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2017 DIGILAW 189 (ALL)

AMRIK SINGH v. STATE OF U. P.

2017-01-13

ALOK KUMAR MUKHERJEE, BHARAT BHUSHAN

body2017
JUDGMENT : (Delivered by Hon'ble Alok Kumar Mukherjee, J.) 1- This appeal has been preferred against the judgment and order dated 22.3.1983, passed by the Additional Sessions Judge, Meerut in S.T. No.78 of 1979 (State Vs. Amrik Singh and another) arising out of Crime No. 83 of 1978, P.S. Parikshatgarh, District Meerut, convicting and sentencing the appellants Amrik Singh and Har Kirat Singh on both the counts under Section 302 IPC and Section 302 read with Section 34 IPC to undergo imprisonment for life. 2- The appellants Amrik Singh and Har Kirat Singh have filed this appeal against the aforementioned judgment and order dated 22.3.1983 on the ground that the learned trial court below has erred in believing the prosecution case and the evidence examined in support thereof and that the conviction of the appellant is against the weight of evidence on record. 3- Brief facts of the prosecution case are that on 1.4.1978 at about 11:00 P.M. informant PW-1 Gurnam Singh S/O Preetam Singh gave a written report at police station Parikshitgarh, Sub District Mawana, District Meerut, stating therein that his aunt Ramdeyi Ran Singh had three daghters who were living in their marital homes, hence the informant and his brother Sant Singh took care of their aunt. One daughter of Ramdeyi, Nepal Kaur transferred some land of Ramdeyi to her son Rajinder's name. Around one and half years ago from the date of filing the FIR, Ramdeyi willed her land to the son of informant Gurnam Singh and willed 2 bigha pucca land to PW- 1 Gurnam Singh. On 13 February 1978 Rajinder who was the son of Nepal Kaur transferred his share of land to Amreek Singh, Udham Singh and Har Kirat Singh. Due to this, the informant and his brother entered into a legal dispute with the aforementioned people. The date of the same case was fixed on 31.3.1978 in Mawana and on 1.4.1978 the case was put up in Meerut Civil Court. The informant's brother Sant Singh went to attend the court for the same. On the day of the alleged incident at around 9:00 PM the informant and his brother Sant Singh went to the Kohloo (Jaggery crusher) of Harpal Singh to process their jaggery. Jahariya and his son Jagram and PW-2 Ramesh worked on the same Kolhu. The informant's brother Sant Singh went to attend the court for the same. On the day of the alleged incident at around 9:00 PM the informant and his brother Sant Singh went to the Kohloo (Jaggery crusher) of Harpal Singh to process their jaggery. Jahariya and his son Jagram and PW-2 Ramesh worked on the same Kolhu. There was a gas lantern in the kolhu and while the informant was talking to Harpal Singh the kohloo owner, Amreek Singh and his brother Har Kirat Singh came with their guns and started abusing the informant and his brother saying "Aaj inhe mukadmey baazi ka maza chakhate hai" (Today we will teach them a lesson for resorting to litigation). Amrik Singh and Har Kirat Singh fired many shots at Sant Singh the brother of the informant which hit Sant Singh and Jagram the labourer at kolhu. Ramesh also suffered injury on head in the process of saving his brother Jagram. Sant Singh died on the spot due to firearm injuries. The FIR futher states that Harpal Singh, Valuvaan Singh, Raj Singh, Rai Singh and several others witnessed the incident. When these people exhorted, the assailants, Amrik Singh and Har Kirat Singh ran away firing gunshots. 4- Subsequently an FIR was registered as case Crime No.83 of 1978 under section 302 IPC, which was entered into the General Diary. Investigation was entrusted to the then Circle Officer. After concluding the investigation charge-sheet was submitted by him against the accused persons. After procuring the attendance of the present appellants, the case was committed to the Court of Session, where they were charged under Section 302 IPC. The accused-appellants denied the charge and pleaded not guilty. They further stated that they had been falsely implicated in this case due to enmity and claimed to be tried. 5- In order to prove the charge, besides other papers, prosecution has filed written report (Ext. Ka-1), Postmortem report of Sant Singh (Ext.Ka-2), Postmortem report of Jagram (Ext. Ka-3), Injury report of Jagram (Ext.Ka-4), Injury report of Ramesh (Ext.Ka-5), chik report dated 11.8.1981 (Ext. Ka-6), Copy of the General Diary (Ext.Ka-7), X-ray plate (Ext.Ka-8), X-ray plate (Ext.Ka-9), Report of the Radiologist dated 2.4.1978 (Ext.Ka-10), Report of the Radiologist dated 3.4.1978 (Ext. Ka-11), Extract from the register of dying declaration (Ext.Ka-12), Panchayatnama (Ext. Ka-3), Injury report of Jagram (Ext.Ka-4), Injury report of Ramesh (Ext.Ka-5), chik report dated 11.8.1981 (Ext. Ka-6), Copy of the General Diary (Ext.Ka-7), X-ray plate (Ext.Ka-8), X-ray plate (Ext.Ka-9), Report of the Radiologist dated 2.4.1978 (Ext.Ka-10), Report of the Radiologist dated 3.4.1978 (Ext. Ka-11), Extract from the register of dying declaration (Ext.Ka-12), Panchayatnama (Ext. Ka-13), Diagram of lash (Ext.Ka-14), Challan lash (Ext.Ka-15), Extract/copy of the statement of Jagram u/s 161 Cr.P.C. (Ext.Ka-16), Panchayatnama of Sant Singh (Ext.Ka-17), Diagram lash of Sant Singh (Ext.Ka-18), Challan lash of Sant Singh (Ext.Ka-19), Site plan (Ext.Ka-20), Recovery memo of blood-stained earth and plain earth (Ext.Ka-21), Recovery memo about the 'chaap' Gun (Ext.Ka-22), Recovery memo of empty cartridges (Ext.Ka-23), Recovery memo of the gas lantern (Ext.Ka-24), Charge sheet (Ext.Ka-25), Copy of the dying declaration of Jagram (Ext.Ka-26), Extract of statement of Har Pal Singh (Ext.Ka-27), Leaf of the case diary relating to the statement of Jagram (Ext.Ka-28), Report of the Chemical Examiner (Ext.Ka-29), Copy of the plaint in suit No.378/1978 (Rajendra Singh Vs. Gurnam Singh) (Ext.Ka-30), Copy of the judgment of S.D.M. Mawana dated 12.5.1978 (Ext.Ka-31), Copy of the judgment of S.D.M. Mawana dated 30.6.1979 (Ext.Ka-32), Copy of the Sale-deed dated 3.12.1976 executed by Smt. Rajdei in favour of Gurnam Singh regarding land (Ext.Ka-33), Copy of the order dated 4.10.1979 of the S.D.M., Mawana (Ext.Ka-34), Copy of the Vakalatnama (Ext.Ka-35), Copy of the will (Ext.Ka-36), Copy of the Sale-deed dated 13.2.1978 executed by Rajendra Singh in favour of Amrik Singh and Har Kirat Singh in respect of the land (Ext.Ka-37) on record. 6- Prosecution also examined P.W.-1 complainant Gurnam Singh, P.W.-2 Ramesh, P.W.-3 Rai Singh, P.W.-4 Constable C-39 CP Gajender Singh, P.W.-5 Birbal Singh, Arms Clerk Collectorate Meerut, P.W.-6 Dr. M.P. Agarwal, P.W.-7 Dr. S.K. Jindal, P.W.-8 S. I. Somveer Singh, P.W.-9 Dr. A.S. Mathur, Radiologist, Medical College, Meerut P.W.-10 Harpal Singh, P.W.-11 Gambhir Singh, Ahalmad, Court of C.J.M, Meerut P.W.-12 Constable C/1156 Manvir Singh, P.W.-13 S.I. Khyali Ram Bhati, P.W.-14 Head Constable Jagpal Singh and P.W.-15 Raham Singh during oral evidence. 7- Statements of accused-appellants under section 313 Cr.P.C. were recorded after closing of the prosecution evidence. In support of defence the accused examined DW-1 Ishwar Dayal Tyagi, Advocate and in order to prove that the informant had been taking self-contradictory plea in the litigation. In support of the defence the accused have filed certain documentary evidence. 7- Statements of accused-appellants under section 313 Cr.P.C. were recorded after closing of the prosecution evidence. In support of defence the accused examined DW-1 Ishwar Dayal Tyagi, Advocate and in order to prove that the informant had been taking self-contradictory plea in the litigation. In support of the defence the accused have filed certain documentary evidence. The accused also filed a Photostat copy of the check report dated 18.12.1976 which was lodged by son-in-law of Smt. Ramdeyi against complainant Gurnam Singh at the Police Station of Babugarh. As this report was not duly proved, it was marked as material Ext.-VII. Documentary evidence was also filed on their behalf. Ext.Kha-1 is an extract from the statement of PW-3 Rai Singh as was recorded by the investigating officer u/s 161 Cr.P.C., Ext.Kha-2, the Photostat copy of the adoption-deed executed by Smt. Ramdeyi for adopting Rajendra Singh as her adopted son, Ext.Kha-3, the certified copy of the order of Addl. Commissioner, Meerut dated 17.3.1980, Ext.Kha-5, the Photostat copy of the certified copy of the sale-deed dated 13.2.1978 executed by Rajendra Singh in favour of the accused, Ext.Kha-6 certified copy of the application moved by Rajendra Singh for mutation of his own name after the death of Smt. Ramdeyi on her property, Ext.Kha-7 the certified copy of the order of Tehsildar Mawana dated 3.3.1978, Ext. Kha-8 the certified copy of the order of the Naib Tehsildar of Mawana dated 7.4.1978, Ext. Kha-9 the copy of the order dated 17.3.1980, Ext. Kha-10 the affidavit of Ishwar Dayal Tyagi, Advocate dated 11.8.1982, Ext. Kha-11 copy of the written statement in suit no. 76 of 1977 (Rajendra Singh Vs. Gurnam Singh), Ext. Kha-12 is the copy of the written statement on behalf of defendant in suit no.378 of 1978, Ext. Kha-13 is the Photostat copy of the mutation, Ext. Kha-14 is the copy of the order dated 13.3.1982 of the S.D.O., Mawana, in proceedings under Section 145 Cr.P.C. and Ext. Kha-15 is the certificate issued by M/s Hari Singh Jagdish Singh Arms Dealers in relation of D.B.B.L. Gun no. 60243 sold to the accused Amrik Singh. 8- After hearing the arguments of the parties the learned trial Judge by the impugned judgment and orders convicted the appellants and sentenced them as above. Kha-15 is the certificate issued by M/s Hari Singh Jagdish Singh Arms Dealers in relation of D.B.B.L. Gun no. 60243 sold to the accused Amrik Singh. 8- After hearing the arguments of the parties the learned trial Judge by the impugned judgment and orders convicted the appellants and sentenced them as above. Being aggrieved by the aforesaid judgment and order of the trial court, this appeal has been preferred by the appellants Amrik Singh and Har Kirat Singh. 9- We have heard Sri Brijesh Sahai, learned counsel for the appellants and Sri Syed Ali Murtaza, learned A.G.A. for the State and carefully perused the evidence on record. 10- It has been argued on behalf of the appellants that the prosecution has utterly failed to prove the alleged motive, the prosecution story as well as the charge framed against the appellants-accused, beyond reasonable doubt. The prosecution has also failed to examine independent witnesses, whose presence was natural at the scene of the crime and instead examined interested as well as inimical witnesses, whose presence at the site of the crime was wholly doubtful, unnatural and improbable and as such they are not worthy of reliance. 11- Counsel for the appellant submitted that Panchayatnama was not drawn on immediately after arrival of the investigating officer at the spot though there was sufficient light of gas lantern at the place of occurrence. No reason has been given for getting the Panchayatnama written by any other Sub Inspector and not by the investigating officer himself. There was no First Information Report and as such the preparation of Inquest Report was delayed; if there was a First Information Report, then the Crime number should have been written in the inquest report. 12- He further submitted the alleged Dying Declaration of Jagram has not been proved by the prosecution and as such it cannot be acted upon at all. Ramesh Singh having alleged superficial, manufactured injury is a witness of convenience, he is related to the deceased and is son of Zahariya who was the own man of Gurnam Singh, therefore, he could go to any extent to implicate the accused person at the behest of Gurnam Singh. He further submitted that Jagram Singh could not have received the injuries in the manner deposed by the prosecution witnesses. He further submitted that Jagram Singh could not have received the injuries in the manner deposed by the prosecution witnesses. 13- The further submission of the Counsel for the appellants is that the investigation of the case is tainted. The investigating officer Khyali Ram Bhati, PW-13 has prepared false documents and created false evidence against the appellants. 14- It has also been contended that there is material inconsistency between the ocular and the medical evidence; the entire investigation in the case is faulty as well as against the rules and procedure prescribed by law. Prosecution has failed to prove as to what prompted the accused persons to commit this murder. Counsel for appellants has wondered that under what circumstances only all the related eyewitnesses were present at the same date, time and place to see this incident of murder. He has submitted that the entire prosecution story is concocted and presence of the eyewitnesses, as mentioned above, is highly doubtful, improbable and unnatural, therefore, the appellants-accused are entitled to get benefit of doubt. 15- Refuting all the arguments advanced by the side of the appellants, Sri Syed Ali Murtaza, learned A.G.A. has submitted that the loss of original impugned dying declaration of deceased Jag Ram has been proved by cogent evidence and while proving the said dying declaration by the I.O. (P.W.-13) the secondary evidence/statement of the said deceased recorded under section 161 Cr.P.C. (Ext.Ka-16) has been filed and proved by the I.O. concerned, which corroborates the said dying declaration of the deceased Jag Ram. There appears to be no contradiction and the deceased had levelled specific allegations/charge of murder against the appellants. The motive alleged in the First Information Report and common intention of the appellants for murder have been proved by the prosecution by cogent evidence. Both the appellants were carrying fire arm weapon together came on the spot and actually participated in the incident in question. In view of the distance from the place of incident to the police station (4 Kms.) FIR in this case has been lodged promptly. The entire police proceeding, inquest report and postmortem were conducted in accordance with rules and in promptitude. Similarly, the then seriously injured Jag Ram (deceased) and injured Ramesh were brought for medical examination with 'Chitthi Mazrubi' by the constable. They were promptly medically examined. Radio Mettalic substance found in the body of Jag Ram in the X-ray. The entire police proceeding, inquest report and postmortem were conducted in accordance with rules and in promptitude. Similarly, the then seriously injured Jag Ram (deceased) and injured Ramesh were brought for medical examination with 'Chitthi Mazrubi' by the constable. They were promptly medically examined. Radio Mettalic substance found in the body of Jag Ram in the X-ray. Noting crime number in inquest is not a condition precedent, however, G.D. Number and date and other particulars are there in the inquest report as per the provision of section 174 Cr.P.C. Para 115 Police Regulation does not come into play in this case. Presence of the said eyewitnesses at the time and place of the incident has been proved by them and the reason for their presence is quite natural and probable. Also there is no material on record which creates doubt about their presence. 16- The learned AGA further contended that the previous enmity/motive has been stated in the FIR and proved by the witnesses, which the defence has also admitted, FIR was lodged promptly by Gurnam Singh (P.W.-1) brother of Sant Singh deceased. It is also submitted by the learned A.G.A. that the prosecution by placing the prompt FIR, police and medical proceedings and placing cogent oral and documentary evidence has proved the incident in question and the charge framed against the appellants/accused, beyond reasonable doubt. All the witnesses are trust-worthy; their testimony are natural and no material contradictions, embellishments or exaggerations are present in their testimony, as such there is no substance in the arguments of the learned counsel for the appellants. The contradictions, as alleged by the learned counsel for the appellants, in the ocular and medical evidence are misconceived. The learned Sessions Judge has convicted the appellants/accused by a reasoned judgment and order hence, there is no scope for interference by this Appellate Court in the impugned judgment and order. 17- Before entering into the merits of the appeal, 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. 17- Before entering into the merits of the appeal, 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. 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." 18- 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. 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. 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." 19- Therefore, it is the settled proposition of law that the High Court, while exercising appellate jurisdiction in criminal appeal, is expected to appraise the credibility of evidence available on record and to draw the inference on the basis of material available on record and has not to be guided by the finding of acquittal or conviction recorded by the learned court below, bearing in mind the basic principle of criminal law regarding innocence of the accused. 20- Firstly, we would like to have a glance at the medical evidence, which is in the form of statement of Dr. M.P. Agarwal (P.W-.6) and postmortem reports of Sant Singh deceased (Ext. Ka-2) and Jagram deceased (Ext.Ka-3). Though on behalf of the defence death/murder of Sant Singh and Jagram have not been disputed. However, we are duty bound to examine whether any offence was committed and if so, by whom. 21- The postmortem examination of the deceased Sant Singh was conducted by PW-6 Dr. M.P. Agarwal on 2.4.1978 at 2.00 PM. He then prepared the postmortem report (Ext-Ka 2) and made the following observations therein: External Examination: 1- The deceased was aged about 40 years. Two days had elapsed since his death and rigor mortis was present. 2-There were no signs of decomposition, but the body had turned yellow. Both the eyes were closed and normal. Ante-Mortem Injuries: 1- Gun shot wound of entry 2 cm in diameter on the left side of lower part of neck just above left sterno clavicular joint into chest cavity deep. Blackening and tattooing present. 2- Gun shot wound of entry 2.5 cm in diameter, chest cavity deep into right side lower part front of chest 5 cm below right nipple at 5' O clock position. Blackening and tattooing present. 3- Two gun shot wound of entry in an area of 4.5cm x 1.5 cm on left side chest middle part each 2.5 cm apart, each measuring 0.5 cm in diameter, in chest cavity deep. No blackening and tattooing present. 4- Gun shot wound of exit six in number in an area of 10 cm x 6 cm on the back of right side of abdomen each measuring 1 cm in diameter. 5- Gun shot wounds of exit seven in number in an area of 11 cm x 7 cm on back of chest middle part each measuring 1 cm in diameter. Internal Examination: 1- Fracture of ribs six to nine on on right side and 3rd and 4th on left side. Pleura lacerated. Both lungs lacerated chest cavity contained 500 ml in both sides. 2- Peritoneum lacerated on right side and cavity contain about 400 ml blood. Stomach contained partially digested food about 150 gm. Liver lacerated. PW-6 Dr. M.P. Agarwal stated on oath that the deceased died due to shock and haemorrhage resulting from above mentioned injuries. Pleura lacerated. Both lungs lacerated chest cavity contained 500 ml in both sides. 2- Peritoneum lacerated on right side and cavity contain about 400 ml blood. Stomach contained partially digested food about 150 gm. Liver lacerated. PW-6 Dr. M.P. Agarwal stated on oath that the deceased died due to shock and haemorrhage resulting from above mentioned injuries. He further stated that the postmortem report (Ext.Ka-2) was prepared and signed by him. 4 bullets and 35 pellets and wadding pieces were recovered from the body which were sent in a sealed packet to C.M.O and S.S.P. He further stated that 1 pajama, 1 shirt , 1 turban were also found on the body of the deceased and they were also sealed and sent to authorities. 22- PW-6 Dr. M.P. Agarwal was then subjected to cross examination, when asked that whether the death could have occurred on 1.4.1978 at 9.00 PM then the doctor replied in the negative. He further stated that, in the time of death that he had calculated as one day, there could be a difference of 4 hours to 6 hours on both sides. As the rigor mortis was present on upper and lower half of the body it may be said that death occurred one day prior to the postmortem, also there were no signs of decomposition. When asked whether the death could have taken place within 17 hours to 18 hours of the postmortem, the doctor replied that it was also possible that the death occurred within 17 hours to 18 hours of the postmortem. PW-6 further stated that he can't opine whether the death occurred instantly due to these injuries or after some time. 23- Similarly, the postmortem examination of the deceased Jagram was conducted by him (P.W.-6) on 4.4.1978 at 4 p.m. He then prepared the postmortem report (Ext.Ka-3) and made following observations therein:- External Examination: The deceased Jagram was aged about 40 years. According to him the deceased Jagram succumbed to injuries on 3.4.1978 at 11.30 p.m. in Medical College Hospital. Ante-Mortem Injuries: (1) Stitched wounds 19 cm long with 19 stitches on the front of right side abdominal longitudenal in direction. (2) Stitched wound 1 cm long with one stitch right side abdominal middle part. (3) Lacerated wound 1 cm x 0.5 cm x cavity deep on the right side abdonal middle part drainage to present in the abdominal. Ante-Mortem Injuries: (1) Stitched wounds 19 cm long with 19 stitches on the front of right side abdominal longitudenal in direction. (2) Stitched wound 1 cm long with one stitch right side abdominal middle part. (3) Lacerated wound 1 cm x 0.5 cm x cavity deep on the right side abdonal middle part drainage to present in the abdominal. Internal Examination: (1) Abdominal cavity contained 250 ML blood. Larger intestine was stitched and the right kidni was contused. Regarding cause of death Dr. M.P. Agarwal (PW-6) has stated that the deceased died due to shock and haemorrage resulting from the above mentioned injuries. He further stated that the said injury report was prepared and signed by him at the time of postmortem examination which was marked as Ext.Ka.-3. In his cross-examination P.W.-6 was unable to explain about the stitched wounds. Further was unable to explain that in both the stitched wounds, which one of them was injury of exit because the deceased was operated upon and stitched thereafter. He specifically stated that no bullet was recovered from the body of the deceased Jagram. 24- P.W.-7 Dr. S.K. Jindal, in his statement has stated that he was posted as Medical Officer, P.L. Sharma Hospital, Meerut on 2.4.1978 in the night. On that day at about 12.45 A.M., he medically examined the seriously injured Jagram. He deposed that the injured was brought to him by the constable Tilak Ram, who also produced the necessary paper before him. He found following ante-mortem injuries on the body of the then injured Jagram:- 1- Gun shot wound of entry 0.5 cm x 0.5 cm on the right side of abdomen 7 cm lateral and upwards to umblicus. No tattoing, scarching or burning present. He opined that the injury appeared to be caused by a fire arm and it was a fresh wound. He further deposed that the injury might have been inflicted at around 9.00 PM on 1.4.1978. He also affirmed that the injury report (Ext.Ka-4) was prepared and signed by him. 25- PW-7 Dr. S.K. Jindal further stated on oath that he conducted the medical examination of the injured Ramesh S/O Jahariya in the same night on 1/2.4.1978 at 12.50 a.m. He was also brought by the constable Tilak Ram and was identified by him. He also affirmed that the injury report (Ext.Ka-4) was prepared and signed by him. 25- PW-7 Dr. S.K. Jindal further stated on oath that he conducted the medical examination of the injured Ramesh S/O Jahariya in the same night on 1/2.4.1978 at 12.50 a.m. He was also brought by the constable Tilak Ram and was identified by him. PW 7 found following injuries on the body of the injured Ramesh: 1- Lacertaed wound 2cm x 0.5 cm on scalp. This wound may have been caused by the barrel of the gun, the wound was fresh and it must have been inflicted at around 9.00 PM on 1.4.1978. PW-7 Dr S.K. Jindal deposed that the said injury report (Ext.Ka-5) was prepared and signed by him. On being cross-examined Dr. S.K. Jindal (PW-7) stated that he did not mention the duration of the injuries on the person of Jagram. He further stated that an injury from a blunt weapon would be equal to the breadth of that weapon. He also explained that by fresh he meant that the injury was inflicted within 6 hours of the medical examination. On being asked by the court PW-7 replied that the injuries on the person of Ramesh might also be caused when the head hit the floor while falling or if the person's head hit a wall. In such a scenario, it is possible to suffer injury on other parts of the body as well but it is not necessary. He further stated that at the time of deposing in the court he had seven years of experience in his job and he was doing medicolegal examination since last five years. 26- Bearing in mind the principles enunciated by the Hon'ble Apex Court for exercising appellate jurisdiction by the High Court, the evidence of the prosecution witnesses is being critically appraised herein below taking into consideration the basic concept of criminal jurisprudence of innocence of accused unless contrary is established by evidence available on record. 27- The first point of assailing the judgment of the learned trial court by the learned counsel for the appellants is on the ground of motive that the learned trial court has failed to appreciate the evidence in right perspective and drawing the inference with respect to motive. We are of the view that it is a case based on direct evidence. We are of the view that it is a case based on direct evidence. The motive does not have much significance in such cases and even if for the argument sake motive is taken to have not been proved, it will have no bearing on the prosecution version. 28- Further submission of the counsel for the appellants is with respect to the identity of the accused appellants due to the paucity of sufficient light. Time and again the matter was placed for consideration before the Apex Court and the Apex Court was pleased to opine that whatever source of light was available, if it was sufficient for the accused persons to identify the victim and to commit the same, the same cannot be treated to be insufficient for identifying the accused persons by the complainant's side. The submission in this regard loses its significance in view of the fact that the accused and the victim/complainant are dependants of the same family. They have the common ancestor, meaning thereby they belonged to the same family and are related to each other. The identification otherwise also cannot be ruled out. However, the source of light has been introduced as Patromax, which was burning at the relevant time and was largely sufficient for the accused persons for committing the offence, hence the submission that the light was insufficient for identification of the accused, cannot be sustained. 29- Next submission is with respect to the non-recovery of the weapon of assault. The non-recovery of weapon of assault cannot be considered to be the sole ground for discarding the prosecution version where the victims of the offence have sustained the fire arm injuries which finds corroboration of the medical testimony (PW-6 Dr. M.P. Agarwal, PW-7 Dr. S.K. Jindal and PW-9 Dr. A.S. Mathur). 30- Next submission is that the statement of Jagram, who subsequently died consequent to sustaining fire arm injuries, whose statement was recorded by the I.O. under Section 161 Cr.P.C. (Ext.Ka-16) is of no avail since it cannot be treated to be a dying declaration, as contained in para 115 of Police Regulation. Para 115 of the Police Regulation contemplates conditions for recording the dying declaration. Para 115 of the Police Regulation contemplates conditions for recording the dying declaration. It is true that the statement under Section 161 Cr.P.C of Jagram was not recorded by the I.O. as stipulated in the para 115 of the Police Regulation, but there is no legal impediment for the I.O. to prima facie prove through its oral testimony the statement which was given to him and recorded by him under Section 161 Cr.P.C. by the deceased Jagram, who subsequently succumbed to the fire arm injuries. As in the instant case the then statement of deceased Jagram recorded under Section 161 Cr.P.C. has been corroborated by the statements of other eye witnesses (PW-1, PW-2 and PW-3), Investigating Officer and other formal witnesses as well as injury reports, the postmortem examination report, FIR and other police papers, therefore, we are of the view that the said statement of the deceased Jagram recorded under Section 161 Cr.P.C. (Ext.Ka-16) and proved by the Investigating Officer, is worthy to be relied upon in view of the decision of the concurrent Bench of this Court in Gulab Singh Vs. State of U.P. 2003 (47)ACC 161. 31- So far as the secondary evidence with respect to the dying declaration of Jagram recorded by the Magistrate is concerned, it is true that the original statement was lost and the observation in this regard has been made by the learned trial court. The clerk concerned (PW-11 Gambhir Singh, Ahalmad/clerk, Court of C.J.M., Meerut) has proved the loss of dying declaration and proved the register concerned (Ext.Ka-12) and copy of dying declaration of Jagram and the leaf of the case diary has been produced and proved by the I.O. before the court as secondary evidence (Ext.Ka-26 and Ext.Ka-28). 32- While dealing with the evidence of the declarant's mind, the Constitution Bench of the Apex Court in Laxman Vs. 32- While dealing with the evidence of the declarant's mind, the Constitution Bench of the Apex Court in Laxman Vs. State of Maharashtra, (2002) 6 SCC 710 has laid down thus: "........................A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs of otherwise will suffice provided the indication is positive and definite." 33- Even for the argument sake, if it is discarded then the heavy duty is cast upon the court to appreciate the direct ocular evidence of the eye witnesses/injured witness, who have been examined before the court, on its own merits, and to draw the inference about the complicity of the accused persons and also the court has to see whether the statement so recorded and proved by the I.O. finds corroboration from the testimony of the eye witnesses or the injured witness. 34- Much emphasis has been laid on behalf of the accused appellants to the testimony of the PW-10 Harpal Singh, who is the Kohloo owner where the incident took place. He has been declared hostile. The matter of appreciation of the hostile witness has, time and again, been considered by the Hon'ble Apex Court and now the position has been crystallized through a catena of the decisions of Hon'ble Apex Court that the entire testimony of a witness being declared hostile cannot be treated effaced but a onerous duty is cast upon the court to consider the entire testimony of the witness and to extract the truth from its testimony and to cull out the portion of evidence which supports the prosecution or defence version. 35- In the case of PW-10 Harpal Singh, who was dealing with the business of crushing the sugarcane, this fact cannot be over-looked that a person who is involved in the business of crushing sugarcane, would not like to lose the customers and more so in the recent time it has been the tendency of the witnesses that they have developed apathy with the affairs of others and they do not involve themselves in the affairs of others. The witness was declared hostile at the request of the learned prosecution. The purpose of cross-examination as contemplated in the Evidence Act is to test the veracity of the witness and to illicit the truth from the statement made by the witness as Examination-in-Chief. The witness was declared hostile at the request of the learned prosecution. The purpose of cross-examination as contemplated in the Evidence Act is to test the veracity of the witness and to illicit the truth from the statement made by the witness as Examination-in-Chief. The witness was put to the cross-examination and during the cross-examination he has categorically made admission that the incident took place at his Kohloo (Crusher) where Jagram and Ramesh sustained injuries and Sant Singh succumbed to the injuries, as such merely the witness being declared hostile his evidence loses its significance, is not the correct position of law. His entire testimony is taken under consideration and the inference is to be drawn on the basis of his testimony as a whole. 36- So far as the reason of his (P.W.-10 Harpal Singh) being turned hostile is concerned, it is revealed from his admission wherein he has categorically stated about extending threat before him and further he stated that he lodged the report about extending threat to him for giving evidence before the court, as such any submission that the witness turned hostile does not provide much help to the defence. 37- The submission regarding the difference about the bore of the weapon is concerned, admittedly the witnesses are illiterate village persons and they are not supposed to be well versed about the bore of a particular weapon, hence any lacuna in this regard would be of no avail for the prosecution, more so the submission in this regard remains of no avail since the weapon of the assault could not be recovered, hence there was no opportunity for the prosecution to obtain Ballastic Expert Report. However, the factum of Amrik Singh having a licencee fire arm weapon is established from the testimony of PW-5 Birbal Singh, the Arms Clerk of the Collectorate, Meerut. 38- The further ground of attack is that no independent witnesses have been examined to prove the incident and the witnesses examined are the related to the victim and hence are interested witnesses. The matter has at so many occasions been considered by the Hon'ble Apex Court. 39- The law on this point is very clear that non-examination of an independent witness is not a mathematical formula for discarding the weight of the testimony of other direct ocular witnesses available on record, however natural, trustworthy and convincing it may be. The matter has at so many occasions been considered by the Hon'ble Apex Court. 39- The law on this point is very clear that non-examination of an independent witness is not a mathematical formula for discarding the weight of the testimony of other direct ocular witnesses available on record, however natural, trustworthy and convincing it may be. It is settled law that non-examination of independent witness cannot be pressed into service like a ritualistic formula for discarding the prosecution case with a single stroke of pen. The Court can convict the accused on the statement of solitary eye witness, even if he is related to the deceased, inimical or partisan, therefore, non-examination of an independent witness would not be fatal to the case of the prosecution. The above ratio of law has been laid down by the Apex Court in the cases of Kripal Singh v. State of Haryana [ AIR 2013 SC 286 ], Sandeep v. State of U.P. [ (2012) 6 SCC 107 ] and Mano Dutt and another v. State of U.P. [ (2012) 4 SCC 79 ]. Dalip Singh and others Vs. State of Punjab [ AIR 1953 SC 364 1SCR 145], Chavda Jivanji Chelaji and others v. State of Gujrat [2001 Cri LJ 3299], Girish Yadav and others v. State of Madhya Pradesh [ AIR 1996 SC 3098 ] and Bhagwan Singh and others v. State of Madhya Pradesh [ AIR 2002 SC 1621 ]. 40- In a recent judgment in the case of Nagappan v. State (by Inspector of Police, Tamil Nadu) reported in AIR 2013 SC 3298 , the Apex Court in paragraph No. 10 has observed as under:-- "10. As regards the first contention about the admissibility of the evidence of PW 1 and PW 3 being closely related to each other and the deceased, first of all, there is no bar in considering the evidence of relatives. It is true that in the case on hand, other witnesses turned hostile and have not supported the case of the prosecution. The prosecution heavily relied on the evidence of PW 1, PW 3 and PW 10. The trial court and the High Court, in view of their relationship, closely analysed their statements and ultimately found that their evidence is clear, cogent and without considerable contradiction as claimed by their counsel. The prosecution heavily relied on the evidence of PW 1, PW 3 and PW 10. The trial court and the High Court, in view of their relationship, closely analysed their statements and ultimately found that their evidence is clear, cogent and without considerable contradiction as claimed by their counsel. This Court, in a series of decisions, has held that where the evidence of "interested witnesses" is consistent and duly corroborated by medical evidence, it is not possible to discard the same merely on the ground that they were interested witnesses. In other words, relationship is not a factor to affect the credibility of a witness. " 41- Therefore, the Hon'ble Apex Court has taken note of the situation that normally the people do not want to be involved in the affairs of the others, even if they have seen the incident. There is a general apathy among the public to not to involve themselves in the litigation of others either to depose in favour or against a particular side. It is the related persons who have tendency or psychology that the real culprits should not go scot free and the actual culprits should be brought to be booked. Merely on the ground that the witnesses are related, their testimony cannot be discarded. In such circumstances, the court is enjoined with the duty to scrutinize the testimony of the related witnesses with utmost care and caution and as such the submission in this regard that the witnesses being related to the victim is of not much significance. 42- The inquest report has been assailed on the ground that it does not bear the crime number. The purpose of preparation of inquest is contemplated under Section 174 Cr.P.C., which does not mandate the mentioning of crime number as a condition precedent for authenticating the inquest report. The purpose for which the inquest is prepared is enunciated in the section itself, as such this argument cannot be sustained that mere absence of the crime number would discredit the inquest report, when the instant inquest report finds mention of the G.D. Number and the date. 43- The Hon'ble Apex Court in the case of Ravi @ Ravichandran Vs. The purpose for which the inquest is prepared is enunciated in the section itself, as such this argument cannot be sustained that mere absence of the crime number would discredit the inquest report, when the instant inquest report finds mention of the G.D. Number and the date. 43- The Hon'ble Apex Court in the case of Ravi @ Ravichandran Vs. State; 2007 (Cri.)LJ 2740 has observed that the purpose of preparing the inquest report is only to notice as to whether the murder committed was homicidal in nature or not for making a note in regard to identification marks of the accused. 44- The Hon'ble Apex Court in the case of Amar Singh Vs. Balwinder Singh and others; AIR 2003 SC 1164 has observed that purpose of holding inquest is opined in Section 174 Cr.P.C. the police officer is required to record the cause of death describing the wounds as may be found on the body and also the weapon or instrument by which they appear to have been inflicted. The Hon'ble Apex Court has further observed that this section does not contemplate that the manner in which the incident took place should be mentioned. Its total probative value has been discussed in the case of Pandurang Tukia & Bhillia Vs. State of Hydrabad; AIR 1955 SC 216 that except section 145 of the Indian Evidence Act, admissibility of inquest report is not questionable. At the most inquest witness could have been confronted with its help. 45- The next point for challenge of the inquest is the execution of the inquest on 2.4.1978 whereas the I.O. reached the spot on 1.4.1978. P.W.-13 S.I. Khyali Ram Bhati has proved the execution of the inquest report and he has also stated the reason for drawing the inquest proceedings on 2.4.1978, as such the delay in execution of the inquest report has been properly explained by the PW-13 S.I. Khyali Ram Bhati, on whose instance the inquest was prepared by the S.I. Somveer Singh. This argument loses its significance. This argument loses its significance. 46- The incident is alleged to have taken place at the Kohloo (crushing machine of sugar-cane) situated at village Badhla within Police Station Parikshitgarh, Sub District Mawana, District Meerut at about 9 p.m. and the First Information Report of the incident has been lodged on 1.4.1978 at 11 p.m. In view of the fact, it has been stated on behalf of the accused appellants that the First Information Report is delayed and it was after-thought with the help of the police. This fact cannot be ignored that the distance from the place of occurrence to the police station is approximately 4 Kms. This fact can also not be affected that in an incident in which one person has died because of the fire arm injuries and the one person sustained serious injuries, the trauma of the persons affected with the crime cannot be assessed. However, within a span of two hours the First Information Report was lodged with the police. In such a situation, the First Information Report cannot be held to be a delayed one. It is prompt and appears to be without any concoction or manipulation. 47- Next argument that has been advanced by the side of the appellants is that there is material contradictions in the medical and the ocular evidence. This argument has also no force. Actually witnesses can not be expected to state facts with mathematical precision. It also depends upon the place and distance from where they have observed the incident and have individually perceived. 48- For the sake of discussion, if it is presumed that there is any variation even then as principle laid down by the Apex Court in Gajoo Vs. State of Utterakhand, 2012 (9) SCC 532 , that while appreciating the variation between the medical evidence and ocular evidence, primacy is given to the oral evidence of the witnesses. The Apex Court in the case of Sadhu Saran Singh Vs. State of U.P. and others (2016) 4 SCC 357 has reiterated the principle of law laid down by the Supreme Court in the decision of Darbara Singh Vs. The Apex Court in the case of Sadhu Saran Singh Vs. State of U.P. and others (2016) 4 SCC 357 has reiterated the principle of law laid down by the Supreme Court in the decision of Darbara Singh Vs. State of Punjab (2012) 10 SCC 476 , wherein the Court has held:- "......So far as the question of inconsistency between the medical evidence and the ocular evidence is concerned, the law is well settled that, unless the oral evidence available is totally irreconcilable with the medical evidence, the oral evidence would have primacy. In the event of contradictions between medical and ocular evidence, the ocular testimony of a witness will have greater evidentiary value vis -a -vis medical evidence and when medical evidence makes the oral testimony improbable, the same becomes a relevant factor in the process of evaluation of such evidence. It is only when the contradiction between the two is so extreme that the medical evidence completely rules out all possibilities of the ocular evidence being true at all, that the ocular evidence is liable to be disbelieved." 49. However, in this case, there is no variation between the medical evidence and the ocular evidence, and once they are conjointly read, it does not falsify either the statement of the witnesses or the postmortem reports and injury reports. In fact, both of them must be read as complimentary to each other. Even if for the sake of argument it is assumed that there is some variation, still, it would be too immaterial and inconsequential to give any benefit to the appellants. 50- Learned counsel for the appellants also argued that there are discrepancies, contradictions in the evidence of ocular witnesses of the prosecution. We do not agree with the view of the learned counsel for the appellants in this respect. Witnesses cannot be expected to state facts with mathematical precision. It also depends upon the place and the distance from where they have observed the incident and have individually perceived it. 51- It is pertinent to point out that every discrepancy, contradiction, and variation in prosecution evidence may not be sufficient to adversely effect the prosecution case. Sometimes, variation merely indicates that witnesses have not been tutored and are natural. It also depends upon the place and the distance from where they have observed the incident and have individually perceived it. 51- It is pertinent to point out that every discrepancy, contradiction, and variation in prosecution evidence may not be sufficient to adversely effect the prosecution case. Sometimes, variation merely indicates that witnesses have not been tutored and are natural. So long as the core of the prosecution evidence is intact and trustworthy, minor discrepancies in the prosecution evidence are not sufficient to discard the otherwise trustworthy testimony of the prosecution witnesses. The Apex Court in Meharban Singh and others Vs. State of Madhya Pradesh, (1996) 10 SCC 615 , has held that it is the duty of the courts to evaluate the discrepancy and to see whether minor discrepancy in fact adversely affects the trustworthy character of evidence or not. If the courts can believe the trustworthy character of evidence, then minor discrepancies are not sufficient to discard the evidence of otherwise trustworthy witnesses. 52- Now the court is required to appraise the testimony of the eye witnesses PW-1 informant Gurnam Singh, who has proved the execution of the written report, which has been marked as Ext.Ka-2. He is the witness of the fact as well as eye witness. PW-1 has categorically stated about the motive, time, date, place, manner of occurrence and the weapon used in the assault and given the description of the persons who have sustained the injuries. The witness has categorically stated that the accused persons namely Amrik Singh and Har Kirat Singh at about 9 p.m. at the place of Kohloo (crusher machine) of Harpal Singh (PW-10) at village Badhla within Police Station Parikshitgarh, Sub District Mawana, District Meerut respectively discharged fire shots aiming at the informant and his brother. Amrik Singh was assigned licence gun whereas Har Kirat Singh was assigned pistol as weapons of assault. The witness has categorically stated about the litigation being the motive for assault. The witness has also disclosed the name of the witnesses who were present at the time of the incident. The witness has given a detailed description about the manner of the assault. He further categorically stated that the Jagram was caught hold by Amrik Singh and Har Kirat Singh discharged fire arm which hit at his abdomen, who subsequently succumbed to the injuries. The witness has given a detailed description about the manner of the assault. He further categorically stated that the Jagram was caught hold by Amrik Singh and Har Kirat Singh discharged fire arm which hit at his abdomen, who subsequently succumbed to the injuries. The witness has categorically stated that the fire discharged by Amrik Singh and Har Kirat Singh respectively hit both the injured persons and subsequently Amrik Singh hit to Ramesh from the barrel of his gun, who also sustained the injuries. The witness has been put to a lengthy cross-examination but nothing can be extracted by way of cross-examination so as to raise doubt about the veracity of the statement of the witness. 53- The next witness of the fact PW-2 Ramesh is the eye witness and is also injured. He has also categorically stated about the date, time, place and manner of assault by Amrik Singh and Har Kirat Singh and the weapon of assault. He has fully corroborated the prosecution version and he has also stated the manner in which the deceased Sant Singh and Jagram sustained the fire arm injuries due to the sharp discharge of fire shots by Amrik Singh and Har Kirat Singh. He also categorically stated about the assault made to him by Amrik Singh through the barrel of his gun. The witness has been put to a lengthy cross-examination but nothing can be extracted by way of cross-examination so as to create any doubt about the veracity of his statement. 54- P.W.-3 Rai Singh is also the eye witness. He has also fully corroborated the prosecution version regarding date, time, place, manner of weapon of assault and who were the persons who sustained the injuries and who were the persons present at the spot at the time of the incident. The witness has categorically named the assailants and the manner in which the fire arm injuries were caused to Sant Singh and Jagram as well as assault by barrel to Ramesh. The witness has also disclosed the reason why he was present at the crushing machine of Harpal Singh at the time of incident and he further disclosed how informant Gurnam Singh could save himself from sustaining the injuries. This witness has also been put to a lengthy cross-examination. The witness has also disclosed the reason why he was present at the crushing machine of Harpal Singh at the time of incident and he further disclosed how informant Gurnam Singh could save himself from sustaining the injuries. This witness has also been put to a lengthy cross-examination. 55- There is coherence about the source of light in the testimony of P.W.-1 Gurnam Singh, P.W.-2 Ramesh and P.W.-3 Rai Singh. They have unanimously disclosed the source of light and there is no variance on this point. 56- On inter-se appraisal of the testimony of P.W.-1, P.W.-2 and P.W.-3 , we are of the opinion that there is a coherence in the testimony of P.W.-1, P.W.-2 and P.W.-3 with respect to date, time, place, manner of assault, weapons of assault used by Amrik Singh and Har Kirat Singh and the person sustained the injuries, who succumbed to his injuries. There is animosity about Ramesh being hit by the barrel of the gun while he tried to save his brother deceased Jagram. Even presuming the minor contradictions in the inter-se testimony of P.W.-1 Gurnam Singh, P.W.-2 Ramesh and P.W.-3 Rai Singh, they are of no significance since there is consistency in the testimony of P.W.-1, P.W.-2 and P.W.-3 with respect to the manner of marpeet, date, time, place and the weapon of assault, names and presence of the assailants, the deceaseds and injured person as well as the witnesses at the place of occurrence. 57- It has been highlighted on behalf of the accused appellants that there was no occasion for the accused appellants to assault the deceased Jagram by fire arm. The fire shots were discharged and stray fire shots hit him, he was not targeted. If the argument is taken to be true, it fortifies the fact of discharge of fire shots by accused appellants at the place and time of the incident, but this fact cannot altogether be ignored that the Jagram sustained fire arm injuries and succumbed to injuries and from the evidence it is revealed that with a view to restrain, Amrik Singh was caught hold by Jagram whereupon accused appellant Amrik Singh asked the accused Har Kirat Singh to fire. 58- Now the court is required to assess the testimony of eye witnesses on the touch-stone of medical evidence. P.W.-6 Dr. 58- Now the court is required to assess the testimony of eye witnesses on the touch-stone of medical evidence. P.W.-6 Dr. M.P. Agarwal has proved the execution of the autopsy reports (Ext.Ka-2 and Ext.Ka-3) and proved the injuries of deceased Sant Singh and Jagram and has mentioned five and three antemortem injuries, respectively, which find mention in the body of the judgment. 59- P.W.-7 Dr. S.K. Jindal has conducted the medical examination of the then seriously injured Jagram, who has proved the injury reports (Ext.Ka-4 and Ext.Ka-5) and the antemortem injury on the abdomen of the deceased Jagram. Similarly, P.W.-7 has also examined injured Ramesh and he has mentioned the lacerated wound which was found on the scalp of Ramesh. P.W.-6 and P.W.-7 have proved the date and time of postmortem examinations and medicolegal examinations, respectively. P.W.-6 and P.W.-7 have, respectively, opined the nature of the injuries and the weapons causing the injuries as well as probable duration of the said injuries. 60- In the light of the testimony of P.W.-7 Dr. S.K. Jindal, if the injury of Ramesh injured is examined, he has sustained the injury of lacerated wound. He has categorically stated that the injury was caused by accused appellant Amrik Singh through the barrel of the gun. The nature of injury corresponds well and fully fortifies his testimony and the version of sustaining injury. 61- On the critical appraisal of the evidence of P.W.-6 and P.W.-7 , it can safely be said that the nature of the injuries disclosed in the postmortem examination fully corroborate and correspond to the weapon used in the assault committed by the Amrik Singh and Har Kirat Singh. The testimony of P.W.-1, P.W.-2 and P.W.-3 find full corroboration with respect to the nature of the injuries and the weapon assigned to the accused appellants and the duration of the injuries. 62- P.W.-9 Dr. A.S. Mathur has proved the presence of a radio opaque metallic density oval. Shadow with one end rounded of size approximately 1.5. X0.7 cm. in the Lumber 3 vertebra on right side which further strengthen the factum of assault of Jagram by fire arm and in term supports the prosecution version in its entirety. 62- P.W.-9 Dr. A.S. Mathur has proved the presence of a radio opaque metallic density oval. Shadow with one end rounded of size approximately 1.5. X0.7 cm. in the Lumber 3 vertebra on right side which further strengthen the factum of assault of Jagram by fire arm and in term supports the prosecution version in its entirety. 63- P.W.-13 S.I. Khyali Ram Bhati has conducted the investigation and has proved the execution of site plan, charge sheet and he has also proved the recovery memo of taking sample of blood stained and plain soil and he has also prepared the recovery memo of three empty cartridges, one shoe of left leg and one 'chaap' of gun no. 60243 and he has exhibited the documents and proved the execution thereof. The I.O. has also prepared the recovery memo of gas lantern/patromax and proved its exhibition. The I.O. has also proved the statement of Jagram recorded under Section 168 and has also filed the relevant part of the case diary. The I.O. also stated that after getting the information, he rushed to the spot and during the course of investigation he recorded the statement of the witnesses and transmitted the injured for medical treatment. No specific question has been put to the I.O. so as to establish that the I.O. did not reach the spot and did not perform the investigation as stated by him. He has proved his presence on the spot. Nothing can be extracted from his cross-examination so as to establish that he was not present on the spot or he performed the investigation in cursory manner. No material illegality or impropriety committed during the course of investigation by the I.O. has been brought to the notice of this Court. Even the statement of the deceased Jagram recorded and proved by the I.O. also finds corroboration from the testimony of eye witnesses/injured witness and entail also supports his dying declaration. 64- P.W.-8 S.I. Somveer Singh is the formal witness, who has proved execution of the First Information Report and the relevant General Diary. 65- After carefully scrutinizing the evidence, we are of the considered opinion that the view taken by the trial court is justified and substantiated by the material available on record. The trial court has not erred in appreciating the evidence and has rightly recorded the findings of conviction. 65- After carefully scrutinizing the evidence, we are of the considered opinion that the view taken by the trial court is justified and substantiated by the material available on record. The trial court has not erred in appreciating the evidence and has rightly recorded the findings of conviction. Therefore, we do not find any justification to interfere with the findings of conviction and the sentence awarded to the accused appellants by the learned trial court. 66- The appeal is bereft of merit and is accordingly dismissed. The conviction and sentence awarded by the learned Additional Sessions Judge, Meerut against the accused appellants Amrik Singh and Har Kirat Singh are confirmed. The accused/appellant Amrik Singh and Har Kirat Singh are directed to serve out the remaining part of the sentence awarded by the learned trial court in the impugned judgment. The accused appellants Amrik Singh and Har Kirat Singh are on bail. They shall surrender before the trial court for serving out the sentence within 15 days from the date of this judgment, failing which the trial court shall ensure their arrest and shall send them to jail for serving out the remaining sentence in accordance with law. 67- The copy of the judgment and entire record be transmitted back to the concerned trial court through Sessions Judge, Meerut for compliance within ten days. The concerned court will thereafter report the compliance to this Court within a month.