JUDGMENT : Sudhir Agarwal, J. All these appeals have arisen from a common judgement dated 9.12.1999 and order dated 14.12.1999 passed by Sri A.K. Mishra, Additional Sessions Judge/Special Judge, (Dacoity Affected Area Act), Lalitpur. 2. Jail Appeal No. 8472 of 2008 has been preferred by accused-appellant Mithaiya under Section 383 I.P.C. through Senior Jail Superintendent, Agra whereas Criminal Appeal No. 109 of 2000 has been preferred by accused-appellant Rao Raja and Phool Singh and Criminal Appeal No. 251 of 2000 has been preferred by accused-appellant Kailash @ Mahendra Tiwari against the aforesaid judgement and order. 3. By the impugned judgement accused-appellants Mithaiya, Rao Raja, Phool Singh and Kailash @ Mahendra Tiwari have been convicted and sentenced to undergo life imprisonment under Section 302 read with Section 149 I.P.C. Accused-appellants Phool Singh and Rao Raja have been sentenced under Section 147 I.P.C. to undergo one year rigorous imprisonment, while accused-appellant Mithaiya and Kailash @ Mahendra Tiwari have been convicted and sentenced to two years rigorous imprisonment under Section 148 I.P.C. All the sentences of accused-appellants are directed to run concurrently. 4. In short, factual matrix of the case, appearing from First Information Report (hereinafter referred to as 'FIR') as well as evidence available on record, may be briefly stated as under. 5. A written report Ex.Ka-3 was submitted at Police Station, Girar, District Lalitpur on 28.12.1996 by PW-1 Kapoor Singh son of Mukundi stating that on 27.12.1996, Informant along with his brother Roop Singh Tanay were sitting at Chabutara out side their house. Besides them, other persons of the village, namely, Rajbhar Tanay, Kisori Lodhi, Mitthu Tanay, Jagannath Lodhi, Ramesh Tanay, Mohan Lal Lodhi and Jagat Tanay were also present and engaged in conversation. At about 6:00 P.M. Jagbhan Singh Thakur and Mithaiya Gaderiya, residents of Rasankhera, P.S. Badagaon (M.P.) armed with guns; Rao Raja Thakur and Phool Singh Thakur, residents of village Heerapur, P.S. Girar armed with Lathi; and Kailash Pandit armed with Axe, came over there from the side of temple. Jagbhan Singh Thakur exhorted Informant's brother, Roop Singh, saying that he had been acting as Informer of police against accused. Informant's brother denied the allegation levelled against him whereupon aforesaid five miscreants, after catching hold of Roop Singh, dragged him towards Jhakar. The Informant and others followed accused persuading them to leave Roop Singh but they did not pay heed. Jagbhan Singh Thakur exhorted Informant's brother, Roop Singh, saying that he had been acting as Informer of police against accused. Informant's brother denied the allegation levelled against him whereupon aforesaid five miscreants, after catching hold of Roop Singh, dragged him towards Jhakar. The Informant and others followed accused persuading them to leave Roop Singh but they did not pay heed. Accused-appellants took Roop Singh towards Jungle of Ramgadha in the field of Jhundare. Informant and other villagers were at the distance of 10 to 5 paces from the accused, when accused persons reached the aforesaid field, and Jagbhan opened fire on Informant's brother at about 7:00 P.M. Consequently, Informant's brother fell down and died instantaneously. Informant and others being scared, in order to save their lives, fled away and reached village. On account of fear, they remained in village throughout night and in the morning of 28.12.1996, along with villagers, went to the field of Jhundare and found dead body of Roop Singh, lying there. 6. On the basis of written report, (Ex.Ka-1), PW-6, Constable Muharrir Pramod Kumar prepared Chick FIR (Ex.Ka-3) and registered case in General Diary (hereinafter referred to as 'G.D.') as Case Crime No. 62 of 1996 under Sections 147, 148, 149, 302 I.P.C. After registration of FIR, Investigation commenced. PW-9, Investigation Officer, (hereinafter referred to as 'I.O.') Bhagwat Singh recorded statements of Informant, rushed to the place of incident and prepared inquest in his own hand writing which is Ex.Ka-7 on record. He also prepared relevant documents including Photonash, letter to C.M.O., letter to R.I., Specimen of seal etc; took in possession sample of simple and blood stained earth and prepared recovery memo, Ex.Ka-14, in respect thereof; took in possession shoes of deceased and handed over the same in the Supurdagi (custody) of Informant; prepared recovery memo with respect to shoes as Ex.Ka-5; inspected the place of occurrence and prepared site plan, Ex.Ka-16; and also prepared site plan of the place wherefrom accused had taken the deceased in presence of the witnesses and villagers. 7. Autopsy on the dead body of Roop Singh was conducted by PW-10 Dr. G.C. Behra on 29.12.1996 at about 3:00 P.M. On external examination of deceased, he found him to be of average body built; eyes were closed; mouth partly opened; Rigor Mortis had passed off from upper extremities and present in lower extremities; and abdomen slightly distended. 7. Autopsy on the dead body of Roop Singh was conducted by PW-10 Dr. G.C. Behra on 29.12.1996 at about 3:00 P.M. On external examination of deceased, he found him to be of average body built; eyes were closed; mouth partly opened; Rigor Mortis had passed off from upper extremities and present in lower extremities; and abdomen slightly distended. He found following ante-mortem injuries on the person of the deceased : (i) Multiple abraded contusion 11 cm x 5 cm on left side face close to left ear. (ii) Multiple abraded contusion 13 cm x 4 cm on the forehead. (iii) Lacerated wound 2 cm x 2 cm x skin deep on the head just behind back of the upper part of the right ear. (iv) Multiple abraded contusion 7 cm x 2 cm on right side face. (v) Abraded contusion 4 cm x 3 cm on right side of chin and mandible. (vi) Fire arm wound of entry 2.3 cm x 2.3 cm x cavity deep surrounded by a scareling area of 4.5 cm diameter. The margins of the wound is dark, ragged and inverted. The wound is situated 8 cm above the left antirio superior iliac spine and 16 cm from the umbilicus on the left lateral side of abdomen. The wound is directed medically and upwards. (vii) Fire arm wound of exit 5 cm x 5 cm x cavity deep with a portion of liver coming out and intestine visible. The margins lacerated and everted. The wound is situated on the right lateral side of abdomen, 14 cm above the right anterior superior iliac spine and 20 cm from the umbilicus. Two black corks and 6 (six) wadding pieces from the wound and 71 (Seventy one) pellets are recovered from the abdominal cavity sent to CMS, District Hospital, Lalitpur. (Emphasis added) 8. On internal examination, 11th and 12th ribs were found fractured on right side; right side of heart full, left side empty, heart contained 200 gm blood; peritoneum perforated; cavity contained 1 litre of blood; teeth 16/16; small intestine and large intestine perforated in places and filled with gas and blood; liver badly lacerated; gall bladder empty; both kidneys lacerated and weighed 200 gm., urinary bladder was half full. Doctor opined that cause of death was shock and haemorrhage as a result of ante mortem injuries. He prepared post mortem report, Ex.Ka-18. 9. Doctor opined that cause of death was shock and haemorrhage as a result of ante mortem injuries. He prepared post mortem report, Ex.Ka-18. 9. After transfer of first I.O., PW-9 Bhagwat Singh, investigation was undertaken and continued by PW-7 Ram Raj Singh Yadav, who recorded statements of witnesses Jagat Singh and Ramesh, arrested accused-appellant Rao Raja on 13.1.1997 and accused-appellant Kailash @ Mahendra Tiwari on 16.1.1997. He submitted charge sheet against accused-appellant on 1.4.1997 in Court under Sections 147, 148, 149, 302 I.P.C. and under Section 12 of U.P. Dacoity Affected Area Act 1983 (hereinafter referred to as 'D.A.A. Act, 1983'). 10. He submitted charge sheet against accused-appellant on 1.4.1997 in Court under Sections 147, 148, 149, 302 I.P.C. and under Section 12 of U.P. Dacoity Affected Area Act 1983 (hereinafter referred to as 'D.A.A. Act, 1983'). 10. Cognizance of the offence was taken by Special Judge, Lalitpur on 15.4.1997, under Sections 148, 302/149 I.P.C. Charges were framed against appellants Mithaiya, Rao Raja and Phool Singh which reads as under :- vkjksi ^^eS] fo".kq nŸk nqcs] ,pŒtsŒ,lŒ] vij l= U;k;k/kh'k@fo'ks"k U;k;ky; ¼MŒizŒJsŒ½ vf/kŒ yfyriqj vki feBS;k] jkojktk] Qwy flag dks fuEu izdkj ls vkjksfir djrk gwW %& izFker%& ;g fd fnukad 27@12@96 dks 'kke dks 7 ihŒ,eŒ ij vkius HkqUnksj yks/kh dk [ksr og gn xzke jex<+k Fkkjk fxjkj ij uktk;t etesa ds vki lnL; Fks vkSj uktk;t etesa dh lkekU; mnns'; dh vxzlkfjr iwfrZ djus ds fy, ;kfu :i flag dh e`R;q dkfjr djus ds fy, cYok fd;k vkSj vki ?kkrd gfFk;kj ;kuh cUnwd vkSj ykBh ftldks fd vkius ?kkrd gfFk;kj dh rjg ls mi;ksx fd;k] ls lqlfTtr FksA bl izdkj vkius vijk/k vUrZxr /kkjk 148 HkkŒnŒfoŒ fd;k gS tks esjs izlaKku esa gSA f}rh;r%& ;g fd vkius mijksDr fnukad] le; o LFkku ij ;g bjknk o tkucw> dj :i flag dh gR;k uktk;t xSax ds lnL; gksrs gq;s lkekU; mnns'; dks vxzlkfjr djus ds fy, gR;k dhA bl izdkj vkius vijk/k varZxr /kkjk 302 lgifBr /kkjk 149 HkkŒnŒfoŒ dk vijk/k fd;k gS tks esjs izlaKku esa gSA vr,o ,rn~}kjk vki yksxksa dks funs'k fn;k tkrk gS fd vki yksxksa dk fopkj.k mijksDr vkjksiksa esa bl U;k;ky; }kjk fd;k tkosxkA Charge I, Vishnu Dutt Dubey, HJS, Addl Sessions Judge/ Special Judge (D.A.A. Act) Lalitpur charge you Mithainya, Raoraja and Phool Singh as under: First: That on 27.12.96 in the evening at 7:00 pm you were the members of unlawful assembly at Jhundare Lodhi's field within the limits of Village - Ramgarha, P.S. - Girar, and in furtherance of your common intention i.e. for causing murder of Roop Singh, you armed with deadly weapon i.e. gun and lathi committed rioting. Thus, you have committed an offence under section 148 IPC, which is in my cognizance. Second: That on the aforesaid date, time and place, being members of unlawful assembly, you, in furtherance of its common intention, committed murder of Roop Singh, thereby committing an offence u/s 302 read with 149 IPC, which is in my cognizance. Thus, you have committed an offence under section 148 IPC, which is in my cognizance. Second: That on the aforesaid date, time and place, being members of unlawful assembly, you, in furtherance of its common intention, committed murder of Roop Singh, thereby committing an offence u/s 302 read with 149 IPC, which is in my cognizance. It is hereby directed that accused person you be tried by this court for the aforesaid charges. (English Translation by Court) (Emphasis added) 11. Accused-Appellant Kailash @ Mahendra Tiwari was charged separately vide order dated 23.9.1998 which reads as under :- vkjksi eS] fo".kq nŸk nqcs] ,pŒtsŒ,lŒ] vij l= U;k;k/kh'k@fo'ks"k U;k;k/kh'k ¼mŒizŒJsŒ vf/kŒ½ yfyriqj vki vfHk;qDr & dSyk'k mQZ egsUnz frokjh iq= izse ukjk;.k frokjh xkze fxjoka Fkkuk fxjoka tuin ckank ¼mŒizŒ½ ij fuEu vkjksi yxkrk gwW& 1- ;g fnukad 27@12@96 dks le; djhc 7 cts 'kke o LFkku [ksr >q.Mkjs yks/kh fLFkr ogn xzke jex 2- f}rh;r %& ;g fd mijksDr fnukad] LFkku o le; ij vius vU; lkfFk;ks ds lkFk ¼dkŒQVkŒ½ lnL; ds :i esa mlds mn~ns'; iwfrZ gsrq :iflag dh gR;k dhA bl izdkj vkius ,d vijk/k fd;k gS tks HkkŒnŒlaŒ dh /kkjk 302 ¼lgifBr /kkjk 149 ds vUrZxr n.Muh; vkSj bl U;k;ky; }kjk laKs; gS½ vr,o ,rn }kjk vki yksxksa dks funsZ'k fn;k tkrk gS fd vki yksxks dk fopkj.k mijksDr vkjksiks esa bl U;k;ky; }kjk fd;k tkosxkA^^ Charge ''I, Vishnu Dutt Dubey, HJS, Additional Sessions Judge/Special Judge (Dacoity Affected Areas Act), Lalitpur, charge you, the accused Kailash @ Mahendra Tiwari s/o Prem Narain Tiwari, Village - Girwan, PS - Girwan, District - Banda (U.P.) with the following : - 1. That on 27-12-96 at around 7:00 p.m. in the field of Jhundare Lodhi situated within the limits of Village - Ramgarha, PS - Girar, you were a member of an unlawful assembly and, in furtherance of its common intention, committed riot to murder Roop Singh s/o Makundi; and at that time, you were armed with a deadly weapon axe. In this way, you have committed an offence punishable u/s 148 IPC, which is in the cognizance of this court. 2. Secondly : that on the aforesaid date, place and time, you, having a member of the unlawful assembly and, in furtherance of its common intention, committed the murder of Roop Singh along with your other accomplices. In this way, you have committed an offence punishable u/s 148 IPC, which is in the cognizance of this court. 2. Secondly : that on the aforesaid date, place and time, you, having a member of the unlawful assembly and, in furtherance of its common intention, committed the murder of Roop Singh along with your other accomplices. Thus, you have committed an offence punishable u/s 302 IPC (read with Section 149 IPC), which is in the cognisance of this court. You are, hereby, directed that you, be tried by this court for the aforesaid charges. '' (English Translation by Court) (Emphasis added) 12. All the accused-appellants denied the charges and claimed trial. 13. In order to substantiate the charges levelled against accused-appellants, prosecution examined as many as 10 witnesses out of whom PW-1 Kapoor Singh, PW-2 Mitthu, PW-3 Jagat Singh and PW-4 Ramesh are the witnesses of fact. Rests are formal witnesses including Police Personnel and Medical Expert, who conducted autopsy on the body of deceased. PW-5 Har Narain Srivastava is Special Executive Magistrate, Lalitpur, who had conducted identification parade of accused-appellants and proved identification memo, as Ex.Ka-2. 14. PW-6 Constable Promod Kumar had registered FIR, Ex.Ka-3 on the basis of written report, Ex.Ka-1, and also proved copy of G.D., Ex.Ka-4. PW-9, Bhagwat Singh, is the first I.O. who proved Inquest report, Ex.Ka-7, as well as various letters, i.e. Photonash, letter to C.M.O., letter to R.I., copy of specimen seal, Ex.Ka-11 to 16. He has also proved material exhibits and recovery memo prepared in respect thereof. PW-7 Ram Raj Singh Yadav, Second I.O. has submitted charge sheet against accused-appellants in Court and proved the same as Ex.Ka-6. 15. PW-8 Constable Indra Kumar Singh has filed his affidavit averring that he had taken dead body of deceased, Roop Singh, along with Constable Umesh Babu to District Hospital for the purposes of post mortem. 16. PW-10, Dr. G.C. Behra, who had conducted autopsy on the dead body of the deceased on 29.12.1996, has proved post mortem report, Ex. Ka-18. 17. After closure of prosecution evidence, Trial Court examined accused appellants under Section 313 Cr.P.C. Appellant Phool Singh has stated that prosecution story is false. He has further stated that he is Thakur by caste and deceased was Lodhi. Ka-18. 17. After closure of prosecution evidence, Trial Court examined accused appellants under Section 313 Cr.P.C. Appellant Phool Singh has stated that prosecution story is false. He has further stated that he is Thakur by caste and deceased was Lodhi. Since he supported M.L.A. Bundela, another M.L.A. Devendra Singh, who is Lodhi had been helping the family of deceased and for that reason he has been falsely implicated. 18. Accused-Appellant Kailash @ Mahendra Tiwari has stated that prosecution story is false and pleaded ignorance in respect of various recovery memos. He has also stated that identification parade was faulty and he has been implicated in the case on account of political rivalry. His statement is that he used to go to the village in connection of contract work. One Dubey Ji had taken contract of Fishery on account of which Jagabhan Singh and Ramesh bore enmity with him and got him falsely implicated. 19. Likewise accused-appellant Mithaiya has also stated that prosecution story is false. He has pleaded ignorance about the preparation of various recovery memo and inquest. He has stated that he has been implicated in the case on account of political rivalry. He further stated that he had deposed against Informant as a witness in a revenue case going on in Sagar District and on account of that enmity he has been falsely implicated. 20. Accused-Appellant Rao Raja has reiterated the stand taken by other co-accused stating prosecution story to be false and concocted. He also expressed his ignorance about preparation of various recovery memos and inquest. He has further stated that he is Thakur by caste and deceased is Lodhi and since in election, he had been helping Pooran Singh Bundela, therefore, M.L.A. Devendra Singh had born enmity and has got him falsely implicated. 21. After assessing evidence, submissions of accused-appellants and relevant material on record, Trial Court has recorded its findings, briefly holding that :- (i) There is no contradiction in F.I.R. version and post mortem report. (ii) There is no evidence to prove that accused-appellants were implicated falsely or due to any malafide. (iii) Minor omissions or contradictions in site plan prepared by I.O. is not material and does not affect otherwise reliable evidence available on record. (ii) There is no evidence to prove that accused-appellants were implicated falsely or due to any malafide. (iii) Minor omissions or contradictions in site plan prepared by I.O. is not material and does not affect otherwise reliable evidence available on record. (iv) There is no such delay in lodging F.I.R. which may justify inference that F.I.R. is after consultation etc., inasmuch as, incident took place around 7:00 P.M. in the evening; Police Station is about 14 Kms. from the place of incident; accused were armed and it was winter season of December, 1996, hence, there is nothing unusual that villagers remained stayed at the village in night and came to report to Police in the morning on the next day. (v) The ocular testimony of PW-1, PW-2, PW-3 and PW-4 is categorically and substantially common and there is no material contradiction so as to disbelieve their ocular version who were present at the time of incident. (vi) Even part of statement of PW-2, before he became hostile, supports ocular version of other eye witnesses. Witnesses are clear in stating that Jagbhan Singh opened fire from his gun and this part of statement of PW-1 has neither shown contradictory nor any other plea or evidence has come on record to doubt the said statement. (vii) Though, PWs-3 and 4 had doubted presence of Phool Singh and Rao Raja but simultaneously, it is also said that two more persons, were present but they did not see or remember. Presence of Phool Singh and Rao Raja was mentioned by all the four eye witnesses in their statements, under Section 161 Cr.P.C. recorded by Police and PW-1 very categorically proved it. (viii) Place of incident and manner of murder of Roop Singh have been duly proved and all the accused-appellants as well as Jagbhan Singh, who has already died, all collectively with common intention and objective were present to commit the crime. (ix) The wrong description of accused-appellant Kailash @ Mahendra Tiwari is of no material consequence as he was identified and his identification remained unchallenged as no cross-examination was made on that aspect. (x) Criminal history of accused-appellants Phool Singh and Rao Raja as evident from Ex.Ka-5 and accused-appellant Kailash @ Mahendra Tiwari as evident from Ex.Ka-6 also support the prosecution case that they are the persons involved in several criminal cases. 22. (x) Criminal history of accused-appellants Phool Singh and Rao Raja as evident from Ex.Ka-5 and accused-appellant Kailash @ Mahendra Tiwari as evident from Ex.Ka-6 also support the prosecution case that they are the persons involved in several criminal cases. 22. Trial Court, consequently held that accused-appellants collected with common object with fire arms to commit an offence of murder of Roop Singh and accomplished offence by achieving their common objective. The accused-appellants possessed weapons as disclosed in FIR as alleged in statement of witnesses except Phool Singh and Rao Raja, who were armed with Lathi which is not treated to be a 'weapon' so as to bring in Section 148 I.P.C. and their cases would be covered under Section 147 I.P.C. Rest accused-appellants, namely, Mithaiya and Kailash @ Mahendra Tiwari had gun and Axe respectively and both are such weapons so as to attract Section 148 I.P.C. 23. Trial Court thus has convicted all the accused-appellants under Sections 302 read with Section 149 I.P.C. With respect of accused-appellants Phool Singh and Rao Raja, they have also been convicted under Section 147 I.P.C., and rest accused-appellants have been convicted under Section 148 I.P.C. and sentenced, as detailed above. It is this judgement and order passed by Trial Court where against aforesaid appeals have been preferred by four accused-appellants. 24. Sri I.K. Chaturvedi, Advocate has advanced his submissions on behalf of accused-appellant Kailash @ Mahendra Tiwari in Criminal Appeal No. 251 of 2000; Sri Nanhe Lal Tripathi, Advocate has advanced his submissions on behalf of accused-appellants Rao Raja and Phool Singh in Criminal Appeal No. 109 of 2000 and Smt. Archana Singh, Advocate (Amicus Curiae) has appeared and advanced her submissions on behalf of accused-appellant Mithaiya in Jail Appeal No. 8472 of 2008 while on behalf of State Sri Nikhil Chaturvedi, learned AGA has made his submissions in all the three appeals. 25. Learned counsel for appellants, in brief, while assailing judgement of court below, have raised following grounds :- (i) The incident admittedly had taken place at 7:00 p.m. on 27th December, 1996 while F.I.R. was lodged at 1:00 p.m. on 28th December, 1996, therefore, it is highly belated and lodged after due consultation so as to falsely implicate appellants. 25. Learned counsel for appellants, in brief, while assailing judgement of court below, have raised following grounds :- (i) The incident admittedly had taken place at 7:00 p.m. on 27th December, 1996 while F.I.R. was lodged at 1:00 p.m. on 28th December, 1996, therefore, it is highly belated and lodged after due consultation so as to falsely implicate appellants. (ii) Eye witnesses clearly stated that only Jagbhan Singh (now deceased) fired on the deceased, causing his death, while post mortem report shows other injuries but none of the alleged eye witnesses have said that any of the appellants caused any injury from the weapons or lathi they allegedly possessed at the time of incident. (iii) The statement of so called eye witnesses are contradictory, inasmuch as, PW-1 has named all the accused-appellants along with Jagbhan Singh (now deceased). Pws-2, 3 and 4 in examination in chief itself named only three persons i.e. Kailash @ Mahendra Tiwari, Jagbhan Singh (now deceased) and Mithaiya; therefore, conviction of Rao Raja and Phool Singh is clearly illegal. (iv) The prosecution story is ex-facie unbelievable inasmuch as several persons were sitting and engaged in conversation still three persons or five persons, exhorted the deceased, dragged him towards Jungle (field) and thereafter killed him but so many other villagers could not prevent them. They were more in number than accused-appellants and hence story of prosecution is seriously doubtful and unbelievable. Normally, in villages people help each other unlike urban people. (v) Post mortem report and F.I.R. version is not consistent. (vi) Particulars of Kailash @ Mahendra Tiwari were mentioned wrongly and identification was not conducted properly, hence has been falsely implicated. (vii) The incident took place after sun set in winter i.e. 27.12.1996 and there was no mention of any provision of light, hence, there was no occasion to the alleged eye witnesses to see and identify assailants and this aspect has been completely ignored by Trial Court. (viii) Informant/PW-1 is the son of deceased and being close relative, his evidence ought not to have been relied and other witnesses have their partisan stand and for reason their evidence could not have been relied upon. (ix) Prosecution has failed to prove its case beyond reasonable doubt and accused-appellants have been falsely implicated. 26. (viii) Informant/PW-1 is the son of deceased and being close relative, his evidence ought not to have been relied and other witnesses have their partisan stand and for reason their evidence could not have been relied upon. (ix) Prosecution has failed to prove its case beyond reasonable doubt and accused-appellants have been falsely implicated. 26. Sri Nikhial Chaturvedi, learned AGA on the contrary submitted that; (i) Delay in F.I.R. has been properly explained inasmuch as the incident took place after sun set, in winter days and due to terror of accused-appellants, villagers did not dare to proceed to Police Station in night itself for lodging F.I.R. Particularly when police station was about 14 Kms. Villagers on the next day, reached police station covering 14 Kms., by walking and then lodged report. (ii) Witnesses are consistent with regard to presence of all accused-appellants and alleged two witnesses, who were declared hostile, even they have not ruled out possibility of two more person while categorically mentioning names of three persons i.e. Jagbhan Singh, Mithaiya and Kailash @ Mahendra Tiwari. All the accused appellants came collectively with common object to commit offence of murder of Roop Singh, hence, they have rightly been convicted under Section 302 read with Section 149 I.P.C. (iii) Since armed possessed by accused-appellants have also been proved by witnesses, Court has rightly convicted Mithaiya and Kailash @ Mahendra Tiwari under Sections 148 I.P.C., and rest two under Section 147 I.P.C. (iv) In the cross-examination, nothing material could be extracted and evidence of eye witnesses has virtually remained unchallenged. (v) Mere relationship of PW-1/ Informant with deceased is no reason to discard otherwise and reliable credible deposition which has rightly been believed by Court below. 27. We have considered rival submissions, perused record. The issue up for consideration is "whether accused-appellants have rightly been convicted and sentenced by the Trial Court or not?" 28. Death of Roop Singh, brother of Informant, and PW-1, Kapoor Singh, on 27th December, 1996 in the evening around 6/7 P.M. has not been seriously challenged by any of the appellants. It is also not challenged before us that in the post mortem report, injuries found on the body of the deceased included fire arm injuries on vital part and as per PW-10, Dr. G.C. Behra, it was sufficient to cause death. It is also not challenged before us that in the post mortem report, injuries found on the body of the deceased included fire arm injuries on vital part and as per PW-10, Dr. G.C. Behra, it was sufficient to cause death. Besides, four contusions and one lacerated wound has also been found on the body of the deceased. Broadly, injuries on dead body found corroboration from injuries mentioned in Panchayatnama. Body of deceased was found in the field of Jhudare Lodhi and this fact has also been mentioned in the Panchayatnama and duly proved by eye witnesses PW-1 to PW-4 and also PW-9, who commenced investigation and prepared Panchayatnama proved as Ex. Ka-7. On this aspect also no serious argument has been advanced by any of learned counsels appearing for appellants. 29. Now coming to the aspect, whether there is no delay in lodging F.I.R. and it is such, which may doubt prosecution version so as to materially affect merit of prosecution case, we find that as a matter of fact, it is not disputed before us that from the place where dead body was found, distance of Police Station at about 14 Kms. This fact is mentioned not only in F.I.R. but also in the cross-examination of PW-1 where he has said :- esjk xkao [Sjiqjk Fkkuk fxjkj ls 13&14 fdyksehVj nwjh ij gSA My village Khairpura is located at a distance of 13-14 kilometres from Girar police station. (English Translation by Court) 30. Distance of Police Station has also been proved by PW-9 in Cross-examination stating as under :- Fkkus ls ?kVuk LFky dh nwjh djhc 14 fdyksehVj gSA The place of incident is situated at a distance of about 14 kilometres from the police station. (English Translation by Court) 31. Informant, PW-1, has also said that he covered distance on next morning starting from his village at around 9:00 A.M., on foot and reached at about 1:00 P.M. at Police Station. Time of registering report has also been verified by PW-6 Constable C.P. Pramod Kumar, who has proved Chick F.I.R. as Ex.Ka.-3. 32. Accused committed crime armed with fire arm, Axe and Lathi and had a criminal record also. With regard to Jagbhan Singh (now deceased), PW-7 in cross-examination has said; txHkku flag b'rgkjh eqfYte Fkk] Jagbhan Singh was a wanted criminal. (English Translation by Court) 33. 32. Accused committed crime armed with fire arm, Axe and Lathi and had a criminal record also. With regard to Jagbhan Singh (now deceased), PW-7 in cross-examination has said; txHkku flag b'rgkjh eqfYte Fkk] Jagbhan Singh was a wanted criminal. (English Translation by Court) 33. Pw-1 has stated about Mithaiya that he was old known Dacoit. The statement said feBS;k iqjkuk MdSr gS bls eS cgqr igys ls tkurk gwWA Mithaiya is an old Dacoit. I know him since long. (English Translation by Court) 34. The condition, as prevailed in village in December, 1996 has been detailed by PW-2 in his statement stating that there was terror in village of the Gang of Jagbhan Singh, Kailash @ Mahendra Tiwari and Mithaiya, and people used to stay in their houses in the evening by 6 or 7 and do not even sit in open. The relevant statement reads as under : bl lky rkius ds fy, Mj ds ekjs ykx ckgj ugha fudyrs FksA Fkk 'kke ls gh 6&7 yksx vius vius /kjks esa pys tkrs Fks 6&7 cts 'kke ds ckn dksbZ ckgj ugh cSBrk FkkA ml rkius okyh txg ls diwj flag dk ?kj yxHkx 50 xt nwjh gksxkA lkekU;r% 6&7 cts rd diwj flag] :i flag] jkt/kj] txr vkfn Hkh vius&vius ?kjksa esa pys tkrs FksA rFkk lc vius njokts cUn dj ysrs Fks D;ksafd xkao es ng'kr FkhA txHkku] dSyk'k] feBS;ka xsax dh ng'kr FkhA eS djhcu 5 cts 'kke dks vius [ksr ls ykSV vkrk FkkA That year no one came out of their houses to warm themselves with fire out of fear and people used to return to their respective homes at 6-7 in the evening only. No one used to venture outside after 6-7 in the evening. The house of Kapoor Singh was at a distance of about 50 yards from the spot where people used to go for warming themselves. In usual course Kapoor Singh, Roop Singh, Rajdhar, Jagat and others returned to their houses till 6-7 in the evening and used to close their entrances the village was in grip of fear. Villagers feared the gang of Jagbhan, Kailash, Mithaiya. I used to return from my fields at around 5 in the evening. (English Translation by Court) (Emphasis added) 35. Villagers feared the gang of Jagbhan, Kailash, Mithaiya. I used to return from my fields at around 5 in the evening. (English Translation by Court) (Emphasis added) 35. It is in this backdrop, when five persons committed a crime so boldly that they did not come with mask on their face but openly come in presence of several villagers, exhorted deceased, carried him as also dragged him to a sufficiently distance and thereafter, murdered him and giving threats to villagers, left the place without any obstruction show extent of fear and terror amongst villagers, and in these circumstances if no body dared to came to police station for lodging F.I.R. in the night by covering distance of almost 14 Kms, it cannot be said that conduct of Informant or other villagers, is unusual or that there is any deliberate or undue delay in lodging F.I.R. Even otherwise, delay in lodging F.I.R. itself will not be a ground to doubt otherwise reliable prosecution version, duly corroborated by trustworthy evidence. 36. So far as the question of delay in lodging FIR is concerned, it is well settled, if delay in lodging FIR has been explained from the evidence on record, no adverse inference can be drawn against prosecution merely on the ground that the FIR was lodged with delay. There is no hard and fast rule that any length of delay in lodging FIR would automatically render the prosecution case doubtful. In Ravinder Kumar & Anr. Vs. State of Punjab, (2001) 7 SCC 690 , Court has held; "The attack on prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. Of course a prompt and immediate lodging of the FIR is the ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Hence a delayed FIR is not illegal. Of course a prompt and immediate lodging of the FIR is the ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly FIR is not an unreserved guarantee for the genuineness of the version incorporated therein. When there is criticism on the ground that FIR in a case was delayed the court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of unconversantness is not too uncommon among urban people also. They might not immediately think of going to the police station. Another possibility is due to lack of adequate transport facilities for the informers to reach the police station. The third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquility of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. Yet another cause is the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident." 37. In Amar Singh Vs. Balwinder Singh & Ors., (2003) 2 SCC 518 , Court held : "In our opinion, the period which elapsed in lodging the FIR of the incident has been fully explained from the evidence on record and no adverse inference can be drawn against the prosecution merely on the ground that the FIR was lodged at 9.20 p.m. on the next day. There is no hard and fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful. There is no hard and fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful. It necessarily depends upon facts and circumstances of each case whether there has been any such delay in lodging the FIR which may cast doubt about the veracity of the prosecution case and for this a host of circumstances like the condition of the first informant, the nature of injuries sustained, the number of victims, the efforts made to provide medical aid to them, the distance of the hospital and the police station etc. have to be taken into consideration. There is no mathematical formula by which an inference may be drawn either way merely on account of delay in lodging of the FIR." 38. In this connection it will also be useful to take note of the following observation made in Tara Singh V. State of Punjab, (1991) AIR SC 63. "The delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are, one cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report. Of course, in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the courts should be cautious to scrutinize the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstance of each case." 39. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstance of each case." 39. In Sahebrao & Anr. Vs. State of Maharashtra, (2006) 9 SCC 794 , Court has held: "The settled principle of law of this Court is that delay in filing FIR by itself cannot be a ground to doubt the prosecution case and discard it. The delay in lodging the FIR would put the Court on its guard to search if any plausible explanation has been offered and if offered whether it is satisfactory." 40. From the above discussed exposition of law, it is manifest that prosecution version cannot be rejected solely on the ground of delay in lodging FIR. Court has to examine the explanation furnished by prosecution for explaining delay. There may be various circumstances particularly number of victims, atmosphere prevailing at the scene of incidence, the complainant may be scared and fearing the action against him in pursuance of the incident that has taken place. If prosecution explains the delay, Court should not reject prosecution story solely on this ground. Therefore, the entire incident, as narrated by witnesses, has to be construed and examined to decide whether there was an unreasonable and unexplained delay which goes to the root of the case of prosecution. Even if there is some unexplained delay, court has to take into consideration whether it can be termed as abnormal. Recently in Palani V State of Tamilnadu, Criminal Appeal No. 1100 of 2009, decided on 27.11.2018, it has been observed by Supreme Court that in some cases delay in registration of FIR is inevitable. Even a long delay can be condoned if witness has no motive for falsely implicating the accused. 41. In this case, as we have already said, delay has been properly explained. The contention, therefore that there is undue delay in lodging F.I.R. is not acceptable, hence rejected. 42. Even a long delay can be condoned if witness has no motive for falsely implicating the accused. 41. In this case, as we have already said, delay has been properly explained. The contention, therefore that there is undue delay in lodging F.I.R. is not acceptable, hence rejected. 42. Now coming to second aspect, whether there was sufficient light so as to enable witnesses to identify accused-appellants, we find that evidence on record is clear that though it was a time of sun set, still it was not dark but there was enough evening light to identify people, who even otherwise were known to each other mostly belonging to the same village. As per F.I.R. version as also statement of PW-1, around 6:00 P.M. on 27.12.1996 when Informant was sitting on a Chabutara near his house accompanied by Mitthu, Jagat Singh, Roop Singh, Rajdhar, Ramesh etc. five accused persons, namely, Jagbhan Singh, Mithaiya, Phool Singh, Rao Raja and Kailash @ Mahendra Tiwari came to that place. Jagbhan Singh (now deceased) and Mithaiya were having guns, Phool Singh and Rao Raja had lathies and Kailash @ Mahendra Tiwari had Axe. PW-2 has categorically said that he knew Jagbhan Singh (now deceased) and Mithaiya from earlier point of time, since and both were residents of nearby villages i.e. Rashan Khera which is about 3-4 Kms. from the village Khairpura where incident took place. 43. No question has been asked from PW-1 in cross-examination that whether there was sufficient light or not to enable PW-1 to recognize accused persons. On this aspect, we find that cross-examination of PW-2 is more detailed and he has categorically said that it was not a complete dark. PW-3 Jagat Singh also deposed in his cross-examination that it was a twilight time and people's faces were identifiable. He has said :- tc eqfYteku vk;s Fks ml le; FkksM+k FkksM+k va/ksjk gks jgk FkkA ml le; T;knk va/ksjk ugh Fkk 'kDysa fn[kkbZ nsrh FkhA T;knk nwj ls 'kDy fn[kkbZ ugh nsrh FkhA ml le; fnu Mwc gh jgk FkkA It was twilight when accused persons arrived. It was not too dark due to which their faces were visible. It was not possible to sight faces from a distance. The sun was just setting at that time. (English Translation by Court) (Emphasis added) 44. It was not too dark due to which their faces were visible. It was not possible to sight faces from a distance. The sun was just setting at that time. (English Translation by Court) (Emphasis added) 44. Almost similar statement was given by PW-4 also in cross-examination stating, when accused came, it was a little dark. The said statement reads as under :- tc eqfYteku diwj flag ds njokts ls x;s Fks ml le; FkksM+k vU/ksjk gks x;k FkkA It was twilight when accused persons left from the gate of Kapoor Singh. (English Translation by Court) 45. No question or even suggestion has been made on this aspect a light and thus it is evident that in winter season at about 6-7 P.M., it was a time when there was not a complete dark, though sun was setting but still there were sufficient light to see the faces of people. On this aspect, statements of witnesses PWs-2, 3 and 4 are almost consistent. PWs-1 to 4 are consistent naming Jagbhan Singh, Mithaiya and Kailash @ Mahendra Tiwari. What transpired thereat is also consistently stated by above eye witnesses, inasmuch as, weapons being carried by first three accused Kailash @ Mahendra Tiwari, Jagbhan Singh and Mithaiya are same as stated by all the four witnesses; i.e. Jagbhan Singh and Mithaiya were carrying gun and Kailash @ Mahendra Tiwari was carrying Axe. It is also consistently said that Jagbhan Singh exhorted deceased Roop Singh and statement of exhortation uttered by Jagbhan Singh is also stated similarly by all the four witnesses that deceased used to convey information to police against Jagbhan Singh. There is no otherwise evidence available on record and nothing contradictory has been pointed out or we find in cross-examination also. Therefore, we find that plea of lack of source of light has no force and it cannot be said that recognition of accused by eye witnesses was not possible. 46. The role assigned to accused person is also similar. Witnesses have clearly said that it is Jagbhan Singh who exhorted the deceased and what he exhorted has been said similarly by PWs-1 to 4. It is also consistent stand of PWs-1 to 4 that they took and also dragged Roop Singh towards Jhakar. They crossed Ramgadha jungle and reached field of Jhundare Lodhi wherein deceased was killed by opening fire by Jagbhan Singh. It is also consistent stand of PWs-1 to 4 that they took and also dragged Roop Singh towards Jhakar. They crossed Ramgadha jungle and reached field of Jhundare Lodhi wherein deceased was killed by opening fire by Jagbhan Singh. The distance travelled by accused in taking deceased from house of Informant to the place of death, as per site plan is about 1-1/2 Kms. 47. Sri I.K. Chaturvedi, learned counsel for appellants stated that eye witnesses somewhere said that deceased was dragged and somewhere said that he was lifted by accused, hence there is apparent contradiction. However, when we look to the distance, accused carried deceased from this house of the Informant to the place of murder, we find nothing so unusual or contradictory. PW-1 has categorically said that initially they lifted the deceased but thereafter made to walk. PW-2 has used the word that accused caught the deceased and took him towards Jhakar village and when reached field of Jhundare Lodhi, Jagbhan Singh fired and killed him. This distance travelled by accused before carrying deceased is also corroborated by statement of PW-2 in cross-examination, when he said as under :- tgka ys tkdj :i flag dks xksyh ekjh xbZ og LFkku xkao ds ml LFkku ls tgka ls :i flag dks idM+dj cnek'k ys x;s Fks nks fdyksehVj nwjh ij gSA The spot where Roop Singh was shot is at a distance of two kilometres from the place in village where he was abducted by the goons. (English Translation by Court) 48. We therefore, find no contradictory stand as to in what manner deceased was taken from the place where he was caught to the place where he was actually killed. In this, forcible taking of deceased covering such distance, he may have suffered some contusion, which may not have been noticed by Informant and other eye witnesses, who continuously went along with accused persuading them. In the pain, they may not have noticed it. This was not a scripted action so as to expect that every minor details can be noticed and explained by witnesses. 49. When such incident takes place, one cannot expect a scripted version from witnesses to show as to what actually happened and in what manner it had happened. In the pain, they may not have noticed it. This was not a scripted action so as to expect that every minor details can be noticed and explained by witnesses. 49. When such incident takes place, one cannot expect a scripted version from witnesses to show as to what actually happened and in what manner it had happened. Such minor details normally are neither noticed nor remembered by people since they are in fury of incident and apprehensive of what may happen in future. A witness is not expected to recreate a scene as if it was shot after with a scripted version but what material thing has happened that is only noticed or remembered by people and that is stated in evidence. Court has to see whether in broad narration given by witnesses, if there is any material contradiction so as to render evidence so self contradictory as to make it untrustworthy is Minor variation or such omissions which do not otherwise affect trustworthiness of evidence, which is broadly consistent in statement of witnesses, is of no legal consequence and cannot defeat prosecution. 50. In this case, all the above stated factors are minor inconsistencies and same do not affect the substance of testimony of PW-1 Kapoor Singh, PW-2 Mitthu, PW-3 Jagat Singh and PW-4 Ramesh. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observations, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. Court has to form its opinion about the credibility of witness and record a finding, whether his deposition inspires confidence. Exaggerations per se do not render the evidence brittle, but can be one of the factors to test credibility of the prosecution version, when entire evidence is put in a crucible for being tested on the touchstone of credibility. Court has to form its opinion about the credibility of witness and record a finding, whether his deposition inspires confidence. Exaggerations per se do not render the evidence brittle, but can be one of the factors to test credibility of the prosecution version, when entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statement of a witnesses cannot be dubbed as improvements as the same may be elaborations of the statements made by the witnesses earlier. Only such omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. [Vide: State Represented by Inspector of Police v. Saravanan & Anr., (2009) AIR SC 152; Arumugam v. State, (2009) AIR SC 331; Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334 ; and Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra, (2010) 12 JT 287 SC]. We therefore, find no force in this submission also. 51. Now the next thing to be considered is that PW-1 is relative of deceased and other eye witnesses are resident of same village, closely known to deceased, and therefore, their evidence should not be treated to be trustworthy. This submission is thoroughly misconceived. Mere relationship is not sufficient to discard otherwise trustworthy ocular testimony and it is now well settled law laid down in Dilip Singh v. State of Punjab, (1953) AIR SC 364. Court has held as under :- "A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause' for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts." 52. In Dharnidhar v. State of UP, (2010) 7 SCC 759 , Court has observed as follows :- "There is no hard and fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case. In the case of Jayabalan v. U.T. of Pondicherry, (2010) 1 SCC 199 , this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim" 53. In Ganga Bhawani v. Rayapati Venkat Reddy and Others, (2013) 15 SCC 298 , Court has held as under :- "11. It is a settled legal proposition that the evidence of closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (Vide: Bhagalool Lodh & Anr. v. State of UP, (2011) AIR SC 2292; and Dhari & Ors. v. State of U. P., (2013) AIR SC 308)." 54. It is settled that merely because witnesses are closed relatives of victim, their testimonies cannot be discarded. Relationship with one of the parties is not a factor that affects credibility of witness, more so, a relative would not conceal the actual culprit and make allegation against an innocent person. However, in such a case Court has to adopt a careful approach and analyse the evidence to find out that whether it is cogent and credible evidence. 55. Relationship with one of the parties is not a factor that affects credibility of witness, more so, a relative would not conceal the actual culprit and make allegation against an innocent person. However, in such a case Court has to adopt a careful approach and analyse the evidence to find out that whether it is cogent and credible evidence. 55. Moreover, in the present case, PW-1 Informant is not the solitary evidence. PWs-2, 3 and 4, are residents of same village and were engaged in conversion, in the evening, after completing their days work. It is quite a normal phenomena in villages and their statements are also natural and quite trustworthy. We find no reason to doubt the same. 56. Now coming to next aspect that conviction and sentence of Rao Raja and Phool Singh is not justified for the reasons that in F.I.R. names of five accused have been mentioned and the same has been corroborated by PW-1 also but in statement of PW-2, PW-3 and PW-4 only three persons are named i.e. Jagbhan Singh, Kailash @ Mahendra Tiwari and Mithaiya, we find that PW-2 in his examination-in-chief has categorically stated that he recognized Rao Raja and Phool Singh and both were not present at the time of incident. Relevant statements reads as under :- eS Qqyflag gkftj vnkyr dks ,oa jkojktk gkftj vnkyr dks eS tkurk gwa] ;s nksuks ?kVuk ds le; ?kVukLFky ij ugh FksA I know Phool Singh and Raoraja who are present in court, both of them were not present on the spot at the time of incident. (English Translation by Court) 57. Similar statement was also given by PW-4 in examination-in-Chief and it reads as under :- Qwyflag ,oa jkojktk Hkh vkt gkftj vnkyr gS eS bu nksuksa dks igpkurk gwaA ;s nksuks ?kVuk ds le; txHkku ds lkFk ekSds ij ugha vk;s Fks vkSj u gh gR;k dh ?kVuk esa 'kkfey FksA Phool Singh and Rao Raja are present in court and I know them. Both of them did not accompany Jagbhan at the spot when incident occurred nor were they involved in the murder. (English Translation by Court) 58. Even PW-3 specifically stated in examination-in-chief that Phool Singh and Rao Raja were not present at the time of incident. Both of them did not accompany Jagbhan at the spot when incident occurred nor were they involved in the murder. (English Translation by Court) 58. Even PW-3 specifically stated in examination-in-chief that Phool Singh and Rao Raja were not present at the time of incident. His statement reads as under :- ?kVuk ds le; Qwy flag ,oa jkojktk ?kVuk LFky ij ekStwn ugh FksA Phool Singh and Rao Raja were not present at the spot when the incident occurred. (English Translation by Court) 59. In fact after making this statement, all three witnesses i.e. PWs-2, 3 and 4 were declared hostile and thereafter, were allowed to be cross-examined by prosecution. 60. Pw-2 in his cross-examination by prosecution, said that if two more persons, besides Jagbhan Singh and Kailash @ Mahendra Tiwari were present, he did not notice. His statement reads as under:- eq>s txHkku] feBS;k ,oa dSyk'k ds lkFk ?kVuk ds le; nks vU; O;fDr Hkh gks rks geus /;ku ugh fn;kA jkojktk ,oa Qwyflag xzke ghjkiqj ds gSA I had not paid attention if any two persons in addition to Jagbhan, Methaiya and Kailash were present at the time of incident. Raoraja and Phool Singh are of village Hirapur only. (English Translation by Court) (Emphasis added) 61. With reference to statement given under Section 161 Cr.P.C. to police, prosecution cross-examined him that he has stated names of Rao Raja and Phool Singh to I.O. but he disputed the same and stated that he is not aware as to how I.O. has noted their names in his statement under Section 161 Cr.P.C. 62. Pw-3, however, admitted that he gave names of all five persons when statement was recorded by I.O. and that statement was correct. Relevant statement of PW-3 in this regard in cross-examination made by prosecution, reads as under :- bl ?kVuk ds laca/k esa njksxk th us esjs C;ku fy;s FksA eSus njksxk th dks eqfYteku Qwyflag jkojktk] feBS;k] dSyk'k ,oa txHkku ds uke crk;s Fks fd ;s yksx ?kVuk ds fnu 'kke N% cts vk;s FksA ;s c;ku eSus fcuk fdlh ncko ds fn;s FksA eS njksxk th dks lgh c;ku fn;s FksA Sub inspector recorded my statement in relation to this incident. I informed sub inspector that accused Phool Singh, Ravraja, Mithaiya, Kailash and Jagbhan arrived at the spot at 6 in the evening. This statement was given by me without any fear or pressure. I informed sub inspector that accused Phool Singh, Ravraja, Mithaiya, Kailash and Jagbhan arrived at the spot at 6 in the evening. This statement was given by me without any fear or pressure. I stated correct facts to the sub inspector. (English Translation by Court) (Emphasis added) 63. Subsequently, PW-3 retracted and said that whatever he has said before Court is correct and he has given a wrong statement to I.O. 64. Pw-4 also in cross-examination by prosecution, after his declaration as 'hostile', disputed having named Rao Raja and Phool Singh when statement was given to I.O. under Section 161 Cr.P.C., and said that he is not aware as to how I.O. noted those two names. He was categorical in stating that Rao Raja and Phool Singh were not present. 65. Trial Court in implicating Phool Singh and Rao Raja has relied upon statement of PW-1 and also statement of PW-2 that he did not notice if two more persons were present and also statement of PW-3 that he mentioned names of Phool Singh and Rao Raja before I.O. but subsequently, retracted but could give no reason for such retraction. 66. There is no other evidence to implicate Phool Singh and Rao Raja, inasmuch as, while taking deceased from place where he was caught to the place where he was killed, no witness has said that Rao Raja and Phool Singh hit or injured Roop Singh in any manner. No role of Phool Singh and Rao Raja, except that they accompanied three accused named by all four witnesses, has not been assigned. It is also not in dispute that Phool Singh and Rao Raja belong to village Heerapur. When PW-2 said that there was terror of gang of Jagbhan Singh, Kailash @ Mahendra Tiwari and Mithaiya, there is no evidence to show that such gang included Phool Singh and Rao Raja or that they were also member of such gang. Village Heerapur is about 4 to 5 Kms. from village Khairapur. PW-2 has not stated anywhere that he knew Rao Raja and Phool Singh from any earlier point of time though he has said specifically in respect of Jagbhan Singh and Mithaiya. Village Heerapur is about 4 to 5 Kms. from village Khairapur. PW-2 has not stated anywhere that he knew Rao Raja and Phool Singh from any earlier point of time though he has said specifically in respect of Jagbhan Singh and Mithaiya. He also said in cross-examination that he had seen Kailash @ Mahendra Tiwari with Jagbhan Singh several times who used to visit his village and knew him for last about one or two years but with respect to Rao Raja and Phool Singh nothing has been said. 67. In this backdrop, we are of the view that presence of Rao Raja and Phool Singh becomes seriously doubtful at the time of incident. Merely on the basis of F.I.R. version, which is not supported by three eye witnesses i.e. PWs-2, 3 and 4 that Rao Raja and Phool Singh were present at the time of incident and further when PW-1, star eye witness, has also not said anywhere that he knew these two persons from earlier point of time, it cannot be said that he could have recognized them immediately so as to mention their names in F.I.R. itself. It appears that their names have been included in F.I.R. on some hearsay. Evidence on record, in our view is not sufficient to commit them for the offences under Sections 302 and 149 I.P.C. as well as 147 I.P.C. and to this extent we have no manner of doubt to hold that prosecution has failed to prove beyond reasonable doubt presence of Phool Singh and Rao Raja, at the time of incident, and Judgement of Trial Court to this extent is erroneous and cannot be sustained. 68. Now coming to remaining three persons, as we have already said that they were present, manner in which incident took place, place and time when incident took place, everything stands corroborated by four eye witnesses i.e. PWs-1 to 4 and broadly their statements are consistent; no material contradiction could be shown by counsel for appellants and in cross-examination also nothing could be extracted so as to discredit aforesaid witnesses. The manner in which the two accused-appellants i.e. Mithaiya and Kailash @ Mahendra Tiwari have caused incident and manner in which Roop Singh has been killed also stand fortified from autopsy report. The manner in which the two accused-appellants i.e. Mithaiya and Kailash @ Mahendra Tiwari have caused incident and manner in which Roop Singh has been killed also stand fortified from autopsy report. Hence, we are of the view that prosecution has successfully proved their guilt, and, commission of offence under Sections 302/149, 147 and 148 I.P.C. is made out beyond reasonable doubts and Trial Court has rightly convicted accused for aforesaid offences. 69. In view of the above, we uphold conviction of accused-appellants Kailash @ Mahendra Tiwari and Mithaiya. 70. So far as sentence is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases. 71. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalized. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide : (Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323 , Sham Sunder vs. Puran, (1990) 4 SCC 731 , M.P. v. Saleem, (2005) 5 SCC 554 , Ravji v. State of Rajasthan, (1996) 2 SCC 175 ]. 72. [Vide : (Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323 , Sham Sunder vs. Puran, (1990) 4 SCC 731 , M.P. v. Saleem, (2005) 5 SCC 554 , Ravji v. State of Rajasthan, (1996) 2 SCC 175 ]. 72. In view of above propositions of law, the paramount principle that should be the guiding laser beam is that punishment should be proportionate to gravity of offence. 73. Hence, applying the principles laid down by Apex Court in the aforesaid judgments and having regard to the totality of facts and circumstances of case, nature of offence and the manner in which it was executed or committed, we find that punishment imposed upon accused appellants Kailash @ Mahendra Tiwari and Mithaiya by the Trial Court in the impugned judgment and order is not excessive or exorbitant and no occasion arises to interfere in the matter on the point of punishment imposed upon the appellants Kailash @ Mahendra Tiwari and Mithaiya. 74. In the result Jail Appeal No. 8472 of 2008 and Criminal Appeal No. 251 of 2000 are hereby dismissed and judgement and order dated 14.12.1999 passed by Additional Sessions Judge/Special Judge, (Dacoity Affected Area Act), Lalitpur in Session Trial No.11 of 1997 under Section 302 read with Section 149 and 148 IPC, Police Station Girar, District Lalitpur, is maintained and confirmed. Kailash @ Mahendra Tiwari, is on bail, therefore, he shall be arrested forthwith and sent to jail to serve out sentence. Mithaiya is already in jail and shall continue to serve out the remaining sentence. 75. Criminal Appeal No. 109 of 2000 (Rao Raja and another vs. State of U.P.), is allowed and judgment and order dated 14.12.1999 passed by Additional Sessions Judge / Special Judge, (Dacoity Affected Area Act), Lalitpur in Session Trial No.11 of 1997 to the extent Rao Raja and Phool Singh have been convicted and sentenced, are hereby set aside. Accused-appellants Phool Singh and Rao Raja are acquitted of charges levelled against them. They are in jail. If they are not required in any other matter or in some other case, they be released forthwith. 76. Accused-appellants Phool Singh and Rao Raja are acquitted of charges levelled against them. They are in jail. If they are not required in any other matter or in some other case, they be released forthwith. 76. Keeping in view provisions of Section 437-A Cr.P.C., accused-appellants Rao Raja and Phool Singh are directed to forthwith furnish a personal bond of the sum of Rupees twenty-five thousand each and two reliable sureties each in the like amount before Trial Court, which shall be effective for a period of six months, alongwith an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellants on receipt of notice thereof shall appear before Hon'ble Supreme Court. 77. Copy of this order alongwith lower Court record be sent to Court concerned forthwith for compliance. Compliance report be also sent to this Court. 78. A copy of this order be also sent to accused-appellants through concerned Superintendent of Jail for his intimation. 79. Smt. Archana Singh, learned Amicus Curiae has assisted the Court very diligently. We provide that she shall be paid counsel's fee as Rs.10,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad to Smt. Archana Singh, Amicus Curiae, without any delay and, in any case, within 15 days from the date of receipt of copy of this judgment. 80. Before parting, we put on record that all the advocates appearing for accused-appellants argued the appeals very efficiently and effectively and provided good assistance to the Court to examine these appeals in detail.