JUDGMENT : Delivered by Hon'ble Alok Kumar Mukherjee, J. 1. The aforesaid appeals filed on behalf of the accused appellants under Section 374 (2) Cr.P.C. are directed against the judgment and orders dated 26.07.1982, passed by Sri M.G. Godbole, Sessions Judge, Aligarh, in Sessions Trial No. 329 of 1981 (State vs. Chandra Pal Singh and 4 others), whereby, they have been convicted under Sections 302/149, 323/149, 324/149 I.P.C. and punished with the sentence to undergo imprisonment for life, rigorous imprisonment for one month and two months respectively. The appellants Chandra Pal Singh and Pitamber have also been convicted under Section 147 I.P.C. and sentenced to undergo rigorous imprisonment of two months and rest of the appellants have been convicted under Section 148 I.P.C. and sentenced to undergo rigorous imprisonment for six months. 2. Heard Sri Anwar Hussain, learned counsel for the appellants, Sri Ajeet Ray, learned A.G.A. for the State respondent and perused the record. 3. Brief facts giving rise to the present appeals are that one Bahadur, resident of village Vistoli, Police Station Akrabad on 11.12.1978 at 09:15 P.M. gave a written report at Police Station Akrabad stating therein on 11.12.1978 at 04:45 P.M., he and his father Vijay Pal were coming from there house to their Gher (Nohra), at about 04:45 P.M. when they reached north east corner of the field of Mahendra, co-villagers Shyam armed with country made pistol, Gajendra Pal Singh armed with country made pistol, Chandra Pal armed with lathi, Shanker armed with ballam and Pitamber Singh armed with iron pitch fork (saki) ambushed them and on the exhortation of Chandra Pal, Shyam Pal shot his father on his chest. Gajendra Pal Singh also fired on his chest. Thereafter they were assaulted with spear, lathi and saki. On their shouts for help, Ram Prakash, Vijay Pal and Pratap with other villagers came there and saved them. He had old enmity with the accused persons who had beaten him and his father on 21.12.1972 but they were acquitted on 09.09.1978 and they were emboldened on their acquittal. 4. Thereafter they were assaulted with spear, lathi and saki. On their shouts for help, Ram Prakash, Vijay Pal and Pratap with other villagers came there and saved them. He had old enmity with the accused persons who had beaten him and his father on 21.12.1972 but they were acquitted on 09.09.1978 and they were emboldened on their acquittal. 4. At this check FIR was scribed and registered at Case Crime No. 323 of 1978, under Sections 147, 148, 149, 307, 323, 324, 302 I.P.C. and investigation was taken over by Sri Ravidutt Tyagi, the then Station Officer, who immediately proceeded with the investigation, recorded the statement of first informant, inspected the spot on the following morning, held the inquest proceedings, took samples of blood stained and simple earth, recovered one empty cartridge, prepared the recovery memo, site plan, searched for the accused and after investigation submitted charge sheet. 5. The appellants stood for trial before the Court of Session. They were charged, tried, convicted and sentenced as above. 6. Feeling aggrieved, these two appeals have been preferred and both are directed against the same judgment and orders, hence, they are being disposed off by common order. 7. On behalf of appellants, in support of appeals, it has been submitted that prosecution has failed to prove motive. It has further been submitted that evidence has not been properly appreciated. Plea of alibi has been disbelieved on the basis of conjectures and surmises, conduct of first informant is unnatural, FIR has been ante-timed, medical evidence does not support the prosecution version. 8. In support of these arguments, on behalf of the appellants, the following cases have been referred:- (A). Bijoy Singh and Another vs. State of Bihar, (2002) 9 SCC 1949, (Paragraph Nos. 7 and 8). (B). T.T. Antony vs. State of Kerala and Others, 2001 (6) SCC 181 , (Paragraph No. 17). (C). Budh Singh vs. State of Uttar Pradesh, 2006 (9) SCC 731 , (Paragraph Nos. 15, 16, 17, 24 and 25). (D). Arjun Marik vs. State of Bihar, 1992 (Supplement Vol. 2) SCC 372, (Paragraph Nos. 25 and 26). (E). Subhash vs. State of Uttar Pradesh, (1976) 3 SCC 629 , (Paragraph No. 8). (F). State of Madhya Pradesh vs. Kriparam, (2003) 12 SCC 675, (Paragraph No. 4). (G). Shubehndu Nath Tewary vs. State of Bihar, 2007 (1) BLJR 20 , (Paragraph Nos. 24 and 25). (H). 2) SCC 372, (Paragraph Nos. 25 and 26). (E). Subhash vs. State of Uttar Pradesh, (1976) 3 SCC 629 , (Paragraph No. 8). (F). State of Madhya Pradesh vs. Kriparam, (2003) 12 SCC 675, (Paragraph No. 4). (G). Shubehndu Nath Tewary vs. State of Bihar, 2007 (1) BLJR 20 , (Paragraph Nos. 24 and 25). (H). State of Madhya Pradesh vs. Mishri Lal, 2003 AIR (SC) 4089, (Paragraph No. 14). (I). Mohinder Singh vs. State, 1953 AIR SC 415, (Paragraph No. 10). (J). Surajit Sarkar vs. State of West Bengal, (2013) 2 SCC 146 , (Paragraph Nos. 49 and 50). (K). Varkey Josep vs. State of Kerala, 1993 (Supplementary Vol. 3) SCC 745, (Paragraph No. 11). (L). Bhudeo Mandal vs. State of Bihar, 1981 (2) SCC 755 , (Paragraph Nos. 1 and 2). (M). Asraf Ali vs. State of Assam, (2008) 16 SCC 328 , (Paragraph Nos. 22 to 26). (N). Din Dayal vs. Raj Kumar, 1998 SCC (Cri) 892, (Paragraph No. 4). (O). Lala Ram and others vs. State of U.P., (1990) 2 SCC 113 , (Paragraph No. 8). (P). Nanak Chand vs. State of Punjab, 1955 AIR 272, (Paragraph No. 14). (Q). Suraj Pal vs. State of Uttar Pradesh, 1955 AIR 419, (Paragraph No. 4). (R). Willie (William) Slaney vs. State of Madhya Pradesh, 1956 AIR (SC) 116, (Paragraph Nos. 51, 52, 53, 54, 62, 88, 97, 98 and 99). 9. On behalf of the State, these arguments have been repelled and it has been submitted that findings recorded by the learned Sessions Judge are well substantiated from the record, cogent reasons have been assigned to believe the prosecution evidence. The appeals are without substance and deserve to be dismissed. 10. Before entering into the merits of the appeals, we would like to recall the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni Vs. State of Gujarat [1995 Supreme Court Cases (Crl) 222] whereby duties of the appellate court have been outlined. Para-4 of the judgment reads as under: "4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Para-4 of the judgment reads as under: "4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained." 11. In the case of Lal Mandi, Appellant v. State of West Bengal, Respondent [1995 CRI.L.J.2659 (Supreme Court), 2659], the Apex Court in para-5 of the report has given the caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, extracted below: "5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh's case, which was an appeal against acquittal, have been misunderstood and mechanically applied. The observation made in Tota Singh's case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence." 12. In order to appreciate and consider the arguments advanced by counsel for both the parties, we would like to place on record the evidence for the parties in brief. 13. Bahadur Singh, PW-1 is an injured witness. He is first informant and son of the deceased. He has reiterated the prosecution version contained in the first information report and proved the written report Exhibit Ka-1. 14. Pratap PW-2 is resident of village Sikandarpur. He has supported the prosecution version and gave reason for his presence at the spot. 15. Vijay Pal Singh PW-3 has denied that he saw the incident, he has been declared hostile. 16. Constable Babu Lal, PW-4 is the bearer of the dead body from the spot to mortuary. He has deposed that the dead body was safely carried to mortuary. 17. Dr. Pramod Goel, PW-5 is the Medical Officer, who at 11:10 P.M. on 11.12.1978, medically examined Bahadur. He has proved the injury report as Exhibit Ka-2 and opined that these injuries could have been sustained on that day at 05:00 P.M. In Exhibit Ka-2, he has recorded the following injuries:- "1. 17. Dr. Pramod Goel, PW-5 is the Medical Officer, who at 11:10 P.M. on 11.12.1978, medically examined Bahadur. He has proved the injury report as Exhibit Ka-2 and opined that these injuries could have been sustained on that day at 05:00 P.M. In Exhibit Ka-2, he has recorded the following injuries:- "1. incised wound on the dorsal surface of first phalangs of ring finger of right hand. Vertically oblique bleeding margins are sharp and clean cut. 3 cm. X 1 cm. X bone deep, 9 cm. Below right wrist joint. 2. Lacerated wound on the dorsal surface of middle phalangs of ring finger of right hand centrally placed bleeding. 0.5 cm. X 0.5 cm. X muscel deep, 13 cm. Below right wrist joint. 3. L/W on the dorsal surface of center of middle. Bleeding of middle finger of right hand, 1 cm. X 0.5 cm., 14 cm. Below right writs joint. 4. L/W on the dorsal surface of middle phalangs of ndex finger of right hand, 1.5 cm. X 0.5 cm. X skin deep, 15 cm. Below right wrist joint. 5. Swelling on the outer side of lower 3rd of left forearm 8 cm. X 1.5 cm., 2 cm. Above left wrist joint. " 18. S.I. Ravi Dutt Tyagi PW-6 is the Investigating Officer, who gave details of steps taken during the course of investigation. He has proved check FIR, Exhibit Ka-3, copy of the report of the general diary Exhibit Ka-4, inquest report and other accompanying papers Exhibits Ka-5 to Ka-8. The memo of blood stained and simple earth as Exhibit Ka-9, other memo as Exhibit Ka-10. He has identified samples of blood stained and simple earth. Empty cartridge recovered from the spot, bed sheet, clothes of injured are material Exhibits 1 to 11. He has proved the site plan as Exhibit Ka-12, search memo as Exhibits Ka-13 and Ka-14, attachment memo as Exhibit Ka-15 and charge sheet as Exhibit Ka-16. 19. Dr. Brij Narayan Gupta PW-7 is the Medical Officer, who on 12.12.1978 at 03:00 P.M. performed the autopsy of deceased Vijay Pal. He has proved the postmortem report as Exhibit Ka-19 and opined the ante-mortem injuries caused by gun and lathi on the stated date and time. 20. From the dead body, he has recovered 15 pellets and two wadding. In the postmortem report, he has recorded the following ante-mortem injuries:- "1. He has proved the postmortem report as Exhibit Ka-19 and opined the ante-mortem injuries caused by gun and lathi on the stated date and time. 20. From the dead body, he has recovered 15 pellets and two wadding. In the postmortem report, he has recorded the following ante-mortem injuries:- "1. Gunshot would 1" X 3/4" X chest cavity deep on the left side of chest. 3½ " down the left nipple and 1½ outer to midline, inverted margins 2/10" X 2/10" X cavity deep around the above wound in an area of 3½" X 3½" wound of entry. Blackening or charring of the skin and singeing of the adjacent hair is not present. 2. Abrasion 1" X 1.2" on left side of chest, 1" outer to injury no. 1. 3. Five gunshot would 4/10" X 4/10" X chest cavity deep each on the left side of chest in the upper third in an area of 2½" X 2" just near the left clavicle and just near the mid line. Inverted margins of all wounds, wound of entry blackening or charring of the skin and singeing of the adjacent hair is not present. 4. Two gunshot wounds enverted margins 4/10" X 4/10" X chest cavity deep, 2" apart from each other. Vertical direction on the left side of chest in the post auxiliary line 5½" down the left axilla, wound of exit. 5. Abrasion 1" X 1/2" on the outer aspect of left shoulder joint. 6. Abrasion 1" X 1/2" on the top of left shoulder joint. 7. Abrasion 3/4" X 1/2" on the front of left shoulder joint. 8. Abrasion 1" X 1/2" on the left upper arm outer aspect 4½" down the top of left shoulder joint. 9. Abrasion 1/2" X 1/4" on the outer aspect of left (sic). 10. Abrasion 1" X 1/4" on the back of left elbow joint. 11. Lacerated would 3" X 1/4" X bone deep on the left side of scalp, 3½" above the left ear. 12. Lacerated wound 2" X 1/2" X bone deep, 2" above the left ear. 13. Lacerated would 1/2" X 1/4" X bone deep on the left eye brow outer and 14. Lacerated would 2" X 1/4" X bone dep on the occipital region." 21. 12. Lacerated wound 2" X 1/2" X bone deep, 2" above the left ear. 13. Lacerated would 1/2" X 1/4" X bone deep on the left eye brow outer and 14. Lacerated would 2" X 1/4" X bone dep on the occipital region." 21. During internal examination, he has found the following injuries:- "The internal examination disclosed that the pleura was torn in the middle line a "chalni" (strainer). The left lung was torn in the middle. Thirty shots were recovered. 4 oz. Of undigested food was found in the stomach. Small intestines contained some digested food and the big ones contained fecal matter." 22. After conclusion of prosecution evidence, statements of the appellants were recorded. They have denied the correctness of the facts stated by the prosecution witnesses. They claimed false prosecution on account of enmity, pleaded ignorance about the medical evidence. Appellant Shyam Pal Singh also stated that on the relevant date and time he was at Soron, District Etah and on that day he had detected one case of tobacco at 04:00 P.M. 23. In the defence one witness Rajendra Prasad Mishra DW-1 has been examined, who has deposed that on 11.12.1978 at 04:00 P.M. Shyam Pal Singh and his Senior Inspector, Police Station Rana caught tobacco, prepared its recovery memo and proved the recovery memo as Exhibit Kha-1. 24. First, we would like to discuss the medical evidence which consists of statement of Dr. Pramod Goel, PW-5 and injury report of Bahadur Singh as Exhibit Ka-2 and further statement of Dr. Brij Narayan Gupta, PW-7 and postmortem report Exhibit Ka-19. 25. Dr. Pramod Goel is an official witness. He has been only cross examined about duration of the injuries and nature of the weapon used to cause death. Thus, the defence did not challenge the time of the medical examination that the witness was found by the doctor having injuries as written in Exhibit Ka-2 on his person. In reference to duration, the answer given by the witness is plausible that wound was bleeding for that reason he opined it to be half day old with variation of six hours on either side. Since his testimony is uncontroverted, we find him to be a trustworthy witness and hold on the basis of his statement as Exhibit Ka-2 that on 11.12.1978 at 11:10 P.M., Bahadur Singh was medically examined and on his person there were five injuries. Since his testimony is uncontroverted, we find him to be a trustworthy witness and hold on the basis of his statement as Exhibit Ka-2 that on 11.12.1978 at 11:10 P.M., Bahadur Singh was medically examined and on his person there were five injuries. Injury no. 1 was caused by sharp edged object and rest by blunt object and they were simple in nature. 26. Dr. Brij Narayan Gupta, PW-7 has been cross-examined about time when ante-mrtem injuries could have been sustained. He was not given suggestion that he did not conduct postmortem examination of the dead body of Vijay Pal Singh or he entered fictitiously, the ante-mortem injuries recorded by him in the postmortem report Exhibit Ka-19. In this way, this witness also is a reliable witness and his testimony is corroborated by Exhibit Ka-19. On the basis of his statement and Exhibit Ka-19 we hold that on the stated date and time, the deceased sustained the ante-mortem injuries recorded in Exhibit Ka-19. As a result thereof he died due to shock and hemorrhage. His death could have occurred on the stated date and time. 27. Now the question is whether the deceased had been murdered in the manner claimed by the prosecution and injured sustained injuries in that assault or appellants have been falsely implicated. 28. Vijay Pal Singh PW-3 has not supported the prosecution version. He was cross-examined by Public Prosecutor. He has denied giving statement to the Investigating Officer, therefore, we are inclined to believe that he has been won over by the prosecution and his testimony is liable to be ignored. 29. Bahadur Singh PW-1 is an injured witness. His presence at the spot is natural and probable. Though, it was winter but at 04:45 P.M. there remains sufficient light to see the already known assailants, therefore, he had full opportunity to see the occurrence and identify the known assailants. He was subjected to cross-examination. Nothing adverse could be extracted to diminish the veracity of his testimony. We do not think that previous enmity is enough to discredit the testimony especially when in spite of cross-examination, his testimony remains unshaken, therefore, we hold him to be a trustworthy witness. 30. He was subjected to cross-examination. Nothing adverse could be extracted to diminish the veracity of his testimony. We do not think that previous enmity is enough to discredit the testimony especially when in spite of cross-examination, his testimony remains unshaken, therefore, we hold him to be a trustworthy witness. 30. Pratap PW-2 is the other eye witness, his testimony on behalf of the appellants has been impeached on the ground that he was resident of another village but we find that he has given reason for his presence there. According to him, he was in the profession of cattle trade and he visited village Vistauli in connection with purchase of cattle, and was sitting at the Chabutra of Vijay Pal Singh from where, the place of occurrence was visible. Thus, we hold that witness was present at the place where he claims himself to be. He saw the occurrence. He has withstood the test of cross-examination successfully. He had no reason to depose falsely against the present appellants. We believe that his evidence is fully trustworthy. 31. One other witness is the Investigating Officer. His evidence is of formal in nature. Neither it supports the prosecution version nor it supports the defence version. 32. After going through the impugned judgment, we find that the learned Sessions Judge has also placed reliance on the evidence of two witnesses of fact and gave reasons for doing so. In view of the discussions made herein above, we do not find any substance in the arguments advanced on behalf of the appellants that evidence has not been appreciated properly. This argument is rejected. 33. So far as the alleged unnatural conduct of Bahadur Singh PW-1 is concerned, each person reacts in his own ways. Others cannot judge that conduct of the witness to be unnatural. On behalf of the appellants, it has been argued that before proceeding to the police station, he had brought the cot and laid the dead body on the cot. There is nothing unnatural in this act, he might have felt bad about leaving dead body of his father lying on the rasta that too in the dirt. 34. The Hon'ble Apex Court in the case of Rammi @ Rameshwar etc. vs. State of Madhya Pradesh, AIR 1999 SC 3544 , has held that the post event conduct of a witness varies from person to person. 34. The Hon'ble Apex Court in the case of Rammi @ Rameshwar etc. vs. State of Madhya Pradesh, AIR 1999 SC 3544 , has held that the post event conduct of a witness varies from person to person. In view of above, we do not think Bahadur Singh has reached in an unnatural manner and his testimony should be discarded on that score. 35. Next argument is that the first information report was ante timed. This argument does not find support from the record. Bahadur Singh was promptly examined. At that time, he was bleeding. He was brought by Constable Mangal Sen to PAC. The other circumstance, excluding possibility of ante timing of first information report, is that there is no interpolation on the date and time of lodging of first information report in police station. It is difficult, merely on the statement of Dr. Brij Narayan Gupta, PW-7 that he received the dead body first and police papers three hours thereafter, to hold that first information report was ante timed. We believe that in the light of the facts of this case, the first information report was promptly lodged. 36. The last argument relates to distance from which the deceased was shot. On behalf of the appellants it has been argued that blackening and charring of the skin and singeing of the adjacent hair were present that leads to conclude that firing was from close range and from such firing dispersal area could not be noted by the doctor but this question was not put to Dr. Brij Narayan Gupta PW-7, therefore, we do not think this point needs to be discussed at length. Suffice is to say that ocular version of the occurrence has to be trusted. The country made pistol and hand filled cartridge are unpredictable and on the basis of textbooks of ballistic experts, no inference could be drawn from them. 37. In reference to medical evidence and ocular version of the occurrence attention of the Court has been drawn that according to the doctor, deceased must have eaten his food one hour before he was shot dead. Therefore, his death must have after he had dinner. The deceased was an aged man. The learned Sessions Judge has noted that digestive process varies from person to person, hence, the learned Sessions Judge opined that semi digested foods does not show that occurrence had not taken place. Therefore, his death must have after he had dinner. The deceased was an aged man. The learned Sessions Judge has noted that digestive process varies from person to person, hence, the learned Sessions Judge opined that semi digested foods does not show that occurrence had not taken place. 38. The medical evidence consisting of opinion part, plays a secondary role to the ocular version of the occurrence. In the present case, ocular version of the occurrence is trustworthy. Medical opinion about digestive process is mere opinion and defence had not asked when the deceased had taken his last food, thus, it bears no significance. In this reference, we would like to make reference to the case of Anil Rai vs. State of Bihar, AIR 2001 SC 3173 , in this case, the Hon'ble Apex Court has held that if a direct evidence is satisfactory and reliable, on the basis of medical evidence, such evidence cannot be discarded. 39. Now we propose to discuss the cases referred on behalf of the appellants. 40. This is a case of direct evidence. Motive in such cases does not play any part. Though prosecution has alleged a motive and it has been reiterated by Bahadur Singh PW-1 which the defence during cross examination could not demolish but we do not think that existence of motive or its non existence has any significance in the present matter, therefore, arguments advanced in this reference does not strengthen the case of defence before us. 41. In the case of Bijoy Singh (supra) reliance has been placed on paragraph nos. 7 and 8 of the report. Prompt medical examination of the injured makes the possibility of ante timing of first information report negligible, hence, the referred case does not help the case of the appellants. 42. Reliance has been placed on para 17 of T.T. Antony's case (supra) for the reasons indicated above, this case also cannot help the appellants and for the same reason we find that principle laid down in Budh Singh's case (supra) is not applicable here. The same may be said about Arjun Marik's case (supra). 43. In Sunbash's case (supra) reliance has been placed on the point of inconsistency between the medical evidence and the firearm injury. In view of the case referred by us this case need not detain us any longer. 44. The same may be said about Arjun Marik's case (supra). 43. In Sunbash's case (supra) reliance has been placed on the point of inconsistency between the medical evidence and the firearm injury. In view of the case referred by us this case need not detain us any longer. 44. In Shubhendu Nath Tewary's case (supra) case deals with ante timing of first information report in case inquest report is reasonably delayed. In the present case, it has reached to the mortuary in three hours after the dead body was received there. Challan lash, diagram of dead body and other papers were prepared after the inquest report had been prepared. Police needs some time to complete the paper work. Three hours delay is not unreasonable for that reason Shubhendu Nath Tiwary's case is distinguishable from the present case. 45. Mishri Lal's case (supra) has been relied upon on the point that failure of Bahadur singh to save his father makes the prosecution story unreliable. We have seen that Bahadur Singh had tried to save his father, therefore, principle laid down in Mishri Lal's case is not applicable in the present case. 46. Reliance has been place at para 10 of Mohinder Singh's case (supra). In this case, the Hon'ble Apex Court has emphasized the need of evidence of duly qualified expert about nature of weapon used in the crime but in the present case facts are different because country made pistol were used and law of ballistics deals with standard weapons only. 47. Next reliance has been placed on paras 49 and 50 of Surajit Sarkar's case (supra). This relates to effect of defective investigation. The principle laid down in this case rather supports the prosecution version. We think, it would be gainful to reproduce here para 49 of the report which is as under:- "We are not prepared to accept as a broad proposition of law that in no case can defective or shoddy investigations lead to an acquittal. It would eventually depend on the defects pointed out. If the investigation results in the real culprit of an offence not being identified, then acquittal of the accused must follow. It would not be permissible to ignore the defects in an investigation and hold an innocent person guilty of an offence which he has not committed. It would eventually depend on the defects pointed out. If the investigation results in the real culprit of an offence not being identified, then acquittal of the accused must follow. It would not be permissible to ignore the defects in an investigation and hold an innocent person guilty of an offence which he has not committed. The investigation must be precise and focused and must lead to the inevitable conclusion that the accused has committed the crime. If the investigating officer leaves glaring loopholes in the investigation, the defence would be fully entitled to exploit the lacunae. In such a situation, it would not be correct for the prosecution to argue that the Court should gloss over the gaps and find the accused person guilty. If this were permitted in law, the prosecution could have an innocent person put behind bars on trumped up charges. Clearly, this is impermissible and this is not what this Court has said." 48. Reliance has been placed on para 11 of Varkey Josep's case (supra). Para 11 deals with leading question. Evidently the case has been referred without going through the ratio of the case and facts of this case. Principle laid down in the case is not applicable in the present case. 49. Bhudeo Mandal's case (supra) has been referred in reference to Section 149 I.P.C. In this case, the Hon'ble Apex Court has observed that assembly of five or more persons having a common object must do something of that object. In the present case, five assailants had hidden themselves to ambush the deceased and the injured. They were armed and they succeeded in murdering the deceased. There is unity of place time and action which reflect, all were sharing the common object and did something in prosecution of that object. Thus, the principle of law referred by the learned counsel for the appellants is more in favour of the respondent. 50. Asraf Ali's case (supra) has been referred on the point of defective statement recorded under Section 313 Cr.P.C. If the appellants had any grievance with their examination, they could have pointed it out to the court below at the time of arguments but they did not do so. We have carefully gone through the statements of the appellants recorded under Section 313 Cr.P.C. They are quite exhaustive. We have carefully gone through the statements of the appellants recorded under Section 313 Cr.P.C. They are quite exhaustive. Nothing has been left which was used by the learned Sessions Judge to convict them. Therefore, by saying defective examination, the appellants cannot get their conviction and sentences set aside because they have not been prejudiced in any manner. Procedural law is meant for advancement of justice. Without any prejudice infraction of procedural law would confer no benefit to the loosing party. 51. Principle laid down in Din Dayal's case (supra) is also not applicable in the present matter. The facts are different and controversy involved in that case is quite different from the present case. 52. In Lala Ram and others' case (supra), reliance has been placed on para 8. In the present case we have seen time of occurrence is not doubtful. Ocular version is absolutely trustworthy and the appellants cannot get any help. 53. In Nanak Chand's case (supra), reliance has been placed on para 14 of the judgment as discussed herein before, the principle laid down in the case is not applicable here. 54. In the present matter, the manner of assault has its own significance, facts constituting the occurrence are proved beyond reasonable doubt by the prosecution by trust worthy credible evidence, the factual situation is quite different from the facts where on the Suraj Pal's case (supra) decided due to this distinction principle laid down in para 4 of the case referred on behalf of the appellants will not be applicable here. 55. In Willie (William) Slaney's case (supra), reliance has been placed during argument. This case was not referred at length. It relates to constructive criminal liability of one person for the act of another person. 56. In the present case ocular version proves that all the appellants were sharing common object of the unlawful assembly and in prosecution thereof they murdered the deceased and caused injury to the first informant. Thus, we find they formed an unlawful assembly and shared common object and in prosecution of that common object, they murdered Vijay Pal. 57. In view of above, the arguments advanced in support of the appeal are without substance. Appeals are bereft of merit and liable to be dismissed. 58. Accordingly the appeals are dismissed. 59. The appellants are on bail. 57. In view of above, the arguments advanced in support of the appeal are without substance. Appeals are bereft of merit and liable to be dismissed. 58. Accordingly the appeals are dismissed. 59. The appellants are on bail. They shall surrender before the Sessions Judge, Aligarh and serve out their sentences. If they fail to do so, the Session Judge shall procure their attendance by issuing coercive process against them. 60. Office is directed to communicate this decision to the court below forthwith for compliance and to send back the lower court record.