JUDGMENT Mohammad Rafiq, J. - This appeal has been filed by the accused-appellants challenging judgment dated 29.09.1987 passed by the Court of Sessions Judge, Bharatpur (for short 'the trial court') whereby the accused-appellants have been convicted and sentenced in the following manner: Name of Accused Section Sentence Raghuveer Singh 302 IPC Life imprisonment with fine of Rs. 100/-, in default of payment of fine to further undergo one month's simple imprisonment. 148 IPC One year's rigorous imprisonment. 324/149 IPC One year's rigorous imprisonment with fine of Rs. 50/-, in default of payment of fine to further undergo one month's simple imprisonment. 323/149 IPC Six months rigorous imprisonment. 3/25 Arms Act One year's rigorous imprisonment with fine of Rs. 100/-, in default of payment of fine to further undergo one month's simple imprisonment. Gambhir Singh 302 read with 149 IPC Life imprisonment with fine of Rs. 100/-, in default of payment of fine to further undergo one month's simple imprisonment. 148 IPC One year's rigorous imprisonment. 324 IPC One year's rigorous imprisonment with fine of Rs. 50/-, in default of payment of fine to further undergo one month's simple imprisonment. 323 IPC Six months rigorous imprisonment. Nihal Singh 302 read with 149 IPC Life imprisonment with fine of Rs. 100/-, in default of payment of fine to further undergo one month's simple imprisonment. 148 IPC One year's rigorous imprisonment. 324 IPC One year's rigorous imprisonment with fine of Rs. 50/-, in default of payment of fine to further undergo one month's simple imprisonment. 323 IPC Six months rigorous imprisonment. Basi 302 read with 149 IPC Life imprisonment with fine of Rs. 100/-, in default of payment of fine to further undergo one month's simple imprisonment. 148 IPC One year's rigorous imprisonment. 324 IPC One year's rigorous imprisonment with fine of Rs. 50/-, in default of payment of fine to further undergo one month's simple imprisonment. 323 IPC Six months rigorous imprisonment. Moola 302 read with 149 IPC Life imprisonment with fine of Rs. 100/-, in default of payment of fine to further undergo one month's simple imprisonment. 148 IPC One year's rigorous imprisonment. 324 read with 149 IPC One year's rigorous imprisonment with fine of Rs. 50/-, in default of payment of fine to further undergo one month's simple imprisonment. 323 IPC Six months rigorous imprisonment. All the sentences were ordered to run concurrently. 2. 148 IPC One year's rigorous imprisonment. 324 read with 149 IPC One year's rigorous imprisonment with fine of Rs. 50/-, in default of payment of fine to further undergo one month's simple imprisonment. 323 IPC Six months rigorous imprisonment. All the sentences were ordered to run concurrently. 2. At the outset it may be noted that accused-appellant No. 3, Nihal Sngh died during pendency of present appeal on 31.12.2015. His death certificate has been placed on record along with report dated 24.08.2017 of Chief Judicial Magistrate, Bharatpur according to which Nihal Singh has indeed expired. Therefore, present appeal qua accused-appellant No. 3, Nihal Singh stands abated 3. Facts of the case are that on 11.11.1985 in the morning at about 8.00 AM some hot words were exchanged between the some members of accused party and the complainant party near the field and at that time persons from both the sides were separated. Then at about 11.00-12.00 in the morning the incident took place in which Chutta died and other four persons received injuries on their persons. Lekh Raj Singh (P.W.15) received information from Rajendra Singh (P.W.11) and as per his version he mentioned that in Rojnamcha (Exhibit P-17) produced before the court and then he rushed to the spot. At the spot Vadda (P.W.1) submitted a written report to Lekh Raj Singh (P.W.15). As per the prosecution case, eleven accused persons came there. Raghuveer was having gun and Gambhir, Hubbi, Nihala, Basi and Bhanwar Singh were having Katta with them and other persons were having lathies with them. When these persons reached near the 'chapper' of the 'nohara', Raghuveer opened fire at Chutta, who received the pellet injuries on his person. Gambhir caused injuries to Pritam, Basi caused injuries to Shyam Lal by fire arms. Bahadur while coming there on tractor, was fired at from behind by Nihala. It was alleged that Moola caused injury by lathi to Shyam Lal. All these persons opened many fires. Chutta died due to the injuries. All these persons after firing ran away from the place. 4. On the basis of aforesaid written report, FIR No. 120/85 (Exhibit P-14) was registered at Police Station Uchchain District Bharatpur for offence under Sections 147, 148, 149 and 302 IPC and investigation commenced. The site plan and other documents were prepared. The accused persons were arrested. All these persons after firing ran away from the place. 4. On the basis of aforesaid written report, FIR No. 120/85 (Exhibit P-14) was registered at Police Station Uchchain District Bharatpur for offence under Sections 147, 148, 149 and 302 IPC and investigation commenced. The site plan and other documents were prepared. The accused persons were arrested. Upon completion of investigation, charge sheet was filed by the police against eleven accused persons before the Court of Additional Munsif and Judicial Magistrate, Bayana wherefrom the case was committed to the Court of Sessions, Bharatpur for trial. The trial court framed the charges against all the eleven accused persons, which they denied and claimed to be tried. The prosecution in support of its case produced 17 witnesses and exhibited 60 documents. Thereafter all the accused-appellants were examined under Section 313 Cr.P.C. wherein they stated that they were falsely implicated in the case. In defence, eight witnesses were produced and 18 documents were exhibited. Upon completion of trial, the trial court vide its judgment and order dated 29.09.1987 acquitted other accused-appellants, except present accused- appellants and convicted and sentenced them in the manner indicated above. 5. Mr. A.K. Gupta, learned counsel for the accused- appellants argued that the trial court has erred in convicting the accused appellants because evidence of the present case clearly show that they have been falsely implicated in this case. The trial court has failed to consider the genesis of the occurrence and the manner in which the fires were opened first by complainant party causing pellet injuries to Moola. The prosecution has suppressed the true version of the occurrence and the genesis. The trial court has recorded a finding that the injuries were caused near the field of Heti Jat whereas the field of this person has not been shown in the site plan and it is not near the place of occurrence. Actually, the area where the prosecution alleged that the occurrence took place also includes the field of Heti Jat, which is very near to 'nohara' from where the accused persons allegedly opened fire. It is argued that the trial court failed to appreciate the evidence on this point. It has come on record from the statements of the prosecution witnesses that the field of Heti Jat is also in the same area. The Investigating Officer intentionally did not mention the same in the site plan. It is argued that the trial court failed to appreciate the evidence on this point. It has come on record from the statements of the prosecution witnesses that the field of Heti Jat is also in the same area. The Investigating Officer intentionally did not mention the same in the site plan. In defence, some witnesses were examined who had also stated the same thing. Thus, it is proved that the field of Heti Jat is also in the same area and the place of occurrence is at some other place where both the parties received injuries. In these circumstances it is clear that the prosecution has suppressed the genesis and the true version of the occurrence and did not explain the injuries received by the accused-appellant No. 5, Moola. 6. It is argued that the prosecution witnesses have admitted that in the cross case they are facing trial. If Moola did not receive the injuries in the same occurrence, then there was no occasion for the prosecution witnesses to admit that they are facing trial in the cross case. This aspect of the case has also been overlooked by the learned trial court. Actually, some occurrence took place in the morning between both the parties and the persons from both the sides were separated and they stooped their quarrel. But at about 11.00 or 12.00 AM again occurrence took place and first of all, the accused-appellant Moola was attacked. The accused persons opened fire in the right of private defence. Thus in these circumstances, the accused persons had a right of private defence to their persons. The learned trial court has not at all discussed this aspect of the matter and failed to appreciate the same. From the evidence available on the record it is clear that none of the accused appellants has exceeded the right of private defence given to him. 7. Learned counsel argued that the trial court has also failed to appreciate that Raghuveer Singh had got very weak eye sight and he was not in a position to see the person from a very little distance. Thus in these circumstances it was not possible for him to open fire and to kill Chutta. The investigation in this case was nor fair. The investigating agency had interest in the complainant party. Thus in these circumstances it was not possible for him to open fire and to kill Chutta. The investigation in this case was nor fair. The investigating agency had interest in the complainant party. There were many complaints made to the higher authorities against the SHO of that police station namely Shri Deepak Bhatnagar (P.W.16). Some documents were produced to show that the complaints were made to the higher authorities on this count. From the bare perusal of the evidence it is also clear that the investigation in this case was not at all fair. 8. It is argued that the trial court has failed to appreciate that the information received by Rajendra Singh was not recorded properly. As per copy of Rapat (Exhibit P-17), Rajendra Singh (P.W.11) gave information to the SHO about the firing, which was going on. This information was correct but the same was suppressed and in few words information was mentioned in FIR. This document itself is a doubtful one. It is argued that the FIR was registered as a subsequent document and the same is hit by provisions of Section 162 Cr.P.C. The FIR was registered after a great delay, after concoction and consultation, implicating many innocent persons as accused in this case. This argument is fortified from the fact that the trial court vide its impugned judgment acquitted six accused persons. Thus, the FIR (Ex.P.14) was concocted and fabricated document which later on came on record. 9. Mr. A.K. Gupta, learned counsel for the accused- appellants argued that the incident in the present case took place on 11.11.1985 between 11.00 A.M. to 12.00 noon. As per Lekhraj Singh (P.W.15), in-charge of Police Station Uchchain, he received information regarding the incident at 12.05 P.M. and an entry to that effect was made in rojnamcha at Rapat No. 314 on 11. 11.1985. In his statement, he stated that he reached the place of incident within half an hour. However, the proceedings drawn by him in the written report indicate time of 12.25 P.M. which shows that the FIR was ante timed which is evident from the fact that no time was indicated in the site plan (Exhibit P-2). Learned counsel argued that FIR (Exhibit P-14) was initially sent to the Court of Additional Chief Judicial Magistrate No. 1, Bharatpur where it reached at 6.00 P.M. on 12.11.1985, thus with delay of 29 hours. Learned counsel argued that FIR (Exhibit P-14) was initially sent to the Court of Additional Chief Judicial Magistrate No. 1, Bharatpur where it reached at 6.00 P.M. on 12.11.1985, thus with delay of 29 hours. Thereafter, the FIR was transmitted to the Court of Additional Munsif cum Judicial Magistrate First Class Bayana where it reached on 22.11.1985. There is no evidence on record to show that who received the aforesaid FIR in both the courts. No explanation has been given by the prosecution about delay of 29 hours in the FIR reaching the first Court. Learned counsel argued that as per Section 157 (1) Cr.P.C., Officer In-charge of the police station was required to sent first information report to the concerned 10. Magistrate forthwith. However, it has not been explained by the prosecution as to who took the FIR to the Magistrate and who received the same. Gopal Ram (P.W.13), Head Constable and the Malkhana In-charge has claimed that he sent the FIR and dispatched it on the same day. In the first place, he was not the officer in-charge of the police station, who could have sent the FIR to the Magistrate concerned and secondly, he has not clarified that how and with whom he sent the FIR. It is argued that Section 157 (1) Cr.P.C. is mandatory which requires that FIR should be sent to the concerned Magistrate forthwith or promptly without any undue delay. Therefore, an inference should be drawn from this fact that FIR was actually lodged on 12.11.1985 and it was ante dated. Version in the FIR should be taken to be tainted one and not reliable. Learned counsel in support of this argument relied upon the judgments of the Supreme Court in Ishwar Singh Vs. The State of Uttar Pradesh, AIR 1976 SC 2423 ; and Arjun Marik & Others Vs. State of Bihar, 1994 Supp. (2) SCC 372 . 11. Learned counsel argued that as per site plan (Exhibit P- 2) firing took place from place E and X. If the version of the prosecution in the FIR is believed then firing took place at place B indicated in the FIR. Thus, the prosecution story has been completely changed. State of Bihar, 1994 Supp. (2) SCC 372 . 11. Learned counsel argued that as per site plan (Exhibit P- 2) firing took place from place E and X. If the version of the prosecution in the FIR is believed then firing took place at place B indicated in the FIR. Thus, the prosecution story has been completely changed. This is why the eye witnesses of the incidents had given new version than the one which they disclosed in their police statements recorded under Section 161 Cr.P.C. It should therefore be deduced from the facts that there was in fact no eye witness particularly when no pallets were recovered near the place of incident. It is argued that the prosecution has failed to give any explanation for the injuries sustained by Moola. As per the version given in the FIR, apart from Chhutta there were two persons present at the place of incident namely German Singh (P.W.2) and Shyam Lal (P.W.3). German Singh (P.W.2) has admitted previous enmity between the parties and asserted that a criminal case was pending at the Court of Bayana against his brothers and uncles at the instance of Nihala. When this witness was confronted with his police statement wherein he gave different version of the incident, he failed to give any explanation for such a discrepancy. In crossexamination, he stated that there were pallets marks on the wall but in the site plan no such marks were indicated. Learned counsel argued that this witness has changed his version in the Court from what he stated to the police in his statement under Section 161 Cr.P.C. and failed to give any explanation when confronted with his police statement (Exhibit D-2). In fact, when statements of other witnesses are read with statement of German Singh (P.W.2), he cannot be believed as eye witness of the incident. Shyam Lal (P.W.3) when confronted with his police statement (Exhibit D-3), he also failed to give explanation as to why therein he did not mention that accused fired at the deceased near 'neem' tree. In crossexamination, he admitted that Ram Singh, father of Raghuveer had lodged a criminal case against him in which he and Pritam were convicted and that another criminal case registered on the report submitted by Nihal Singh was also pending against him. In crossexamination, he admitted that Ram Singh, father of Raghuveer had lodged a criminal case against him in which he and Pritam were convicted and that another criminal case registered on the report submitted by Nihal Singh was also pending against him. This shows that accused-appellants have been falsely implicated in the present case for the reason of previous enmity. 12. It is argued that statement of Bahadur Singh (P.W.4) that accused fired at the deceased from 'neem' tree is not reliable. In fact, Bahadur Singh reached the place of incident afterwards and as per statements of German Singh (P.W. 2) and Shyam Lal (P.W.3), Bahadur Singh was not an eye witness and was not present when Chutta was fired at. He had given different story than the one given in the FIR and in his police statement (Exhibit D-4). Similarly, Geman Singh (P.W.2) and Shyam Lal (P.W.3) have not shown presence of Pritam Singh (P.W.5) as eye witness. Pritam Singh (P.W.5) has also admitted previous criminal cases between the parties which indicates that the accused-appellants have been falsely implicated in the present case. Pritam Singh also failed to give any explanation about the discrepancy in his police statement and court statement. Similarly Parasram (P.W.6) has also introduced a new story than the one disclosed in the FIR and the police statement (Exhibit D-6) and Site Plan (Exhibit P-2). Learned counsel referred inquest report (Exhibit P-13) and argued that case number was inserted therein subsequently. 13. Learned counsel referred to section 165 Cr.P.C. and submitted that as per sub-section (5), investigating officer was under obligation to sent copies of any record made under subsection (1) or sub-section (3) forthwith to the nearest Magistrate empowered to take cognizance of the offence. 13. Learned counsel referred to section 165 Cr.P.C. and submitted that as per sub-section (5), investigating officer was under obligation to sent copies of any record made under subsection (1) or sub-section (3) forthwith to the nearest Magistrate empowered to take cognizance of the offence. According to Section 165 (1) Cr.P.C., whenever an officer in charge of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search, or cause search to be made for such thing in any place within the limits of such station and as per Section 165 (3), if he is unable to conduct the search in person, and there is no other person competent to make the search present at the time, he may after recording in writing his reasons for so doing, require any officer subordinate to him to make the search, and he shall deliver to such subordinate officer an order in writing, specifying the place to be searched, and so far as possible, the thing for which search is to be made, and such subordinate officer may thereupon search for such thing in such place. This provision was not at all followed during the investigation in the present case. 14. Learned counsel argued that as per size and dimensions of the injuries sustained by the deceased and the injured, firing took place at a distance which is evident from statement of Ramesh Chand (P.W.17), which indicates that firing was opened from a distant place. Intention of murder of the deceased cannot be therefore attributed to the accused-appellants, particularly when the injured as also the deceased received simple injuries. Besides, the prosecution has failed to give any explanation as to the injuries of the accused-appellant Moola. Intention of murder of the deceased cannot be therefore attributed to the accused-appellants, particularly when the injured as also the deceased received simple injuries. Besides, the prosecution has failed to give any explanation as to the injuries of the accused-appellant Moola. Learned counsel referred to statement of Gambhir Singh (D.W.8) and submitted that he has proved certificate (Exhibit D-16A), according to which he at the relevant time had gone to Railway Station Pigora to collect the tickets. 15. Relying on the judgment of the Supreme Court in Mitter Sen & Others Vs. The State of U.P., AIR 1976 SC 1156 , learned counsel argued that if the prosecution has failed to explain the injuries of the accused, benefit of doubt must go to the defence as they caused injuries to the complainant party in exercise of their right of private defence. Learned counsel relied upon the judgment of the Supreme Court in Ram Kumar Pande Vs. The State of Madhya Pradesh, AIR 1975 SC 1026 and argued that omission of important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case. Learned counsel lastly argued that as per Section 39 of the Arms Act, 1959, no prosecution shall be instituted against any person in respect of any offence under Section 3 of the Arms Act without previous sanction of the District Magistrate. Since there is no previous sanction of the District Magistrate concerned in the present case, conviction and sentence of the accused-appellant Raghuveer Singh on this count is liable to be set aside. 16. Per contra, Mrs. Sonia Shandilya, learned Public Prosecutor as also Mr. Mohit Balwada, learned counsel for the complainant opposed the appeal and argued that learned trial court has rightly convicted the accused-appellants for the alleged offences as their guilt has been proved by evidence of eye witnesses namely German Singh (P.W.2); Shyam Lal (P.W.3); Bahadur Singh (P.W.4); Pritam Singh (P.W.5); Paras Ram (P.W.6) and Prabhati (P.W.8). It is argued that accused party has been indulging in lodgment of criminal cases against the complainant party. Exhibit P-47 is FIR No. 74/1980 lodged by Chutta (deceased) at Police Station Uchchain against the accused party for offence under Sections 147, 452, 325, 323 and 329 IPC with regard to incident of 20.10.1980. It is argued that accused party has been indulging in lodgment of criminal cases against the complainant party. Exhibit P-47 is FIR No. 74/1980 lodged by Chutta (deceased) at Police Station Uchchain against the accused party for offence under Sections 147, 452, 325, 323 and 329 IPC with regard to incident of 20.10.1980. Similarly, Exhibit P-48 is FIR No. 81/1980 lodged by Chutta (deceased) at Police Station Uchchain against the accused party for offence under Sections 147, 148, 149, 452, 323 IPC with regard to incident of 06.11.1980. Exhibit P- 49 is FIR No. 84/1980 lodged by Kalyan Singh @ Kalua at Police Station Uchchain against the accused party for offence under Sections 147, 148, 149, 307, 379 and 323 IPC with regard to incident of 28.11.1980. Exhibit P-50 is FIR No. 22/1982 lodged by Vadda at Police Station Uchchain against the accused party for offence under Sections 147, 148, 149, 307 and 447 IPC with regard to incident of 12.03.1982. It is argued that in the present case with regard to injuries of Moola, criminal complaint (Exhibit D-14) was filed by the accused party but the police, considering that case to be false one as the injuries were self inflicted, gave negative final report. 17. Learned Public Prosecutor and learned counsel for the complainant referred to injury report of Pritam Singh (Exhibit P-53) to show that he sustained seven gun shot injuries. Injury report of Parasram (Exhibit P-54) shows that he sustained one injury; injury report of Shyam Lal (Exhibit P-55) shows that he sustained two injuries and injury report of Bahadur (Exhibit P-56) shows that he sustained two injuries. Duration of such injuries was indicated to be 12 hours whereas their examination took place between 6.00 - 6.30 P.M. but in the case of Moola, he was medically examined at 7.00-8.00 P.M. on the same day but duration of his injuries was indicated to be fresh. Learned counsel referred to statement of Ramesh Chand (P.W.17), Medical Jurist and argued that there was mismatch of time between the injuries sustained by the members of complainant party (Exhibit P-51 to 56) and the injuries of accused Moola (Exhibit P-57) which is also evident from the fact that Exhibit P-57 indicated duration of injuries to be fresh. Learned trial court was therefore perfectly justified in not accepting plea of right of private defence. Learned trial court was therefore perfectly justified in not accepting plea of right of private defence. Plea of alibi set up on behalf of accused- appellant Gambhir also stands on sketchy grounds. Exhibit D-16A, certificate issued by Station Master, Railway Station Pigora merely states that Gambhir Singh, who is booking agent of Jacholi came to take tickets on 11.11.1985. He was present there from 10.00 A.M. and 11.00. The said Railway Station was hardly one K.M. away from the concerned railway station. Since the incident took place at 12.00 in the noon, therefore, plea of alibi could not be accepted. 18. It is argued that FSL report (Exhibit P-46) indicates that 6 lead pellets and two wad pieces marked as D-1 and D-2 in packet D were received. Apart from one 12 bore country made pistol marked as W/1, one 12 bore K.F. special cartridge case was found in the chamber of pistol which was marked as C/1. FSL Report indicates that three 12 bore country made firearms (W/1 to W/3) from packets G, X and Y wre serviceable firearms and had been fired sometime before, these were received in the laboratory. Microscopic examination revealed that one 12 bore cartridge case (C/1) has been fired from 12 bore country made pistol (W/1) from packet G recovered at the instance of Hubbi @ Hublal and one 12 bore cartridge case (C/3) has been fired from 12 bore country made pistol (W/2) from packet X recovered at the instance of Raghuveer. It is argued that apart from German Singh (P.W.2), there are four injured witnesses namely Shyam Lal(P.W.3); Bahadur Singh (P.W.4); Pritam Singh (P.W.5); and Parasram (P.W.6), who received injuries in the same incident, therefore, some inconsistencies, discrepancies or contradictions in their statements cannot be a ground to discard their testimony. Reliance has been placed upon judgment of the Supreme Court in Yogesh Singh Vs. Mahabeer Singh & Others, 2017 (11) SCC 195 . 19. It is argued that in the past also, accused party had been harassing complainant party and on number of times they had abducted Chutta and his family members. Chutta being head of the family was defending his family in all such litigations, therefore, there was motive with the accused party to commit murder of Chutta. 19. It is argued that in the past also, accused party had been harassing complainant party and on number of times they had abducted Chutta and his family members. Chutta being head of the family was defending his family in all such litigations, therefore, there was motive with the accused party to commit murder of Chutta. All the firearm injuries resulted into pallets wounds and were fired at the deceased and the injured from front side and on the chest. Learned counsel for the complainant produced certified copy of judgment dated 29.05.1984 passed by the Court of Chief Judicial Magistrate, Bharatpur wherein Raghuveer, Gambhir, Panna, Mahendra and Hubbi were convicted for offence under Sections 147, 148, 323, 325/149, 379 IPC and that court declined to extent benefit of probation to them owing to enormous enmity between two parties. It is, therefore, prayed that present appeal may be dismissed and impugned judgment and order passed by the trial court may affirmed. 20. We have given our anxious consideration to rival submissions and carefully scanned the material on record. 21. The first version given in the written report was that an altercation took place between two parties in the morning, which was pacified. But it was thereafter that the accused persons namely Raghuveer, Gambhir, Nihala, Basi, Mamar Singh, Mahendra, Panna, Babu, Moola came there armed with weapons. Raghuveer had a gun; Gambhir, Hubi, Nihala, Basi and Mamar Singh had katta and other accused had lathies. Raghuveer opened fire at Chutta from 'chapper' near the 'nohra'. Chutta sustained pellets injuries on his chest, neck, shoulders and fell on the ground. Thereafter, Gambhir opened fire at Pritam; Basi opened fire at Shyam Lal by katta. Bahadur at that time was returning on tractor. Nihala opened fire at him from behind. Moola inflicted lathi blow on the elbow of Shyam Lal. The informant, Vadda has appeared as P.W. 1 before the trial court and we have to therefore test the argument advanced on behalf of the accused-appellants that Vadda appearing as P.W. 1 before the trial court had changed the version given in the written report as also in his statement recorded under Section 161 Cr.P.C. What we find from his Court statement is that this witness stated that he returned back from agricultural field around 12.00 in the noon and found dead body of his brother Chutta lying on the 'chapper'. Several persons of village had assembled there. When he enquired from his son German Singh, he told that Raghuveer, Gambhir, Hubi, Mahendra, Moola, Babu, Bhanwar Singh, Shivo, Panna, Nihala, Basi, all 11 persons attacked Chutta. Raghuveer opened fire on Chutta by gun and killed him. Gambhir opened fire on Pritam. Basi opened fire on Shyam Lal by Katta. Nihala opened fire on Bahadur by katta. Then this witness stated that he got a written report written by German Singh. When they were about to go to Police Station, the police reached there and this report was given by them to the police then and there. His statement, thus, makes it abundantly clear that this witness was not an eye witness and was witness of hearsay. He mentioned in the written report what was narrated by German Singh because according to this witness German Singh was the eye witness. 22. German Singh is a crucial witness and has been produced as P.W.2. According to the prosecution, it was he, who had written the written report at the askance of his father Vadda. German Singh in his statement before the trial court stated that accused came from the side of nohra of Chutta. Raghuveer fired at Chutta from near 'neem' tree (which was indicated at place X in the site plan) and not from 'chapper' (which was indicated at place B in the site plan), which was the original version given in the written report. This witness further stated that as a result of aforesaid fire, Chutta sustained injuries on his chest, neck, shoulder and fell on the ground. Gambhir opened fire at Shyam Lal as a result of which he sustained pellet injuries on his face. Moola hit Shyam Lal by lathi on his elbow. Pritam, who was taking care of his buffaloes in the nohra, was fired at by Basi with katta. He sustained pellet injuries on his legs and ran away from there to hide himself behind Patore. At that time Bahadur was coming on tractor. Nihala opened fire at him from behind. He sustained pellet injuries on the back. This witness has been subjected to intensive cross examination wherein he stated that nohra of Ramjeet was just opposite of nohra of Chutta. Chutta, at that time, was sitting in the sun light near the wall of his nohra. There was a public way between two nohras. He sustained pellet injuries on the back. This witness has been subjected to intensive cross examination wherein he stated that nohra of Ramjeet was just opposite of nohra of Chutta. Chutta, at that time, was sitting in the sun light near the wall of his nohra. There was a public way between two nohras. The 'neem' tree from where the accused fired at Chutta was situated about 15 feet away from the nohra of Ramjeet. This witness admitted that his father Vadda was not present at the time of incident, who came later and he narrated entire incident to him. His father gave him one lined paper to write the report. Since initially prepared report was not legible, therefore, he kept that report and prepared another report. 23. Originally prepared report was torn then and there. In crossexamination this witness further stated that he did not inform the police about the preparation of the earlier report. This clearly shows that the report that was originally prepared was some other report than the report which was submitted as Exhibit P-1. Be that as it may, when this witness was confronted with his police statement (Exhibit D-2) and what was indicated in the site plan, especially about the place from where the accused came and the 'neem' tree from where the accused Raghuveer opened fire at the deceased, he failed to explain such discrepancy that as to why in the written report it was alleged that Raghuveer opened fire at the deceased Chutta from 'chapper' near the nohra of complainant party. German Singh stated that Chutta was sitting adjacent to the wall of nohra of Ramjeet in the sun light. When he was confronted with his police statement (Exhibit D-2) where he stated that Chutta was sitting in front of his own chapper and was smoking hukka, he failed to explain this discrepancy. 24. Shyam Lal (P.W.3) has also been cited as eye witness by the prosecution. He too has stated that accused came near 'neem' tree indicated in the site plan adjacent to nohra of Chutta. Raghuveer opened fire, which hit Chutta, who fell on the ground. When German Singh tried to reach Chutta, Basi opened fire at him. Moola hit him by lathi on elbow of his left hand. This witness and German Singh ran away from there. Raghuveer opened fire, which hit Chutta, who fell on the ground. When German Singh tried to reach Chutta, Basi opened fire at him. Moola hit him by lathi on elbow of his left hand. This witness and German Singh ran away from there. When Pritam tried to come near Chutta, Raghuveer opened fire at him and he sustained pellet injuries on his thigh and fingers of the leg. He also ran away from there. Bahadur was coming on his tractor at that time. Nihala opened fire at him from behind. He sustained injuries on his leg. In cross-examination when this witness was confronted with his police statement (Exhibit D-3), he failed to explain as to why therein, he did not mention that Raghuveer opened fire at the deceased from near 'neem' tree but he failed to explain the same. However, this witness stated that Ram Singh father of Raghuveer had lodged a criminal case against him in which this witness and Pritam were convicted and appeal against their conviction was still pending. He also admitted that charge sheet was filed against him in the case arising out of FIR registered by Nihala and a cross case was also registered wherein it was alleged that Raghuveer and Gambhir opened fire at Chutta. Matter was pending trial in the Court of Additional Sessions Judge No. 2, Bharatpur. 25. Bahadur Singh (P.W.4), yet another eye witness has stated that when he reached the scene of occurrence on his tractor, accused were already present there and upon seeing the tractor coming, they moved aside. When he crossed them, Nihala opened fire from behind as a result of which he sustained pellet injuries at the back. He saw that Raghuveer was having a gun; Gambhir, Nihala, Basi, Bhanwar Singh and Hubi had kattas. When he moved further he found that German and Shyam Lal were standing near Lal Kua. He also noticed that Shyam Lal had sustained pellet injuries on his thigh and leg. His uncle Chutta was lying dead there with multiple pellet injuries. Even this witness was confronted with his police statement (Exhibit D-4), but he failed to explain as to why it was mentioned therein that Raghuveer opened fire at deceased Chutta from near 'neem' tree. 26. Pritam Singh has appeared as P.W.5 and stated that Raghuveer opened fire at Chutta, as a result of which he fell on the ground. Even this witness was confronted with his police statement (Exhibit D-4), but he failed to explain as to why it was mentioned therein that Raghuveer opened fire at deceased Chutta from near 'neem' tree. 26. Pritam Singh has appeared as P.W.5 and stated that Raghuveer opened fire at Chutta, as a result of which he fell on the ground. When German Singh and Shyam Lal tried to come near him, Basi opened fire which hit Shyam Lal. Then Moola inflicted lathi blow on German Singh and Shyam Lal. He too ran away from there. When he tried to come near dead body of his uncle, Gambhir opened fire, as a result of which he sustained pellet injuries. He ran away from there and hide himself behind the nohra. At that time, Bahadur came on tractor and Nihala opened fire at him from behind. He sustained pellet injuries at his back. Even this witness was subjected to cross examination wherein when he was confronted with his police statement (Exhibit D-5) as to discrepancy of the location where Chutta was fired at, as stated in that statement and in the statement before the Court, he failed to give any explanation about this discrepancy. He could not explain as to why he did not mention in his police statement (Exhibit D-5) that nohra of the deceased also had a chapper. 27. Parasram (P.W.6) has also appeared as eye witness. He has made omnibus allegation that while Raghuveer had a gun, Bhanwar Singh, Gambhir, Hubi and Nihal had kattas. Chutta sustained firearm injuries when the accused Raghuveer opened fire on his chest. When German Singh and Pritam tried to save him, they also sustained firearm injuries. Suddenly Bahadur came on tractor he too sustained firearm injuries. This witness was also subjected to cross-examination and confronted with his police statement (Exhibit D-6) where he tried to state that Chutta was sitting near the nohra but he failed to explain that if it was so, why did he in his police statement mentioned that Chutta was sitting at his home. Prabhati (P.W.8) has stated that dead body of Chutta was lying near the nohra of Ramjeet. 28. Prabhati (P.W.8) has stated that dead body of Chutta was lying near the nohra of Ramjeet. 28. When we analyse evidence of aforesaid witnesses what becomes evident is that all of them have deviated from original version set up in the written report and maintained in their police statements recorded under Section 161 Cr.P.C. on two aspects namely that Chutta was sitting near the chapper of his own house/nohra and that the accused fired at Chutta from place B which was adjacent thereto. But when they appeared before the trail court they have changed not only the place where the fire was opened at Chutta by Raghuveer by saying that Raguveer opened fire at Chutta from place X near 'neem' tree, but also stated that Chutta was sitting near the wall of the room/nohra of Ramjeet in the sun light where he was ultimately fired at by Raghuveer. However on other aspects namely as to (i) the allegation of opening fire by katta against Gambhir at Shyam Lal as a result of which Shyam Lal sustained pellet injuries on his face; (ii) allegation of inflicting lathi blow against Moola on elbow of Shyam Lal; (iii) allegation of opening fire by katta against Basi at Pritam as a result of which he sustained pellet injuries on his thigh and the leg; (iv) allegation of opening fire against Moola at Bahadur from behind when he was coming on his tractor as a result of which he sustained pellet injuries at the back, testimony of all the eye witnesses is consistent and find corroboration from injuries reports of aforesaid injured (Exhibit P-53 to Exhibit P-56), which have also been proved by Dr. Ramesh Chandra (P.W.17). Insofar as allegation against Raghuveer of opening fire at the deceased is concerned, unfortunately, the prosecution witnesses themselves spoiled their case by changing their version, thus entitling him to benefit of doubt. In such like scenario, it may not be save to convict Raghuveer for the offence of murder of Chutta under Section 302 IPC simplicitor and other accused-appellants for the same offence with the aid of Section 149 IPC. Though the finding of learned trial court that the accused constituted unlawful assembly for committing other offences deserves to be maintained after taking into consideration the evidence in totality. Though the finding of learned trial court that the accused constituted unlawful assembly for committing other offences deserves to be maintained after taking into consideration the evidence in totality. We hardly find any strength in the arguments of the accused-appellants that the accused opened fire at the deceased and the injured in exercise of right of private defence and reliance placed on the injury report of Moola to substantiate this argument. It is clearly evident from the injury reports of Pritam (Exhibit P-53); Parasram (Exhibit P- 54); Shyam Lal (Exhibit P-55); Bahdaur (Exhibit P-56), there is apparent mismatch between the timing of injuries which the injured Pritam Singh, Parasram, Shyam Lal, Bahadur sustained and duration of which was indicated to be 12 hours viz.-a-viz. injuries sustained by Moola vide Exhibit P-57, which were described to be fresh when he was subjected to medical examination, which is also evident from statement of Dr. Ramesh Chandra (P.W.17), Medical Jurist. In our considered view, the trial court was perfectly justified in not accepting plea of right of private defence. Similarly, there is no force in the plea of alibi set up on behalf of Gambhir Singh. 12 bore gun was recovered at the instance of accused-appellant Raghuveer Singh vide Exhibit P-39 upon information furnished by him under Section 27 of the Indian Evidence Act (Exhibit P-38). 29. In view of above discussion, present appeal deserves to succeed in part and is accordingly partly allowed. Accused- appellant Raghuveer Singh is acquitted of the charge under Section 302 IPC and accused-appellants namely Gambhir Singh, Basi and Moola are acquitted of the charge under Section 302 read with Section 149 IPC. However, conviction of the accused-appellant Raghuveer for offence under Section 148 is maintained but he is sentenced to the period of imprisonment already undergone by him with fine of Rs. 25,000/- to be deposited with the trial court within three months, in default of payment of fine, he shall further undergo rigorous imprisonment of three months. Conviction of the accused-appellant Raghuveer for offence under Section 324/149 IPC is maintained but he is sentenced to the period of imprisonment already undergone by him with fine of Rs. 25,000/to be deposited with the trial court within three months, in default of payment of fine, he shall further undergo rigorous imprisonment of three months. Conviction of the accused-appellant Raghuveer for offence under Section 324/149 IPC is maintained but he is sentenced to the period of imprisonment already undergone by him with fine of Rs. 25,000/to be deposited with the trial court within three months, in default of payment of fine, he shall further undergo rigorous imprisonment of three months. Conviction of accused-appellant Raghuveer for offence under Section 323/149 IPC and Section 3/25 Arms Act is maintained, however, he is sentenced to period of imprisonment already undergone by him with fine so imposed by the trial court. Conviction of accused-appellants namely Gambhir Singh, Basi and Moola for offence under Section 148 IPC is maintained but they are sentenced to period of imprisonment already undergone by them with fine of Rs. 25,000/- each to be deposited with the trial court within three months, in default of payment of fine, each of them shall further undergo rigorous imprisonment of three months. Conviction of accused-appellants namely Gambhir Singh and Basi for offence under Section 324 IPC is maintained but they are sentenced to the period of imprisonment already undergone by them with fine to Rs. 25,000/- each to be deposited with the trial court within three months, in default of payment of fine, each of them shall further undergo rigorous imprisonment of three months. 30. Conviction of accused-appellant Moola for offence under Section 324 read with Section 149 IPC is maintained but he is sentenced to the period of imprisonment already undergone by him with fine of Rs. 25,000/- to be deposited with the trial court within three months, in default of payment of fine, he shall further undergo rigorous imprisonment of three months. Conviction of accused- appellants namely Gambhir Singh, Basi and Moola for offence under Section 323 IPC is maintained but they are sentenced to the period of imprisonment already undergone by them. All the sentences shall run concurrently. 31. It is directed that 50% amount of fine so deposited shall be paid to the widow of the deceased Chutta, if alive or else to his son(s) and daughter(s) in equal proportion and remaining 50% amount of fine shall be disbursed amongst injured in equal proportion.