentioned 11 injuries including three fire arm injuries. Remaining injuries were caused by sharp-edge weapon, whereas the Doctor who conducted the autopsy mentioned only eight antimortem injuries upon the dead body of deceased Mahipal. Thus both documents are contrary to each other and are therefore not reliable. We do not agree with submissions of learned counsel for the appellants, because the investigator is not an expert medical witness. I.O. was not expected to behave like medical expert. Moreover, there were three entry wounds of fire arm and one exit wounds which caused spillage of blood from the body of deceased thereby giving impression of more injuries. However, PW3 Dr. Amar Singh is an expert medical witness who counted injuries of dead body at the time of autopsy. In Umashankar Chaurasia v. State of U.P. 2004 (50) ACC 152 All, the Division Bench of this Court has opined that when there is conflict between injury report and post mortem report, the postmortem report should be given primacy over the injury report. Thus the discrepancy occurred in the inquest report and postmortem report regarding the number of injuries is immaterial and does not adversely Affect prosecution case. 36. It is further submitted by learned counsel for the appellants that PW3 Dr. Thus the discrepancy occurred in the inquest report and postmortem report regarding the number of injuries is immaterial and does not adversely Affect prosecution case. 36. It is further submitted by learned counsel for the appellants that PW3 Dr. Amar Singh has testified that fire arm wounds were caused from a close range but the site plan shows that the fire arm wound was caused from a considerable distance at about three meters. Hence, there was no occasion to cause blackening on the body of deceased. 37. We are not inclined to accept the submission of learned counsel, because in the site plan Exhibit Ka-3 Investigator mentions that accused-persons fired upon the deceased from a distance of about three meters as per the information given by PW1 Smt. Sonwati. Smt. Sonwati is a rustic and illiterate woman that is why her assessment and measurement of distance may not be completely correct. Her testimony in this regard is apparently based on guess-work only. As per the statement of PW3 Doctor Amar Singh, the fire arm injuries were caused from the close range as there was blackening present on the injury No. 5. PW1 and PW2 have testified that when Sri Mahipal fell down on earth, accused Munna fired upon Mahipal. This statement shows that fire arm injuries were caused from close range and that's why the blackening was found on the body and the cloths of the deceased Mahipal. 38. Learned counsel for the appellants has referred (1976) 3 SCC 564 Bahal Singh v. The State of Haryana, we have gone through the entire judgment and find that it does not help to the accused-appellants, because the matter which was for consideration before Hon'ble The Apex Court is quite different from the facts of this case. 39. Learned counsel for the appellants has submitted that there are many contradictions in the statements of PW1 Smt. Sonwati and PW2 Sri Rajesh that's why the accused-appellants cannot be convicted in the offence under Section 302 I.P.C. 40. In the matter of Ramesh Harijan v. State of U.P. (2012) 5 SCC 777 , Hon'ble The Apex Court enunciated law that if there are no material discrepancies or contradictions in the testimony of a witness, his/her evidence cannot be disbelieved merely on the ground of some normal, natural or minor contradictions, in consistencies, exaggerations and embellishment. In the matter of Ramesh Harijan v. State of U.P. (2012) 5 SCC 777 , Hon'ble The Apex Court enunciated law that if there are no material discrepancies or contradictions in the testimony of a witness, his/her evidence cannot be disbelieved merely on the ground of some normal, natural or minor contradictions, in consistencies, exaggerations and embellishment. Normal contradictions do not corrode the credibility of a party's case but material contradictions do so. In view of the above law we have examined the statement of complainant/PW1 Smt. Sonwati and PW2 Sri Rajesh eye witnesses and find that there are few discrepancies and contradictions in the statement of both witnesses but these discrepancies are immaterial and do not adversely effect the root of the case. 41. Learned counsel for the appellants has referred the case law 2016 (93) ACC 525 Rajiv Singh v. State of Bihar and Another. We have gone through the entire judgment of Hon'ble The Apex Court. We may say that this case law does not assist accused-appellants, because facts of that case are totally different from the case pending for consideration before this Court. 42. Learned counsel for the appellants has referred another case law (2004) 10 SCC 699 Narendra Singh And Another v. State of M.P., we have gone through the entire judgment passed by Hon'ble The Apex Court and finds that this case law also does not assist the accused-appellants. The facts of the case are entirely different from the facts of this case. 43. We have gone through the judgment recorded by learned Additional Sessions Judge, who at page 27 opined that the 12 bore gun was recovered from the appellant/accused Anokhe Lal, who died during the pendency of this appeal, and the case has already been abated. The opinion of learned Additional Sessions Judge is against the record and the evidence adduced by the prosecution. In fact no gun was recovered from accused Anokhey Lal. As per statement of PW-4, Kanhaiya Lal, I.O., it was deposited with Bareilly Gun House, Badaun that is why it was not taken into custody of police. 44. The learned counsel for the appellants further submitted that the prosecution has utterly failed to prove the offence against appellant Munna under Section 25(1)(a) of Arms Act, because the pistol was recovered from the place which is easily accessible to public at large. 45. 44. The learned counsel for the appellants further submitted that the prosecution has utterly failed to prove the offence against appellant Munna under Section 25(1)(a) of Arms Act, because the pistol was recovered from the place which is easily accessible to public at large. 45. In the matter of Mahavir Singh v. State of Haryana (2014) 6 SCC 716 Hon'ble The Apex Court has held that it is a settled legal proposition that in case as the witness was not cross-examined on a particular fact, the correctness or legality of the said fact cannot be raised. We have thoroughly and carefully considered the submission of learned counsel and find that the submissions have no force because PW-4 was not question on the point of recovery of tamancha/country made pistol. Even no suggestion was given that country made pistol, empty and live cartridges were not recovered at the pointing of accused/appellant Munna from the place as stated by the prosecution. 46. We have gone through the statement of PW-4 Kanhaiya Lal, I.O. of Crime No. 53 of 2001, under Section 302 read with Section 34 I.P.C. and complainant of Crime No. 74 of 2001 of Section 25 of Arms Act and also the statement of Shri Surendra Singh, P.W-6. I.O. of Crime No. 74 of 2001, under Section 25 of Arms Act and find that these two witnesses were not cross-examined on the point of recovery. No suggestion was given that alleged recovery was false. Since accused/appellants did not cross-examine both witnesses, PW-4 and PW-6 on the point of recovery of country made pistol with one empty and live cartridges, then in these circumstances it shall be presumed that the country made pistol with empty and live cartridges were recovered at the pointing of accused/ appellant Munna from the field/forest of Village Bujhia, P.S. Musajhag, District Badaun specially in the light of fact, the prosecution evidence on this score is reliable and credible. 47. As discussed above, we are of the considered opinion that the prosecution has fully established, the recovery of country made pistol with one empty and live cartridges at the instance of accused appellant Munna at about 7:00 a.m. on 16.06.2001 in the field/forest of Village Bujhia, P.S. Musajhag, District Badaun. 48. No other argument advanced by the learned counsel for the accused appellants. 49. 48. No other argument advanced by the learned counsel for the accused appellants. 49. We have gone through the judgment and order passed by learned Trial Court dated 18.09.2003 and find that there is nothing wrong in the opinion expressed by learned Trial Court. Impugned judgment is in consonance of the facts and law. 50. In view of the above discussions, we are of the view that appeal is devoid of merits and liable to be dismissed. 51. Consequently, appeal is dismissed. Judgement of learned Trial Court dated 18.09.2003 is hereby upheld. Accused Anokhe Lal died during pendency of appeal therefore his appeal stand abated, vide order dated 12.09.2013. If the accused Munna is on bail then he shall surrender before learned concerned Additional Sessions Judge, Budaun within 15 days from of the date of this judgment. 52. The appeal is dismissed. 53. Office is directed to certify the judgment of this Court to trial Court within 15 days. Trial Court shall report compliance within one month thereafter.