JUDGMENT : (Delivered by Hon'ble Arvind Kumar Mishra-I, J.) Heard Sri S.B. Kocher, learned counsel for the appellants and S/Shri A.N. Mulla, Sageer Ahmad, J.K. Upadhyay, learned A.G.As. for the State. The instant criminal appeal has been directed against the sustainability of the judgment and order of conviction dated 22.3.2007 passed by the Additional Sessions Judge-1st, Mathura in Sessions Trial No. 1026 of 2004, arising out of case crime no. 219 of 2004, under sections 147, 148, 149, 302, 323, 504, 506 I.P.C., Police Station- Baldev, District- Mathura and Sessions Trial No. 1020 of 2004 arising out of case crime no. 220 of 2004, under section 25 Arms Act, Police Station Baldev, district Mathura, whereby, the appellant -Amar Singh has been convicted under sections 148, 302, 323 read with sections 149, 504, 506 I.P.C. Appellants - Mahavir Singh, Nanak Chandra, Roshan Singh, Hukmum Singh have been convicted under sections 147, 302 read with Sections 149, 323, 504 and 506 I.P.C. and accused- appellant Amar Singh has been convicted under section 25 Arms Act. Brief sketch of the sentence awarded by the trial court is as herein under:- Appellant- Mahaveer- has been sentenced to one year R.I. under Section 147 IPC; imprisonment for life coupled with fine Rs.1000/- in case of default of payment of fine- one month simple imprisonment under Section 302 read with Section 149 IPC; six months rigorous imprisonment under Section 323 IPC; one year rigorous imprisonment each under Sections 504 and 506 IPC, respectively. Appellant- Nanak Chand- has been sentenced to one year rigorous imprisonment under Section 147 IPC; life imprisonment coupled with fine Rs.1000/- in default of payment of fine one month simple imprisonment under Section 302 read with Section 149 IPC; six months rigorous imprisonment under Section 323 IPC; one year rigorous imprisonment each under Sections 504 and 506 IPC, respectively. Appellant- Roshan Singh- has been sentenced to one year R.I. under Section 147 IPC; life imprisonment coupled with fine Rs.1000/- in default of payment of fine one month simple imprisonment under Section 302 read with Section 149 IPC; six months rigorous imprisonment under Section 323 IPC; one year R.I. each under Sections 504 and 506 IPC, respectively. Appellant- Roshan Singh- has been sentenced to one year R.I. under Section 147 IPC; life imprisonment coupled with fine Rs.1000/- in default of payment of fine one month simple imprisonment under Section 302 read with Section 149 IPC; six months rigorous imprisonment under Section 323 IPC; one year R.I. each under Sections 504 and 506 IPC, respectively. Appellant- Hukum Singh- has been sentenced to one year R.I. under Section 147 IPC; life imprisonment coupled with fine Rs.1000/- in default of payment of fine- one month simple imprisonment under Section 302 read with Section 149 IPC; six months rigorous imprisonment under Section 323 IPC; one year R.I. each under Sections 504 and 506 IPC, respectively. Appellant- Amar Singh- has been sentenced to one year R.I. under Section 148 IPC; life imprisonment coupled with fine Rs.1000/- in default of payment of fine one month simple imprisonment under Section 302 IPC; six months rigorous imprisonment under Section 323 IPC read with Section 149 IPC; one year R.I. each under Sections 504 and 506 IPC, respectively. Appellant- Amar Singh has been sentenced to three years R.I. coupled with fine Rs.500, in payment of default of fine one year simple imprisonment. All the sentences have been directed to run concurrently. In nutshell, the prosecution story, as reflected from the record, indicates that informant- Mohan Singh- lodged a written report at 20.45 hours on 28.6.2004 at police station- Baldev, district Mathura regarding the incident of murder of his brother- Ummed Singh, committed by the present appellants in village Bhartiya, district Mathura at 5:15 p.m. on 28.6.2004 with allegations that informant was sitting along with his brothers- Ummed, Geetam and Devendra in courtyard of his house at 5:15 p.m. on 28.6.2004, when the accused persons- Mahavir Singh s/o Har Lal, Nanak Chand s/o Mahavir Singh, Roshan Singh s/o Mahavir Singh, Hukum Singh s/o Mahavir Singh bearing ''lathi' in their hands and Amar Singh possessing ''tamancha' (country-made gun)in prosecution of their common object arrived in the courtyard of informant and abused them and said that the money, which has been paid to them for fodder (Charri) is less than that which was to be paid actually. The informant objected to the same and said that the entire payment has already been made, whereupon, the accused persons insisted for taking excess payment, which was refused, which infuriated Mahavir Singh, Nanak Chand, Roshan Singh, Hukum Singh and they caused ''lathi' blow on the informant side and in the meanwhile Hukum Singh exhorted Amar Singh to open fire on Ummed Singh. Amar Singh fired on Ummed Singh due to which, he fell down on the ground. Hearing the hue and cry, Man Singh s/o Ninwa arrived on the spot and saw Amar Singh firing on Ummed Singh. While fleeing away the assailants, also threatened the informant of dire consequences, if they lodged any report. Informant and Man Singh took Ummed Singh to the police station from where a letter was written and handed over to the informant with instruction to take the injured to the District Hospital. Upon reaching District Hospital, the doctors, who attended Ummed Singh, advised to take him to Methodist Hospital, as the condition of Ummed Singh was serious. While on way to Methodist Hospital, Ummed Singh succumbed to his injuries. It was requested that report be lodged and proper action be taken. This written report is Exhibit Ka-1. Contents of the first information report were taken down in the concerned check F.I.R. at Case Crime No. 219/2004, under Sections 147, 148, 149, 302, 504, 506 IPC at Police Station- Baldev District- Mathura at 20:45 hours. Copy of check F.I.R. is Exhibit Ka-8. On the basis of entry made in the check F.I.R., a case was registered against the accused persons in the concerned General Diary at serial no.36 on 28.6.2004 at 8:45 p.m. in aforesaid case crime number and under aforesaid sections of IPC. Copy of G.D. is Exhibit Ka-9. The investigation followed and was taken over by S.I. R.K. Singh PW-9. In the process, inquest of deceased- Ummed Singh- was held at the Methodist Hospital, District- Mathura, and was processed by H.C.P. Prahalad Singh PW-4 on 29.6.2004. Inquest report is Exhibit Ka-2. Since the opinion was expressed by the inquest witnesses that the dead body be sent for postmortem examination for ascertaining real cause of death, therefore, relevant papers for sending the dead body for postmortem examination were also prepared which papers are Exhibit Ka-3 to Exhibit Ka-7. In the process, postmortem examination on the cadaver of deceased was conducted by Dr. Since the opinion was expressed by the inquest witnesses that the dead body be sent for postmortem examination for ascertaining real cause of death, therefore, relevant papers for sending the dead body for postmortem examination were also prepared which papers are Exhibit Ka-3 to Exhibit Ka-7. In the process, postmortem examination on the cadaver of deceased was conducted by Dr. Subhash Chandra PW-6 on 29.6.2004 at 3:40 p.m., wherein, the following ante-mortem injuries were noted by the doctor, which is ut-infra:- (1) Multiple firearm wounds of entry area 28 c.m. x 30 c.m. over both side chin front and both side neck. Front of chest both side above the nipple. Left shoulder joint and outer part of left upon arm upper part, size varying from 0.3 c.m. x 0.3 c.m. to skin to 0.7 cm x 0.6 cm muscle and cavity deep. In the opinion of doctor, cause of death was stated to be shock and haemorrhage due to ante-mortem injuries. Postmortem report is Exhibit Ka-10. Record reflects that medical examination of Geetam was conducted on 29.6.2004 at District Hospital, Mathura by Dr. Brahma Dev PW-8. Geetam was medically examined by him at 12:25 p.m., wherein the following injuries were noted on examination: 1. One Reddish contused swelling size 02 cm x 02 cm on left side head and 05 cm above left ear. 2. One Reddish contused swelling 04 cm x 03 cm on back of left side chest upper back. 3. One Reddish contused swelling 05 cm x 03 cm on the back of right hand. Duration of injury was stated to be about ¾ day. Injury no. 3 was kept under observation and advised x-ray injuries no. 1 and 2 were rated to be simple and caused by hard and blunt object. This injury report is Exhibit Ka-11. Devendra, the another injured, was medically examined by Dr. Brahma Dev at 12:35 p.m., wherein the following two injuries were noted:- 1. Contused (Reddish) swelling size 06 cm x 03 cm on the left side back of chest. 2. C/O pain on back of left hand but no mark of external injury was seen. His injuries were stated to be of duration ¾ day and was rated simple and opined to have been caused by hard and blunt object. Another injured Mohan Singh was also examined by Dr. 2. C/O pain on back of left hand but no mark of external injury was seen. His injuries were stated to be of duration ¾ day and was rated simple and opined to have been caused by hard and blunt object. Another injured Mohan Singh was also examined by Dr. Brahma Dev at 12:45 p.m. whereupon the following injuries were found on his person. In all, three injuries were found. 1.One Reddish contused swelling 02 cm x 02 cm on the left side head 05 cm above left ear. 2. Abrasion 03 cm x 0.5 cm on the left side back of chest scapular region. 3. One Reddish contused 02 cm x 01 cm on back of left little toe. Duration of the injuries, was ¾ days old. Injuries were simple in nature and may have been caused by hard and blunt object. The injury report of Devendra and Mohan Singh are Exhibit Ka-12 and Ka-13, respectively. During course of investigation, the accused was arrested at ''Awarany' crossing around 6:00 a.m. on 29.6.2004 by Investigating Officer. On search being made from accused Amar Singh s/o Mahavir Singh, one country-made gun 12-bore with one empty cartridge was recovered from his possession. The recovered gun and cartridge were taken into possession and the same were sealed. Hukum Singh and Nanak Singh were also arrested. Memo of arrest and recovery is Exhibit Ka-14. The Investigating Officer also collected sample of simple and blood-stained clay- roll from the spot and prepared memo of the same Exhibit Ka-17. Besides, the Investigating Officer also recorded the statement of various persons including prosecution witnesses and prepared site plan of the place of occurrence at the instance of the informant- Mohan Singh, the same is Exhibit Ka-16. The site map of place of arrest is Exhibit Ka-15. Record further reflects that report from Forensic Science Laboratory, Agra, was also obtained, which is on record, as Exhibit Ka-19 and Ka-25, respectively. After completing investigation, the Investigation Officer filed charge-sheet against accused persons, which charge-sheet is Exhibit Ka-18. The site map of place of arrest is Exhibit Ka-15. Record further reflects that report from Forensic Science Laboratory, Agra, was also obtained, which is on record, as Exhibit Ka-19 and Ka-25, respectively. After completing investigation, the Investigation Officer filed charge-sheet against accused persons, which charge-sheet is Exhibit Ka-18. It is further reflected from record that after arrest of the accused persons on 29.6.2004, the Investigating Officer- R.K. Singh- lodged first information report against Amar Singh at Police Station- Baldev, District- Mathura regarding recovery of country-made gun and a case was registered at Case Crime No. 220/2004 under Section 25 Arms Act at P.S.- Baldev on 29.6.2004 at 7:35 a.m. The copy of check F.I.R. is Exhibit Ka-20. On the basis of the relevant G.D. a case was registered against accused- Amar Singh at aforesaid case crime number under Section 25 Arms Act, which is Exhibit Ka-21. The check F.I.R. and the G.D. entry have been proved by constable- Daya Ram Maurya PW-10. The investigation of this case was handed-over to S.I. Ram Pal Singh PW-11, who inspected the spot and prepared the site plan Exhibit Ka-22 and after recording the statement of various persons, completed the investigation after obtaining sanction for prosecution from District Magistrate and submitted charge-sheet vide Exhibit Ka-23. Pursuant thereto, both the cases under aforesaid case crime numbers were committed to the Court of Session from where it was transferred to the concerned trial court for conduction and disposal of trial. Both the trials were proceeded as S.T. No. 1026/2004 (concerning Case Crime No. 219/2004) and S.T. No. 1020/2004 (concerning Case Crime No. 220/2004) and accused- Mahavir Singh, Nanak Chand, Roshan Singh and Hukum Singh were charged under Sections 147, 302, 323/149, 504, 506 IPC and accused Amar Singh was charged under Sections 148, 302/149, 504, 506 IPC and Section 25 Arms Act. Charges were read over and explained to the accused persons, who abjured charges and opted for trial. In the process, the prosecution was required to adduce its testimony for proving the charge. Consequently, the prosecution produced in all 11 witnesses, a brief sketch of the same is ut-infra:- (1) Mohan Singh PW-1 is the eye-witness of the occurrence and has proved the written report, Exhibit Ka-1. (2) Geetam Singh PW-2 is injured eye-witness. He has described the incident. (3) Man Singh PW-3 is eye-witness of the occurrence and has described the incident. Consequently, the prosecution produced in all 11 witnesses, a brief sketch of the same is ut-infra:- (1) Mohan Singh PW-1 is the eye-witness of the occurrence and has proved the written report, Exhibit Ka-1. (2) Geetam Singh PW-2 is injured eye-witness. He has described the incident. (3) Man Singh PW-3 is eye-witness of the occurrence and has described the incident. (4) H.C.P. Prahalad Singh is PW-4. He completed inquest, proceeding on 29.6.2004 and has proved the same. (5) Awan Kumar Dixit PW-5 is the Head Moharir who entered the concerned check F.I.R. and the G.D., whereby, the case was registered against the accused persons and has proved the same. (6) Dr. Subhash Chand PW-6 conducted autopsy on the cadaver of deceased- Ummed Singh on 29.6.2004 at District Hospital, Mathura and has proved the postmortem- report vide Exhibit Ka-10. (7) Constable Vijay Pal Pathak PW-7 along with another constable took the corpse of Ummed Singh after inquest to the District Hospital for postmortem examination and has proved the same. (8) Dr. Brahma Dev PW-8 has medically examined three injured persons- Geetam, Devendra and Mohan Singh on 29.6.2004 at 12:25 p.m., 12:35 p.m. and 12:45 p.m. and has proved the injury reports, as Exhibits Ka-11, Ka-12 and Ka-13, respectively. (9) S.I. R.K. Singh P.W.9 is the Investigating Officer. He has detailed the investigation conducted by him and has filed the charge-sheet against accused persons vide Exhibit Ka-18. (10) Constable clerk Daya Ram Maurya PW-10 has entered Case Crime No. 220/2004 under Section 25 Arms Act in the check F.I.R., wherein, after instruction of the Investigating Officer R.K. Singh, he arrested accused Amar Singh around 6:00 a.m. on 29.6.2004. He has also proved registration of case in the concerned G.D. entry vide Exhibit Ka-21. (11) S.I. Ram Pal Singh is the Investigating Officer of the aforesaid case at aforesaid Case Crime number under Section 25 Arms Act. He has detailed the steps he took in completing the charge-sheet against accused Amar Singh, as Exhibit Ka-23. He has also proved registration of case in the concerned G.D. entry vide Exhibit Ka-21. (11) S.I. Ram Pal Singh is the Investigating Officer of the aforesaid case at aforesaid Case Crime number under Section 25 Arms Act. He has detailed the steps he took in completing the charge-sheet against accused Amar Singh, as Exhibit Ka-23. Except as above, no other testimony was adduced by the prosecution, therefore, evidence by the prosecution was closed and statement of accused persons was recorded under Section 313 Cr.P.C., wherein, they claimed themselves innocent and submitted that accused persons have been falsely implicated in this case on account of enmity and village parti-bandi and some money was lent by them to the informant side and in order to avoid payment, the informant side named them in the incident. The defence did not lead any evidence, whatsoever. The learned trial court after hearing both the sides on the merit of the case and after considering the evidence and facts on record returned finding of conviction, as aforesaid, and sentenced them accordingly. It has been vigorously contended on behalf of the appellants that the entire facts and circumstances of the case profusely indicate that the incident was caused by some unknown persons and no one saw the incident and the actual assailants. All the prosecution witnesses of fact, in fact, arrived on the spot after coming to know about the incident. They never witnessed the incident. Their testimony on the whole gives contradictory description of the manner and style of the occurrence. How deceased (Ummed Singh) was killed, remains a mystery. In order to generate false presence of the eye-witnesses, the police in collusion with the informant, got the witnesses medically examined by Dr. Brahma Dev P.W.8 on the other day of the incident, i.e. 29.6.2004 between 12:25 p.m. - 12.55 p.m., which by itself indicates fabrication of false injury report and embellishments created by the prosecution in its story. The doctor witness Brahma Dev PW-8 has categorically stated that all these injuries were simple, therefore, the possibility is that these injuries could have been fabricated easily. No explanation is forthcoming from the prosecution side as to how and why the medical examination of the injured were deferred upto 12:25 p.m. on 29.6.2004 after the incident took place around 5:15 p.m. on 28.6.2004. No explanation is forthcoming from the prosecution side as to how and why the medical examination of the injured were deferred upto 12:25 p.m. on 29.6.2004 after the incident took place around 5:15 p.m. on 28.6.2004. Learned counsel vociferously adds that the arrest of the accused persons on 29.6.2004 by the Investigating Officer- R.K. Singh is illegal, in view of fact that he received information regarding location of the three accused persons at specific place, but he could not find any independent public witness. This by itself places suspicion on the arrest of accused persons from the spot, as alleged. The motive alleged for commission of the crime has not been proved properly. Some prosecution witnesses of the incident say that the payment for fodder (charri) had already been made, whereas, some say that part payment was made by the informant side and another witness says that entire payment was earlier made. Therefore, 'motive' has not been properly proved. The Investigating Officer also did not ensure sending of the country-made gun for forensic examination. The Investigating Officer PW-11 S.I. Ram Pal Singh has himself stated in his cross-examination that he did not send the country-made gun for forensic examination. If it is so, then it is obvious that either the things have been manipulated or it was caused by the active indulgence of the another Investigating Officer concerning Case Crime no. 219/2004. On the whole, the entire circumstances and the testimony on record does not inspire confidence and creates wide hollowness in the prosecution case. Testimony of the prosecution witnesses of fact is full of contradictions and prosecution has tried to plug various loopholes emerging in its story by taking false pretext and excuse. The trial court while appreciating evidence and facts on record failed utterly to take correct position and recorded finding of conviction. The learned AGA while retorting to aforesaid contention has submitted that the testimony on record is consistent and particularly the witnesses of fact, who have been examined, have given consistent version of the occurrence by detailing the manner and style of the incident. Opinion of doctor is not binding and conclusive but always suggestive of a fact in a given situation. Postmortem report indicates that the gunshot fire caused death of the victim (Ummed Singh). Presence of prosecution witnesses on the spot is most natural and that cannot be doubted. Opinion of doctor is not binding and conclusive but always suggestive of a fact in a given situation. Postmortem report indicates that the gunshot fire caused death of the victim (Ummed Singh). Presence of prosecution witnesses on the spot is most natural and that cannot be doubted. The informant side was terrified over the incident and was busy till postmortem examination of the deceased, therefore, under such circumstances, it is noticeable that it was not possible to hurry for medical examination of the injured persons and in case, medical examination of the injured persons was done on 29.6.2004 after 12:25 p.m., then the same cannot create doubt in the prosecution case. Contradictions emerging in the testimony of witnesses of fact are natural, but these contradictions are of trivial nature. These contradictions are not substantial one and it cannot be said that the same hit at the root of the case. The learned trial Judge while considering the case on merit has recorded just finding and has rightly passed the order of conviction and sentence. We have considered the rival submissions and also considered the rival claims made by both the sides in view of context under consideration. The moot point that arises for determination of this appeal relates to fact whether the prosecution has been able to prove its case beyond reasonable doubt against the accused persons and the prosecution witnesses saw the incident? The crux of prosecution allegation, as emanates from first information report, appears to be that the informant- Mohan Singh alleged that it was at 5:15 p.m. on 28.6.2004 when the first informant was sitting in his 'verandah'(courtyard) along with his brothers- Ummed, Geetam and Devendra when the accused persons of whom- Mohan Singh, Roshan Singh, Hukum Singh and Nanak Chand were possessing 'lathi' in their hands and Amar Singh was possessing country-made gun ('tamancha'). They appeared on the courtyard abusing and said that they have not been paid full consideration of the cost of fodder. The claim was opposed, whereupon, the accused were infuriated and they began to assault with 'lathi' and in the meanwhile, Hukum Singh exhorted Amar Singh for opening fire on Ummed, whereupon, Amar Singh fired on Ummed Singh, which fire hit him and he fell down on the ground. Hearing the noise, Man Singh arrived on the spot and witnessed the incident. Hearing the noise, Man Singh arrived on the spot and witnessed the incident. All the assailants while fleeing away threatened of dire consequences to the informant side, if they lodged any report. Informant along with Man Singh took Ummed Singh to the police station from where a letter was prepared for medical examination of Ummed Singh and they arrived along with Ummed Singh at the District Hospital for medical examination. At the District Hospital, looking to the serious condition of Ummed Singh, doctor advised them to take him (deceased- Ummed Singh) to Methodist Hospital. While on way to Mathodist Hospital, Ummed Singh succumbed to his injuries. In view of above factual backdrop of allegations made by the first informant, it is obvious that soon after the occurrence, the deceased was taken to the police station from where a letter was prepared for medical examination of the then injured-Ummed Singh- and he was taken to the District Hospital from where he was advised to be admitted at Methodist Hospital, meaning thereby, the occurrence had come in the knowledge of the concerned police station that the incident of firing had taken place. When we glance over the testimony of the informant- Mohan Singh PW-1, then obviously, we come across deposition to the ambit that after the doctors of the Methodist Hospital declared Ummed Singh "brought dead" then the informant came to lodge the written report with scribe- Anil Kumar- at some shop near police station. This aspect of the case is virtually admitted to the prosecution. In this particular background of the case, we also take note of fact that three injured persons, namely, Geetam, Devendra and Mohan Singh have been medically examined at the District Hospital, Mathura on 29.6.2004 at 12:25 p.m., 12:35 p.m,. and 12:45 p.m. and they have been examined by Dr. Brahma Dev PW-8. He has specifically stated in his cross-examination that the injuries noted by him upon medical examination of the three persons were simple in nature and these injuries might have been easily made. Here, we may observe that the entire record is silent on point, as to how and why this medical examination was deferred upto the next date of the occurrence(on 28.6.2004 at 5:15 p.m.) after 12:25 p.m. on 29.6.2004. Here, we may observe that the entire record is silent on point, as to how and why this medical examination was deferred upto the next date of the occurrence(on 28.6.2004 at 5:15 p.m.) after 12:25 p.m. on 29.6.2004. At this stage, we may take note of fact that Awan Kumar Dixit PW-5, the constable who entered contents of written report at Case Crime No. 219/2004 at Police Station- Baldev in fact examined Mohan Singh externally at the time of lodging of FIR and came to the conclusion that no visible injury was seen on the person of Mohan Singh. Not only this, he also asked Mohan Singh about any injury on his person and whether he required any medical examination, then the informant kept silent. This specific testimony of Awan Kumar Dixit PW-5 appears on page no. 50 and 51 of the paper book. One may contemplate over this particular aspect and may easily draw conclusion that things have been tried to be managed to a certain extent to fill up some loopholes in the prosecution story. It is not invariable conclusion, under facts and circumstances of the case that there must be some signs of injury caused to a witness present on the spot and then only his presence on the spot will be deemed by the court, but presence is a fact to be gathered from attending circumstances and from the description of testimony forthcoming from witnesses, who claims himself present on the spot. Now, we may scrutinize the facts and ocular testimony. Mohan Singh PW-1, the informant says in his examination-in-chief that at the relevant point of time, he was sitting in the courtyard of his house when the four accused persons armed with lathis and Amar Singh armed with country-made gun, arrived on the spot. They said that payment for supply of fodder has not been made, whereupon, this witness said to them that the money, which was agreed on to be paid, would be given to them. The witness tried to give money to them, but they returned this money and they insisted for taking excess money and this started the chaos. Hukum Singh exhorted Amar Singh to open fire on Ummed Singh, then, Amar Singh fired on Ummed Singh, who fell on the ground after receiving gunshot injury. This witness says that this incident was witnessed by various persons including Man Singh PW-3. Hukum Singh exhorted Amar Singh to open fire on Ummed Singh, then, Amar Singh fired on Ummed Singh, who fell on the ground after receiving gunshot injury. This witness says that this incident was witnessed by various persons including Man Singh PW-3. Testimony of Mohan Singh also indicates that the incident of firing was followed by assault by lathi. He has been confronted in his cross-examination that he sustained injury, but he did not mention this particular fact in the first information report. Can he assign any reason? Then the witness could not assign any reason. Next, he has been confronted on point that he(PW-1) gave statement in the Court (before trial court) regarding the payment being made for fodder was returned by the accused persons! PW-1 says if such statement has been given by him before this Court, (trial court) then that is incorrect. He says Rs.250/- had been paid whereas Rs. 50/- were in arrears and remained to be paid. Again confronted whether he made any statement to Daroga Ji on the similar line then he is silent and he cannot assign any reason as to why this statement does not appear in his statement under Section 161 Cr.P.C. Again on page no. 26 of the paper book, he has been confronted with certain questions about his actual position at the time of occurrence. Then, he says that at the time of occurrence, he was not in the courtyard of his house but in the courtyard of Ummed and he cannot assign any reason as to how he deposed to the ambit that he was sitting in the courtyard of his house. On the same page of the paper book regarding fact of injury being caused to him and the other witnesses, he says the assailants came abusing and started causing lathi blow. He received three lathi blows and similarly Devendra and Geetam also received three lathi blows and Geetam fell down. Blood oozed out from his (Mohan Singh PW-1) head and his clothes were containing blood stains. His blood-stained clothes were seen by him to Daroga Ji and there was injury on his head at the time when he arrived at the police station to lodge the report. Daroga Ji had seen his injury. Blood oozed out from his (Mohan Singh PW-1) head and his clothes were containing blood stains. His blood-stained clothes were seen by him to Daroga Ji and there was injury on his head at the time when he arrived at the police station to lodge the report. Daroga Ji had seen his injury. This witness was confronted by specific question, if the concerned G.D. entry at the police station contains description that no visible injury was seen on his person, then he cannot assign any reason. At this stage, it would be relevant to take stock of testimony of constable Awan Kumar Dixit PW-5 who has disclosed in his cross-examination on page no. 50 of the paper book that on examination on the person of informant (Mohan Singh) he did not notice any visible injury. He further adds that written entry was made only after examination of the person and not only this, he also verbally asked the informant, if he has sustained any injury, then his medical examination may be done. But the informant did not tell anything about any injury on his person. He (PW-5) was again confronted as to how he came to examine the person of the informant, whereupon, this witness spelled that written report itself contained narration that lathi blows were caused to the informant, his brothers Geetam and Devendra and it was only due to this particular description that PW-5 examined person of the informant at the time of lodging of the report. PW-5 did not stop here. He also asked about the other injured- Geetam and Devendra, but the informant did not tell anything about whereabouts of Geetam and Devendra. This witness further says that the special report was not sent to higher authorities the very same day when the report was lodged. Now, we may turn over to the testimony of another alleged injured witness Geetam Singh PW-2. He says that he along with Mohan Singh, Devendra Singh and Ummed Singh were sitting in the courtyard of Ummed Singh when the accused persons arrived on the spot abusing them. Mohan Singh, Nanak Chand, Roshan Singh and Hukum Singh were bearing lathi in their hands and Amar Singh was possessing country-made gun. They demanded payment for supply of fodder, whereupon, he said we have already made the payment, then the accused persons insisted for excess payment, which was refused by the informant side. Mohan Singh, Nanak Chand, Roshan Singh and Hukum Singh were bearing lathi in their hands and Amar Singh was possessing country-made gun. They demanded payment for supply of fodder, whereupon, he said we have already made the payment, then the accused persons insisted for excess payment, which was refused by the informant side. Then the assailants began to assault the first informant and this witness, and in the meanwhile, Hukum Singh exhorted Amar Singh to fire on Ummed Singh. Then Amar Singh fired on Ummed Singh, which fire hit him and he fell on the ground then and there. He has been cross-examined, wherein, we notice certain contradictions in his testimony, which contradictions stand in context to the ocular version of PW-1 regarding factum of incident and sequence of assault. He says blood was oozing out from his hand and from the head of Mohan Singh. He says he was not examined at the police station. Although, the constable was near to him and he had shown his injury to the constable. This piece of testimony can be well understood to be outcome of tutoring and blatant improvement because PW-5 had already asked the informant (PW-1) about Geetam and Devendra when informant did not tell anything about any injury being caused to them and kept silent about their whereabouts. Further, he says after lodging of the report, the constable took Devendra, Man Singh and himself to the hospital. Hollowness of this claim is exposed under prevailing circumstance that medical examination of Geetam was done at 12:25 p.m. at District Hospital, Mathura on 29.6.2004 and after a gap of 10 minutes each, medical examination of Devendra and Mohan Singh followed. After the constable immediately took the three injured to the hospital for medical examination after lodging of the report then there is no explanation for such inordinate delay in the medical examination of the three injured persons. We can again repeat for coherence that PW-8 Dr. Brahma Dev, who examined the injured has categorically stated that all the injuries found on the three injured persons might have been manufactured easily. In the face of such specific testimony, it is obvious that the medical examination was done at such inordinate delay in order to give thrust to presence of prosecution witnesses of fact, viz. Brahma Dev, who examined the injured has categorically stated that all the injuries found on the three injured persons might have been manufactured easily. In the face of such specific testimony, it is obvious that the medical examination was done at such inordinate delay in order to give thrust to presence of prosecution witnesses of fact, viz. PW-1, PW-2 and PW-3, namely, Mohan Singh, Geetam and Man Singh, respectively because in cases where criminal liability is evaluated, presence of witnesses on the spot forms core consideration and which gives lever to the credibility of their testimony and in this case point of injury was, it is obvious, thought out after lodging of the first information report and perhaps on 29.6.2004 only. Specific reason being that after the occurrence, injured Ummed Singh was first taken to the police station. It means the police station was already seized of the fact of the incident prior in time, than the lodging of the report at 20:45 hours on 28.6.2004 after death of Ummed Singh. This aspect of deliberation gets strengthened by fact that the letter meant for medical examination of the injured persons did not bear any case crime number or any section of IPC which aspect, on the whole renders suspicious these papers (letters-chitthi) itself and in particular the medical examinations of all the three injured. The doctor has specifically stated on page no. 58 of the paper book in his cross-examination that all the injuries were simple and did not bear any blood mark. No blood was oozing out from the injuries. This particular aspect is in direct contrast to the ocular testimony of PW-1 and PW-2, the two injured persons when they say that blood oozed out from their head and from their hand, respectively. Mohan Singh (PW-1) is trying to improve his case. He has been cross-examined on various points, as emerging on page no. 27 of the paper book in his cross-examination. For instance, he says the country-made gun possessed by Amar Singh was of 12-bore. He further added that he did not see any country-made gun previously to the present occasion and he does not know about "bore denomination" pertaining to these guns. On the same page, he says when Amar Singh and Basanti arrived on the spot, Ummed Singh had fallen. On page no. He further added that he did not see any country-made gun previously to the present occasion and he does not know about "bore denomination" pertaining to these guns. On the same page, he says when Amar Singh and Basanti arrived on the spot, Ummed Singh had fallen. On page no. 29 of the paper book, he says that at the time of preparation of the inquest, he was present on the spot but the defence has come with contention that he is not inquest witness. The inquest witnesses are Kaptan Jai Singh, Basanti, Bhajan Lal, Dharmveer and Man Singh. Now on point of actual occurrence, as to what happened on the spot, certain relevant testimony emerges on page no. 31 of the paper book in the cross-examination of PW-1. As per ocular testimony, this witness says he was assaulted first then Geetam thereafter Devendra were assaulted and immediately after that at a gap of about half to one minute, shot was fired. He went on to say that it would be correct to say that Ummed Singh was hit first by the shot and then these witnesses tried to rescue him, then they were assaulted. He has been confronted with his statement given to the Investigating Officer to the extent that Hukum Singh exhorted Amar Singh to fire on Ummed Singh, whereupon, the informant and others, who tried to save Ummed Singh were assaulted. When asked about reason as to how such statement was recorded by the Investigating Officer, he says both the statements are true. One may easily understand import of such vacillating testimony on a particular aspect of the occurrence. On the same page, he says that all the three injured had fallen, whereas, PW-2 says on page no. 36 of the paper book of his testimony in cross-examination that no one fell down on the ground (among the injured) and no blood oozed out from any of them. Blood oozed out only from body of Ummed Singh. Which one among the witnesses is to be believed is hard to distinguish. PW-2 further says that the fodder was purchased by him from the assailants and it was not purchased from Ummed Singh and then he cannot say as to why he (Ummed) was fired by the assailants. He further adds that Ummed Singh even did not return the abuse in exchange on the assailants. PW-2 further says that the fodder was purchased by him from the assailants and it was not purchased from Ummed Singh and then he cannot say as to why he (Ummed) was fired by the assailants. He further adds that Ummed Singh even did not return the abuse in exchange on the assailants. Further, one relevant aspect of the case emerges in the testimony of PW-2. He says that at the relevant point of time they were sitting on cot. Three people were sitting on another cot when the accused persons came over there, they stood up from the cot and on page no. 35 of the paper book, he says that assailants started beating all of a sudden. It would be relevant to take stock of testimony of Man Singh PW-3 witness of fact, who claims to have arrived on the spot after hearing the noise and said to have witnessed the incident. In so far as the respective weapons being possessed by the accused persons is concerned, he has testified on the same line as PW-1 and PW-2. He says that the assailants were causing 'lathi' blow to Mohan Singh, Devendra and Geetam and thereafter, Hukum Singh exhorted Amar Singh to open fire on Ummed Singh when he fired on Ummed Singh and Ummed Singh after sustaining gunshot injuries, fell on the ground. This is the sequence of occurrence described by this witness, but he also says on page no. 42 that he first saw assault being made by 'lathi' on Mohan Singh, Devendra and Geetam but they did not fall on the ground. However, he says on the same page that he saw blood oozing out from the hand of Geetam but he did not see any blood oozing out from the hand of Mohan. He deposes in the same sequence that shot was fired subsequently and 'lathi' blow was caused previously. However, in the third paragraph of the same page no.42, he has deposed in the cross-examination that he arrived on the spot without hearing any noise. When he arrived, he saw Ummed Singh already hit by gun. This piece of testimony virtually throws doubt on his testimony, as witness of occurrence. However, in the third paragraph of the same page no.42, he has deposed in the cross-examination that he arrived on the spot without hearing any noise. When he arrived, he saw Ummed Singh already hit by gun. This piece of testimony virtually throws doubt on his testimony, as witness of occurrence. Wholesome evaluation of the testimony of all the three prosecution witnesses, we unambiguously come across testimony that the firing was done subsequently to the assault caused by 'lathi' blow and if, Man Singh saw Ummed Singh fallen on the ground, then it is obvious that he reached on the spot only after Ummed Singh had been shot on the spot and had fallen. How can he say that he saw 'lathi' blow being caused to Man Singh, Geetam and Devendra. It is obvious that he is tutoring and improving his testimony like the other two eye-witnesses. If such is the stature and nature of deposition of the eye-witnesses that their account of the incident when read with attendant facts and circumstances and particularly in a situation when facts and circumstances establish that things have been tried to be improved by falsely resorting to medical examination in order to give colour to the presence of witnesses, then rule of prudence requires that such testimony on the whole cannot be said to inspire confidence in establishing guilt of the accused. Sri R.K. Singh- Investigating Officer PW-9 has also been examined, whereby, he has clarified contradictions occurring in the statement of witnesses recorded under Section 161 Cr.P.C. and the testimony recorded in the trial court. It is admitted fact that inquest report was prepared the very other day on 29.6.2004 at 10:00 a.m. This delay in holding inquest has not been explained by this witness. Obviously, the report was lodged on 28.6.2004 on 8:45 p.m. and the dead body was kept in Methodist Hospital and the same was easily accessible place for the police to conduct inquest of the deceased Ummed Singh but the police took almost 13 hours to start preparation of inquest report, this delay is reasonably suggestive of fact, in the absence of plausible explanation, that some deliberation in form of improvement and embellishments was underway and after the situation was managed, the things started running away. He has stated that Geetam also did not point out any injury at the police station at 5:15 p.m. He also deposed that the first informant neither did he come to him nor did he show blood-stained clothes to him. The Investigating Officer has also not shown the place in the site plan from where Man Singh saw the incident. The Investigating Officer has testified on page no. 68 of the paper book in his cross-examination that he did not find any mark of pellets or firing on the wall. The Investigating Officer also did not record statement of the doctor, who examined the deceased (while he was alive) at the District Hospital nor did he record statement of the doctor, who attended Ummed Singh at the Methodist Hospital. Further, the point emerges as to whether the presence of prosecution witness of fact PW-1, PW-2 and PW-3 on the spot at the time of occurrence was natural or not? If all the three witnesses were present on the spot, then their testimony regarding the manner and style of the occurrence would not have varied substantially and contradicted each other in material particulars. Arrival of Man Singh as per testimony of Man Singh itself was at the stage when Ummed Singh had fallen down. PW-2 says that they were sitting on the cot at the time when the accused persons came on the spot. He also sponsors theory of blood oozing out from the person of injured which also stands falsified by the testimony of PW-5 the constable who noted down contents of check F.I.R. and also by the testimony of Dr. Brahma Dev PW-8 when he categorically stated that he did not find any blood on any injury. Next, the description of commencement of the occurrence given by these witnesses establishes that the assailants first caused lathi blows on the informant side and subsequently, shot was fired by Amar Singh at the exhortation of Hukum Singh. On this point, also both the prosecution witnesses are vacillating and are found to be improving on their testimony. Next, the description of commencement of the occurrence given by these witnesses establishes that the assailants first caused lathi blows on the informant side and subsequently, shot was fired by Amar Singh at the exhortation of Hukum Singh. On this point, also both the prosecution witnesses are vacillating and are found to be improving on their testimony. That way, their testimony is full of embellishments and this fact remains unexplained as to how medical examination of all the injured persons was conducted on 29.6.2004 between 12:25 p.m. to 12:45 p.m. at the District Hospital, whereas, the report was lodged on 28.6.2004 at 5:15 p.m. This particular aspect establishes articulated improvement by the witnesses. Even the arrest of the accused Amar Singh is not certified by independent public witness. Weapon seized from the accused Amar Singh was not sent for forensic examination by the Investigating Officer of Case Crime No. 220/2004 under Section 25 Arms Act and there are glaring contradictions inter se in the testimonial description of all the prosecution witnesses of fact qua their statement recorded under Section 161 Cr.P.C., as discussed above. We may sum up that the presence of the three witnesses of fact on the spot at the time of occurrence is highly doubtful and their testimony is full of improvements and sketchy and does not inspire confidence. We, after careful scanning of the testimony of prosecution witnesses of fact and the circumstances of the case come across fact that the manner and style of injury report of the injured of this case, the timing of medical examination of the injured persons, non-explanation of delay in conduction of medical examination from the time of the occurrence till examination, renders testimony of all the injured witnesses highly tutored, outcome of deliberation and full of embellishments. Similarly, there is no independent public witness to the fact of arrest of and recovery from accused- Amar Singh. The check F.I.R. pertaining to Case Crime No. 220/2004 is Exhibit Ka-20 and the concerned G.D. entry of date 29.6.2004 at 7:35 a.m. is Exhibit Ka-21. Constable Daya Ram Maurya PW-10 has stated in his cross-examination on page no. 71 of the paper book that the Investigating Officer of this case never took out the recovered article (country-made gun) from 'malkhana'. At this stage, we may take note of the testimony of the Investigating Officer S.I. Ram Pal Singh PW-11. Constable Daya Ram Maurya PW-10 has stated in his cross-examination on page no. 71 of the paper book that the Investigating Officer of this case never took out the recovered article (country-made gun) from 'malkhana'. At this stage, we may take note of the testimony of the Investigating Officer S.I. Ram Pal Singh PW-11. He says in his cross-examination that he did not send the recovered country-made gun for examination to the Ballistic Expert. He only obtained sanction for prosecution from the District Magistrate. Here, it can be easily concluded that the Investigating Officer did not see himself the weapon recovered because the weapon had already been sent for forensic examination and the person was none other than Investigating Officer of another Case Crime No. 219/2004 relating to the main offence of murder of Ummed Singh. The Investigating Officer (PW-11) supposed to have seen the country-made gun when sending the same for forensic examination but he failed for no plausible reason. PW-9 had ample opportunity to avail public witnesses prior to the arrest and recovery from Amar Singh but he miserably failed to avail public witness. He did not ask even names of the persons who were asked to be witness in the case. These anomalies would never be fair enough to convict any person of offence under Section 25 Arms Act but the trial court recorded finding of conviction under Section 25 Arms Act against accused- Amar Singh on unfounded whims and conjectures. Consequently, finding of conviction under Section 25 Arms Act against accused- Amar Singh at Case Crime No. 220/2004 also stands vitiated and the same is set aside by us. We, after discussing the various particular and relevant aspects of this case, are of the view that the trial court while appraising facts of the case and evaluating testimony of prosecution witnesses of fact failed to record lawful finding based on evidence on aforesaid particular aspects and it perhaps escaped its attention and the judgment, we may add, which does not contain judicious scrutiny and analysis of the various particular aspects on point of occurrence is tainted with narrowness. Fact of injury caused to the injured persons and their description of the incident, the finding recorded, will ipso facto fall within the periphery of speculations and surmises. Judgment based on guess work is no judgment in the eye of law. Fact of injury caused to the injured persons and their description of the incident, the finding recorded, will ipso facto fall within the periphery of speculations and surmises. Judgment based on guess work is no judgment in the eye of law. Consequently, the contention raised by the learned counsel for the appellants holds the ground firmly, as it has got force. The appeal is allowed and judgment and order of the trial court dated 22.3.2007 passed by the Additional Sessions Judge-1st, Mathura in Sessions Trial No. 1026 of 2004, arising out of case crime no. 219 of 2004, under the aforesaid section of Indian Penal Code, Police Station- Baldev, District- Mathura and Sessions Trial No. 1020 of 2004 arising out of case crime no. 220 of 2004, under section 25 Arms Act, Police Station Baldev, district Mathura are hereby set aside and the accused-appellants are exonerated of all charges. Appellants-Mahavir Singh, Nanak Chandra, Roshan Singh and Hukum Singh are on bail. They need not surrender in this case. Their personal bonds and bail bonds are cancelled and sureties are discharged. Appellant- Amar Singh is in jail. He will be released forthwith, if he is not wanted in connection with any other case. However, we direct that the appellants will ensure compliance of provisions of Section 437A Cr.P.C. by appearing before the concerned trial court at the earliest. Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.