JUDGMENT : Per: Hon'b'le Rajiv Gupta,J. 1. Heard Shri Avinash Mani Tripathi, learned counsel for the appellant and Shri Saghir Ahmad, learned A.G.A. for the State respondent and perused the record. 2. Under assail in the present appeal is the judgment and order dated 28.1.2011 passed by Additional Sessions Judge, Court No.5, District Fatehpur, in S.T. No. 744 of 2006, State Vs. Master Arakh, whereby the appellant has been convicted under section 302/34 I.P.C. and sentenced to rigorous life imprisonment and fine of Rs. 10,000/-. In default of payment of fine to undergo additional imprisonment of six months, further convicted the appellant under section 307 read with section 34 I.P.C. and awarded sentence of rigorous imprisonment for five years and fine of Rs. 5000/-. In default of payment of fine to undergo additional imprisonment of three months and further convicted under section 201 I.P.C. and sentenced to undergo three years rigorous imprisonment and fine of Rs. 5,000/-. In default of payment of fine further undergo three months additional imprisonment. All the sentences to run concurrently. 3. Shorn of unnecessary details, the prosecution story as set out in the F.I.R. is that on 6.7.1994, the first informant alongwith his brother Narsingh Dev were proceeding towards Anjhi from Fatehpur where his sister is said to have been married. It is further alleged that four members of the Gang of Lala alias Dharmendar Singh were done to death on the basis of information given by him to the police, on account of which the said gang used to bear animosity against him. It is further alleged that at about 8.30 p.m. in the night, when he alongwith brother Nar Singh Dev reached near the bridge of the canal then four persons namely, Lala alias Dharmendar Singh, Pujari alias Chauhan alias Ram Swaroop, Jagannath and Master Arakh opened fire upon them due to which he sustained injury on his left leg and the shot fired by them also hit his brother Narsingh Dev. On alarm being raised, number of persons of the vicinity lightening torch reached at the place of incident, due to which the miscreants made their escape good. The informant is also alleged to have run away with his torch. It is further stated that in the torch light he had seen and identified the miscreants. On alarm being raised, number of persons of the vicinity lightening torch reached at the place of incident, due to which the miscreants made their escape good. The informant is also alleged to have run away with his torch. It is further stated that in the torch light he had seen and identified the miscreants. His brother Nar Singh Dev is also present at the place of incident and his condition is not known to him. 4. On the basis of the aforesaid written report, the F.I.R. has been registered at P.S. Bhasodhar, District Fatehpur vide case crime no. 80/1994, u/s 307 I.P.C. and the corresponding G.D. Vide G.D. Report No. 34 dated 6.7.1994 at 2350 hrs. has been drawn by the head constable, Lotan Ram, P.W.5 which have been marked as Exh. Ka 1 and Exh. Ka 12 respectively. 5. The aforesaid F.I.R. is said to have been lodged in the presence of Ram Murti Kannaujiya, Investigating Officer who had taken over the process of Investigation. After lodging of the report, the first informant who is also an injured witness was sent for medical examination through police constable, Ram Bahadur Singh and Som Dev Dube. 6. The said victim has been medically examined by Dr. Naresh Chandra, C.W.4 at District Hospital, Fatehpur on 7.7.1994 at 2.30 p.m. and the Doctor has found the following injuries on the person of the victim. 1. Punctured wound size 6.0 cm X 5.0 C.M. Area of the posterior aspect of the left shin (leg). Muscle deep reddish in colour. K.U.O. Advised X-ray. 13.0 cm below from the left popliteal & Fossa Thereafter on 7.7.1994, the Investigating Officer is said to have recorded the statement of injured witness and visited the place of incident and prepared the site plan and inspection note which has been marked as Exh. Ka 3. 7. On 8.7.1994 an information was received through one Jagdamba Prasad at the police station about finding of dead body in the canal, on which the Investigating Officer reached at the place of incident and after drawing the body from the canal conducted the Panchayatnama on the person of the deceased which has been marked as Exh. Ka 4 and prepared photo Nash, challan nash, Chithi R.I. and Chithi C.M.O, and other relevant police papers and thereafter sent the body for post mortem through constable, Ram Kishor Tiwari. 8. Ka 4 and prepared photo Nash, challan nash, Chithi R.I. and Chithi C.M.O, and other relevant police papers and thereafter sent the body for post mortem through constable, Ram Kishor Tiwari. 8. An autopsy was conducted on the person of the deceased on 8.7.1994 by Dr. K.N. Saxena, P.W.3 who has found the following injuries on the person of the deceased: 1. Gun shot wound entry 4.00 cm x 3.00 cm. X brain cavity deep on left side of face. Piece of ear absent No blackening and scorching present, margin inverted. Direction of wound - upward- backwards and towards right. 2. Gun shot wound of exit 12 cm X 8 cm X connected with injury No.1, brain matter absent and Right parietal, frontal and right occipital bone found fractured and present in pieces. 3. Gun shot wound of entry 4 x 3 cm x Chest cavity deep on right side of back just near the T12 vertebrae. No blackening and scorching present. Margin inverted and direction - Forward and towards right 4. Multiple gun shot wound of exit in an area of 10 cm X 6 cm of the right side of chest just below right nipple. 5. Gun shot wound of exit 5 cm x 4 cm cavity deep in middle of chest. Underline sternum bone absent in pieces. Injury No. 3 is connecting with the injury no. 4 and 5. Two (2) wadding pieces recovered from right chest cavity. 6, 7 and 8 ribs of right side fractured. Pleura was lacerated. Right lung lacerated. Right chest cavity contained about one litre of clotted blood. Peritoneum was lacerated. Abdominal cavity contain about ½ litre blood. Small intestine lacerated. Gall bladder lacerated and the stomach was empty. 9. The Investigating Officer after collecting the material evidence submitted charge sheet against the aforesaid four accused persons. Pleura was lacerated. Right lung lacerated. Right chest cavity contained about one litre of clotted blood. Peritoneum was lacerated. Abdominal cavity contain about ½ litre blood. Small intestine lacerated. Gall bladder lacerated and the stomach was empty. 9. The Investigating Officer after collecting the material evidence submitted charge sheet against the aforesaid four accused persons. However, during course of trial, the accused persons, namely, Lala alias Dharmendar Singh, Pujari alias Chauhan alias Ram Swaroop, Jagannath had died, as such, the case was abated against them however against accused Master Arakh the case was committed to the court of Sessions and registered as S.T. No. 744 of 2006 from where it was made over for trial to the court of Additional Sessions Judge, court No. 5, Fatehpur and after hearing the prosecution and the accused on the point of charge on 3.1.2007, the appellant Master Arakh was charged for the offence under section 302/34,307/34 and 201 I.P.C. The appellant did not plead guilty of all such charges and claimed to be tried. 10. The prosecution in order to bring home the guilt against the appellant has produced as many as five prosecution witnesses, P.W.1, Shiv Deo Mishra who is the first informant and eye witness of the incident. P.W.2, Ram Babu Pandit who is said to have subsequently reached at the place of incident and informed by the P.W.1 about the incident. P.W.3, Dr. K.N. Saxena who has conducted the post mortem and proved the same. P.W.4, Ram Murti Kannaujiya, Investigating Officer of the case and P.W.5, Lotan Ram, Head constable who is said to have drawn the chik F.I.R and corresponding G.D. Thereafter as many as five witnesses have been produced as court witnesses. C.W.1, Subhash Chandra Singh, Pharmacist, District Hospital, Fatehpur, C.W.2, Sarvesh Kumar Shukla,Technician, District Hospital, Fatehpur, C.W.3, Jagdamba Prasad who is said to have informed the police about the dead body of the deceased and C.W.4, Dr. Naresh Chandra who has examined the injuries of the victim, first informant. Shiv Deo Mishra. 11. After completion of the prosecution evidence, the statement of the appellant under section 313 Cr.P.C. has been recorded in which the appellant has denied the incident and stated that on account of animosity, he has been falsely implicated in the present case. Naresh Chandra who has examined the injuries of the victim, first informant. Shiv Deo Mishra. 11. After completion of the prosecution evidence, the statement of the appellant under section 313 Cr.P.C. has been recorded in which the appellant has denied the incident and stated that on account of animosity, he has been falsely implicated in the present case. He further stated that prior to this incident his uncle who is also resident of the village of first informant had illegally grabbed the land belonging to his uncle and when he raised objection then the first informant got him falsely implicated in the present case. He has further stated that even prior to this incident in the year 2009 the first informant had got him falsely implicated in a case under section 307 I.P.C. in which he has been acquitted. The defence has not led any evidence either oral or documentary. 12. After considering the submissions made by the learned counsel for the parties and scrutinising the oral as well as documentary evidence on record, the trial court returned the finding of conviction and awarded the aforesaid sentence to the appellant, hence the present appeal. 13. Learned counsel for the appellant has submitted that the prosecution has miserably failed to prove its case beyond reasonable doubt against the appellant and the prosecution case rests on the sole testimony of P.W.1 whose presence is highly doubtful at the time and place of incident. Learned counsel has further submitted that P.W.2, Ram Babu Pandit is not an eye witness of the incident and he has reached at the place of incident after hearing the fire shots and informed about the incident by the first informant and is infact a hearsay witness. He has further argued that P.W.2, Ram Babu Pandit in his cross examination has clearly stated that he is not an eye witness of the incident and P.W.1, Shivdeo Mishra had not informed him regarding the name of the accused. As such, testimony of P.W.2 is not of much relevance. Learned counsel for the appellant has further submitted that as per the prosecution case as many as four accused persons are said to have opened fire upon the deceased, however, from the perusal of post mortem report, it appears that the injuries found on the person of the deceased are result of single fire arm injury. Learned counsel for the appellant has further submitted that as per the prosecution case as many as four accused persons are said to have opened fire upon the deceased, however, from the perusal of post mortem report, it appears that the injuries found on the person of the deceased are result of single fire arm injury. Learned counsel for the appellant has further submitted that the entire prosecution story is based on sole testimony of P.W.1 whose testimony does not fall within the category of the wholly reliable witness and therefore by placing implicit reliance upon his testimony the conviction can not recorded. However, learned trial court has not appreciated the evidence in right perspective and has illegally returned the finding of conviction against the appellant which can not be sustained in the eye of law. Therefore, the present appeal is liable to be allowed. 14. Learned A.G.A., on the other hand, has contented that the prosecution has proved its case to the hilt against the appellant. The F.I.R. in the present case has been promptly lodged which gives natural version of the incident. P.W.1, Shivdeo Mishra is the injured witness and the prosecution has successfully proved that he had received injury in question during the course of present incident and the same has been medically examined through police constable on the date of incident itself i.e. 7.7.1994 at 2.30 a.m., therefore, there can not be any doubt about the presence of the said witness at the place and time of incident who in all material particulars has supported the prosecution story and the defence has not been able to point out any material contradiction, embellishment or inconsistency in his statement. Therefore, his testimony falls in the category of wholly reliable witness and the view of the trial court in convicting the appellant by placing implicit reliance of his testimony is fully justified and need not be interfered with by this Hon'ble Court. Learned A.G.A. has further submitted that the medical report completely corroborates the prosecution story and the defence has not been able to elicit any conflict between occular testimony of the witness and the medical report which completely supports the prosecution story. Learned A.G.A. has further submitted that the medical report completely corroborates the prosecution story and the defence has not been able to elicit any conflict between occular testimony of the witness and the medical report which completely supports the prosecution story. Learned A.G.A. has further submitted that the evidence adduced by P.W.1 completely corroborates the prosecution story and establishes the time, place and manner of the incident and the defence has not been able to point out any material contradiction or ambiguity in the said circumstances. 15. Before considering the rival submissions made at the bar, it would be useful to bring on record the statement of P.W.1, Shivdeo Mishra on whose testimony the whole prosecution case hinges. 16. P.W.1, Shivdeo Mishra in his examination-in-chief has clearly stated that on 6.7.1994 he alongwith his brother Nar Singh Dev was going towards Anjhi where his sister used to reside and when at about 8.30 p.m. in the evening they reached near the bridge of canal, four persons namely, Lala alias Dharmendar Singh, Pujari alias Chauhan alias Ram Swaroop, Jagannath and master Arakh emerged from the bushes armed with gun and in the torch light he had seen the accused opening fire upon him and his brother which hit his brother and as soon as he turn around to make his escape good he was hit on his left leg. On alarm being raised by him number of persons lightening their torches reached at the place of incident then the miscreants ran away. He has further stated that when he reached near Budharamau, number of persons met him and after reaching Buddharamau, he got the F.I.R scribed by one Ravi Tiwari and on the basis of said written report the F.I.R was lodged and thereafter he was brought for medical examination to Fatehpur hospital where his injuries were examined and he was given medical treatment. He has further stated that his brother died on that very day and his dead body was thrown in the canal. 17. He has further stated that his brother died on that very day and his dead body was thrown in the canal. 17. The defence has cross examined the said witness at great length but has not been able to elicit any material contradiction or inconsistency in his statement and he has supported the prosecution story in all material particulars and the defence has not been able to rule out his presence at the time of incident moreso the defence has not challenged his presence at all and from his testimony it is clinchingly established that he sustained injuries on his person during the course of present incident. Being an injured witness he has narrated the prosecution story in most natural manner and has clinchingly established the time, place and manner of the incident. The defence has not seriously challenged the nature of his injuries and from the evidence led by the prosecution in the form of statement of C.W.4, Dr. Naresh Chandra who has proved the injuries, there is not an iota of doubt that the said witness has received injury in the incident in which his brother has been done to death by the appellant and the testimony adduced by him inspires confidence, as such, we are of the opinion that his testimony falls within the category of wholly reliable witness and the argument of learned counsel for the appellant that the presence of P.W.1 is highly doubtful does not hold good. Even from the attending facts and circumstances of the case and unimpeachable testimony of the prosecution witness particularly his medical report which completely supports the prosecution story there can not be any doubt about the presence of the first informant, P.W.1 at the time of incident. 18. Further submission of learned counsel for the appellant that the injuries found on the person of the first informant were self inflicted and have not been caused during the course of incident as alleged also does not have much substance in view of the fact that the said injuries have been examined on the same day i.e. 7.7.1994 at 2.40 a.m. and at the time of lodging of the F.I.R. and its corresponding G.D mention of said injuries has been made and the said injuries have been got examined at District Hospital,. Fatehpur through constable and C.W 4, Dr. Fatehpur through constable and C.W 4, Dr. Naresh Chandra in his statement has clearly stated that the said injuries could have been caused on 6.7.1994 in between 8.00 to 8.30 p.m. and may be result of fire arm. 19. Thus, we are of the opinion that in view of clear and clinching evidence regarding the injuries on the person of the victim, there can not be any doubt that the victim has received the said injuries during the course of incident in which is brother has been done to death. Moreover, the defence has not seriously challenged the injuries of the victim in the cross examination by drawing the attention of the witness in respect of the same. Therefore, in view of settled principles of law no adverse inference can be drawn and thus we are of the opinion that the prosecution has clinchingly and unerringly proved his injuries by adducing cogent and reliable evidence and by no stretch of imagination the injuries can be said to be self inflicted as argued by the learned counsel for the appellant. The presence of P.W.1 at the time and place of incident and he being an eye wittiness is further fortified from the circumstances that the F.I.R. in the present case has been lodged under section 307 I.P.C. and not under section 302 I.P.C. Had P.W.1 not been present at the time and place of incident and not been an eye witness, then the F.I.R. could not have been lodged under section 307 I.P.C. with positive assertion that his brother has received fire arm injuries on his person but his actual physical condition is not known and only on finding his dead body on 8.7.1994 from the canal the case was converted under section 302/201 I.P.C. Thus, we find that P.W.1 has only narrated what he has actually seen and nothing beyond that with further fortifies the truthfulness of the said witness and from his unimpeachable testimony the case of the prosecution stands proved to the hilt. 20. In view of forgoing discussions, we are of the opinion that the testimony of P.W.1 is of sterling quality and the prosecution has proved its case beyond reasonable doubt against the appellant. Even the medical report completely corroborates the prosecution story. 20. In view of forgoing discussions, we are of the opinion that the testimony of P.W.1 is of sterling quality and the prosecution has proved its case beyond reasonable doubt against the appellant. Even the medical report completely corroborates the prosecution story. Therefore, we do not find any good reason to make any interference in the finding of conviction and sentence recorded by trial court for the offences charged with against the appellant. As such, the appeal lacks merit and is liable to be dismissed. 21. The appeal is accordingly dismissed. 22. The appellant is on bail. His bail is cancelled and sureties discharged. The C.J.M. Fatehpur shall cause the appellant Master Arakh to be arrested and lodge him in jail to serve out the sentences. 23. Let the copy of this order be sent to learned trial court for information and necessary compliance. 24. The judgment be certified and placed on record.