JUDGMENT : Dinesh Kumar Singh, J. Heard Sri V.P. Srivastava, learned Sr. Advocate & Sri V.M. Zaidi, learned Sr. Advocate assisted by Sri Dileep Kumar and Sri N.I. Jafri, learned counsel for the appellants, Sri Satish Trivedi, learned Sr. Advocate assisted by Sri Ajay Kumar Pandey, Sri Sudhir Kumar Agarwal, learned counsel for the complainant and Sri S.K. Pal, learned Government Advocate assisted by Sri J.P. Tripathi, learned A.G.A. for the State. 2. This Criminal (Capital) Appeal No. 205 of 2018 (reference no. 8 of 2018) has been preferred against the judgment and order dated 20.11.2018 preferred by accused appellants, Sarfaraz Ali, Md. Sahid, Sadiq and Rashid against the judgement and order dated 20.11.2018 passed in S.T. No. 957 of 2010 and in connected S.T. No. 9 of 2011. 3. Criminal Appeal No. 206 of 2018 has been preferred by accused, Arshad against the same judgement passed in S.T. No.9 of 2011. 4. Criminal Appeal No. 207 of 2018 has been preferred by accused appellants, Farukh and Mumtaj against the same judgment in S.T. No. 9 of 2011. 5. In the said combined judgement of S.T. No. 957 of 2010 and S.T. No. 9 of 2011, the trial court has convicted the appellants Sarfaraz Ali, Md. Sahid, Sadiq, Arshad, Rashid, Farukh and Mumtaj under Section 302 read with Section 149 I.P.C. and sentenced with death penalty directing them to be hanged till death and fine of Rs. 1,000/- each and in default of payment of fine, one year additional R.I.; under Section 148 I.P.C., all of them have been sentenced with three years R.I. and fine of Rs. 1,000/- and in default of payment of fine, six months additional S.I. each; under Section 452 I.P.C., all of them have been sentenced with three years' R.I. and fine of Rs. 1,000/- and in default of payment of fine, six months S.I. each; under Section 307 I.P.C. read with Section 149 I.P.C., they have been awarded life imprisonment. Accused appellants, Sarfaraz Ali and Md. Sahid have been further convicted and sentenced with three years R.I. and find of Rs. 1,000/- under Section 25 of Arms Act in S.T. No. 958 of 2010 and S.T. No. 959 of 2010 respectively in the same judgment. 6. Accused appellants, Sarfaraz Ali and Md. Sahid have been further convicted and sentenced with three years R.I. and find of Rs. 1,000/- under Section 25 of Arms Act in S.T. No. 958 of 2010 and S.T. No. 959 of 2010 respectively in the same judgment. 6. The trial court has passed combined judgment in S.T. No. 957 of 2010 along with S.T. No. 9 of 2011, S.T. No. 958 of 2010 and S.T. No. 959 of 2010 on 20.11.2018. 7. Since all the appeals mentioned above arise out of the same common judgment, in the interest of justice, all the three appeals are being disposed of jointly by us. 8. The prosecution case as disclosed in the F.I.R. is that the brothers of informant i.e. Naseem and Khalil (P.W.3) had had a quarrel about seven to eight days prior to the present occurrence with Sadiq S/o Iqbal of the same village which was got settled due to intervention of the villagers but Sadiq had given a threat that he would see them. Due to the said animosity on 27.2.2010 at about 2:00 p.m., Sadiq (A-1), his brother, Sahid (A-2) and others of his family i.e. Arshad (A-3) S/o farzullah, Rashid (A-4) S/o Isfaq, Sarfaraz (A-5) S/o Shaukat, Farukh (A-6) S/o Islam, Mumtaj (A-7) S/o Ismail, all residents of village, Harsauli came there, out of whom, Sadiq was armed with country-made gun and rest of them were armed with country-made pistols, at the house of informant and Sadiq abusingly uttered 'sale naseem tujhe dekhna hai' and entered into the informant's house and started making fire with an intention to kill in which his brother, Naseem, Khalil, Raiyyan and his nephew, Sakir received fire arm injury. Informant was also fired upon but he saved his life by fleeing from there and concealing himself. These accused believing that all the brothers of the informant and his nephew had died, went away from there. This occurrence was witnessed by Ilias S/o Yaqoob R/o Makhyali who was informant's guest and ladies of the house i.e. Vakeela, Shabnam and Nerbun. The informant had taken brother, Naseem to government hospital, Muzaffarnagar where he was declared dead while the other brother, Khalil was fighting for his life. The medical examination was also conducted of injured, Raiyyan and Sakir. This occurrence was witnessed by Ilias S/o Yaqoob R/o Makhyali who was informant's guest and ladies of the house i.e. Vakeela, Shabnam and Nerbun. The informant had taken brother, Naseem to government hospital, Muzaffarnagar where he was declared dead while the other brother, Khalil was fighting for his life. The medical examination was also conducted of injured, Raiyyan and Sakir. Due to this indiscriminate firing made by the accused, terror had gripped the village and the villagers had closed their doors and children and ladies were running here and there. No one could summon up courage to stop the accused from assaulting and, thereafter, the assailants fled away firing. 9. P.W.4, Constable Sahab Singh has stated in examination-in-chief that on the said written report, Exhibit Ka-1 being given at P.S., Shahpur on 25.02.2010 at 16:30 hours (4:30 p.m.), a Case Crime No. 163 of 2010 under Sections 147, 148, 149, 452, 307, 302 I.P.C. and under Section 7 of Criminal Law Amendment Act was registered against accused No.1, Sadiq, accused no.2, Sahid S/o Iqbal, accused no.3, Arshad S/o Farqula, accused no.4, Rashid S/o Ishfaq, accused no.5, Sarfaraz S/o Shaukat, accused no. 6, Farukh S/o Islam, accused no. 7, Mumtaj S/o Ismail all residents of village, Harsauli, P.S. Shahpur, District Muzaffarnagar by Constable Sahab Singh (P.W.4) who prepared chik F.I.R., Exhibit Ka-2 and made entry of this case in G.D., Exhibit Ka-3 at report no. 33 at 16:30 hours on 25.02.2010. 10. Sahab Singh (P.W.4) was provided recovery memo by the then S.H.O., Pramod Panwar, P.W.8 on 27.02.2010 of one country-made pistol of 12 bore, one country-made pistol of 315 bore, two cartridges of 12 bore and one cartridge of 315 bore which were recovered from accused, Sarfaraz Ali and Md. Sahid respectively and on the basis of the same, he registered Crime No. 165 of 2010 under Section 25/27 of Arms Act against accused, Sarfaraz and Crime No. 166 of 2010 under Section 25 Arms Act against accused Sahid. The chik F.I.R. of this case was prepared by him which is Exhibit Ka-4 and the same is paper no. 4 in file of S.T. No. 958 of 2010 (State Vs. Sarfaraz). The photo-copy of the concerned chik report is available on the file of S.T. No. 959 of 2010, State Vs. Sahid as paper no. The chik F.I.R. of this case was prepared by him which is Exhibit Ka-4 and the same is paper no. 4 in file of S.T. No. 958 of 2010 (State Vs. Sarfaraz). The photo-copy of the concerned chik report is available on the file of S.T. No. 959 of 2010, State Vs. Sahid as paper no. 4 which is exactly the same as Exhibit Ka-4, which is being certified by him and marked as Exhibit Ka-5. On the basis of Exhibit Ka-4, he made entry in G.D. at report no. 23 at 15:10 hours, carbon copy of which is available in the file of S.T. No. 958 of 2010 which is paper no. 9/2 which was prepared by him in his hand-writing in same process. The said carbon-copy is proved by him by original G.D. and it is marked as Exhibit Ka-6. The photo-copy of the concerned G.D. is filed in file of S.T. No. 959 of 2010 which is paper no. 8/2, which this witness has certified to be the exact carbon-copy of original G.D. and has been marked as Exhibit Ka-7. 11. P.W.8, Inspector Pramod Panwar has stated in examination-in-chief that the investigation of this case was assigned to him on 25.2.2010. On the said date, he had written parcha no. 1 in which after copying the chik F.I.R. and G.D., recorded the statements of Constable Sahab Singh and Md. Irfan S/o Shamshuddin. He inspected the place of incident and prepared the site-plan, recovered one empty cartridge of 12 bore, one empty cartridge of 315 bore and took plain and blood stained soil and prepared its recovery memo. The site-plan is Exhibit Ka-19. The recovery memo of plain and blood stained soil was paper no. 8/1 in the file which was got prepared by S.I., Sri Bagesh Kumar Sharma at the spot at his dictation which was signed by P.W.8 and S.I. Bagesh Kumar himself and had already been marked as Exhibit Ka-12. Similarly paper no. 8/2, Fard in respect of recovery of one empty cartridge of 12 bore and one empty cartridge of 315 bore connected with Crime No. 163 of 2010 were prepared at the scene of occurrence at his dictation by S.I., Bagesh Kumar Sharma which is already marked as Exhibit Ka-14. Similarly paper no. 8/2, Fard in respect of recovery of one empty cartridge of 12 bore and one empty cartridge of 315 bore connected with Crime No. 163 of 2010 were prepared at the scene of occurrence at his dictation by S.I., Bagesh Kumar Sharma which is already marked as Exhibit Ka-14. One sealed bundle was presented in court pertaining to Crime No. 163 of 2010 which was opened with the permission of Court and out of it, one live cartridge of 12 bore was taken out from one panni which had mark on it as L.G.1 etc. dated 21.07.2010. On the bundle which was a white cloth, was marked as material exhibit-1 and the white panni was marked as Material Exhibit-2; live cartridge of 12 bore was marked as material Exhibit-3 and three other empty cartridges of 12 bore were marked as T-1, T-2 and were material Exhibits 4 and 5 respectively. There was another empty cartridge of 12 bore which was marked as E.C.-1 and it was marked as material Exhibit-6. From out of the white panni, one live cartridge of 315 bore bearing on it L.C.2 was taken out and was marked as material Exhibit-7. Further from the said panni, three blank cartridges of 315 bore were taken out which had mark on it as T.C.-3 and T.C.-4 etc. which were marked as material exhibits 8 and 9 respectively. The third empty cartridge of 315 bore was having written on it E.C.-2 and was marked as material Exhibit-10. From the white panni, one envelope of grey color was taken out on which pallets, P-1 was written, the envelope was marked as material Exhibit-1 and from out of the said envelope, one pudia of white paper was taken out which contained one small Pellet and date 21.07.2010 was written thereon; this paper was marked as material Exhibit-12 and the Pellet taken out of it was marked as material Exhibit-13. One grey colored envelope, on which white paper was pasted and deceased Naseem S/o Shamshuddin and others was written on it and one Pellet, which was sent after being sealed, was taken out and seal was also taken out and were marked as material Exhibits 14 and 15. 12. On 26.02.2010, he received post-mortem report of deceased, Naseem which was recorded in C.D. on 27.2.2010. On getting information from informer, accused Sarfaraz and Md. 12. On 26.02.2010, he received post-mortem report of deceased, Naseem which was recorded in C.D. on 27.2.2010. On getting information from informer, accused Sarfaraz and Md. Sahid were arrested from their houses. From Sarfaraz, one country-made gun of 12 bore and one live cartridge of 12 bore were recovered and from Sahid, one country-made pistol of 315 bore and one live cartridge of 315 bore were recovered. The said articles were sealed on the spot and its fard was dictated by him to S.I. Anek Singh and was signed by companion police officials and accused Sarfaraz and Md. Sahid and one copy of it was given to each accused. The original fard is kept on file of Sarfaraz under Section 25/27 of Arms Act, P.S. Shahpur which is paper no. 5 and it was stated by this witness that the same was prepared at the time when country-made pistol and gun were recovered from both the accused, Sarfaraz and Sahid and the same is marked as Exhibit Ka-20. Further this witness has stated that out of it, one sealed bundle bearing material Exhibit-1, one country-made pistol and one 315 bore pistol were taken out which were marked as material Exhibits 14 and 15 respectively. Both were found in running condition. The statement of the accused were taken. On 28.2.2010, statement of injured, Raiyyan, Shaqib, witness Ilias, Smt. Vakeela, Smt. Shabnam, Smt. Jaitun were recorded who stated themselves to be eye-witnesses of the occurrence and supported the prosecution version as mentioned in F.I.R. On 17.03.2010, warrant under Section 82 Cr.P.C. was obtained against accused, Farukh, Arshad, Mumtaj, Rashid and Sadiq from court which were executed on 24.3.2010. The original inquest report and post-mortem were copied in C.D. in which it was recorded that Naseem had died by bullet injury as per doctor's version. The statement of witness of inquest report were also recorded which included Yaseen and Naseebuddin, Shabbir, Mehar Hasan, Subhrati. On 13.4.2010, he sent the case property, for being tested to F.S.L., Agra through Constable Surendra. On 21.4.2010, he recorded statement of witnesses, Tahir and Shaukeen who were witnesses of recovery of two country made pistols and also of recovery of plain and blood stained soil. On 11.5.2010, after getting sufficient evidence against accused, Sarfaraz and Sahid, charge-sheet was submitted which is Exhibit Ka-21. On 21.4.2010, he recorded statement of witnesses, Tahir and Shaukeen who were witnesses of recovery of two country made pistols and also of recovery of plain and blood stained soil. On 11.5.2010, after getting sufficient evidence against accused, Sarfaraz and Sahid, charge-sheet was submitted which is Exhibit Ka-21. On 11.5.2010, accused, Rashid and Arshad surrendered before the court of C.J.M. On 18.10.2010, the statements of these two accused were recorded in jail with the permission of court. On 28.5.2010, the bail application was heard of accused, Sadiq, Mumtaj and Farukh in compliance with High Court's order and on 10.6.2010, their bail applications were rejected and they were sent to jail. On 14.6.2010, their statements were taken in jail. On 21.6.2010, all the three aforesaid accused were taken on Police Custody Remand (P.C.R.). On 6.7.2010, charge-sheet was submitted against accused, Sadiq, Arshad, Rashid, Farukh and Mumtaj which is Exhibit Ka-23. 13. Further this witness has stated that other sealed bundle was opened before court on which Vidhi Vigyan Prayogshala was written relating to Crime No. 163 of 2010 and out of it, one pant of black color, one banyan white, one cloth of brown color and two sealed bundles were taken out and were marked as material Exhibits 16, 17, 18 and 19 and this witness stated that these were the same clothes which deceased, Naseem was wearing at the time of occurrence. The two containers were wrapped in cloth which was marked as Material Exhibits 20 and 21. From out of the said container, cement, mitti and tickli were marked as material Exhibit-22 while from other containers, blood stained soil and ordinary soil was taken out and the bundle was marked as material Exhibit-23 and container was marked as material Exhibit-24. The blood stained soil was marked as material Exhibit-25. From out of the bundle, material Exhibit-1, the country-made pistol of 315 bore and live cartridge of 12 bore, which were recovered from accused, Sarfaraz Ali and Md. Sahid, were taken out regarding which, the accused had stated that by the said weapons, both of them had made fire upon the deceased, Naseem and others on 25.2.2010. 14. On the basis of evidence gathered by the prosecution, charge under section 148, 452, 302 read with 149 and 307 read with 149 IPC has been framed against the accused-appellants Sarfraz and Sahid on 20.5.20111. 14. On the basis of evidence gathered by the prosecution, charge under section 148, 452, 302 read with 149 and 307 read with 149 IPC has been framed against the accused-appellants Sarfraz and Sahid on 20.5.20111. A separate charge has been framed under section 148, 452, 302/149 and 307/149 IPC against accused-appellants Sadiq, Arshad, Rashid and Farukh Mumtaj on the same day. On the same day two separate charges were framed under section 25 Arms Act; one against the accused Sarfraz and other against accused Sahid, to all the above charges, the above-named accused pleaded not guilty and claimed to be tried. 15. In order to prove its case, Mohd. Irfan as PW1, Raiyyan as PW2, Khalil Ahmad as PW3, Sahab Singh as PW4, S.I. Bagesh Kumar Sharma as PW5, Dr. Pradeep Kumar Mittal as PW6, Dr. Radheyshaym Verma as PW7, Inspector Promod Panwar as PW8 and Dy. Inspector Baljor Singh as PW9 have been examined. 16. The prosecution evidence was closed and the statement of the accused were recorded under section 313 Cr.P.C, in which the entire evidence gathered against them has been stated to be false and have taken the plea that they have been falsely implicated due to the enmity. In addition, the accused Sarfraz has stated that in respect of the occurrence, which happened with him, his father Shaukat had lodged a case crime no. 163A of 20110 under sections 307, 504, 506 IPC, in which charge-sheet has been submitted against Khalil, Raiyyan and Shakir and the case is pending in this very court. He had used force against the complainant side only in self defence and has filed the copy of the FIR of the said case, which is Exhibit Kha-1. The accused-appellant Sahid has initially stated that he has been implicated in the case only because of being of the same family. The same defence has been taken by the other co-accused Sadiq. The accused-appellant Sahid has initially stated that he has been implicated in the case only because of being of the same family. The same defence has been taken by the other co-accused Sadiq. The co-accused Arshad has additionally stated that on 24.2.2010 the daughter of his brother-in-law Smt. Shakeela, who was married in village Kalyanpur, had died and after hearing the said news, he along with his brother Musarraf had gone there on 25.2.2010 from their village Harsauli and had reached in village Kalyanpur at 8.00 A.M. and remained there till 3.00 P.M. Mohammad Farukh has additionally stated that he has medical store in the village and on the date of the incident, he had gone somewhere and was not available at medical store. Subsequently, he came to know that an occurrence had happened near the said medical store with Sarfraz son of Shakeel regarding which, case crime 163A of 2010 was registered under section 307, 504, 506 IPC, in which charge-sheet has been submitted against Khalil, Raiyyan and Shakir, because of this enmity, he has been falsely implicated. Accused Mumtaj and Rashid both have additionally stated that because of them being of the same family, they have been falsely implicated. In defence, from the side of the accused, Dr. Radhey Shyam Verma as DW1, Haqiqat as DW2, S.I. Bagesh Kumar Sharma as DW3 and Dr. Sukrampal Singh as DW4, have been examined. 17. On the basis of the above evidence, the trial court after having considered the same and in the light of the arguments made from both the sides, has convicted the accused-appellants and sentenced them as mentioned above. Now we have to see in the light of the argument made in this appeal as to whether the said judgment needs to be interfered with or should it remain as such. 18. In order to prove its case, from the side of prosecution, in support of the prosecution version as mentioned in the FIR, the informant Mohd. Now we have to see in the light of the argument made in this appeal as to whether the said judgment needs to be interfered with or should it remain as such. 18. In order to prove its case, from the side of prosecution, in support of the prosecution version as mentioned in the FIR, the informant Mohd. Irfan has stated as PW1, in examination in chief, that the occurrence took place on 25.2.2010 at 2.00 P.M. About 7-8 days prior to this occurrence, while playing volley ball, a quarrel had taken place between him and his brothers Naseem and Khalil on the one side and the accused Sadiq on the other, in which maar-peet had also taken place but after the intervention of some respected persons of the village, the matter was compromised between the parties, but the accused Sadiq had given a threat to his brothers that he would see them. On 25.02.2010 when PW1 was present at his house with his brothers namely, Naseem, Khalil, nephew Shakir, his mother Wakeela, Bhabi Jaiboon, Bhabi Shabnam and Ilyas and he and his brother, after coming from the field, were taking off fodder to be placed in the machine, then all of a sudden, at about 2.00 P.M. accused Sadiq armed with country made gun and others namely, Sahid, Arshad, Rashid, Sarfraz, Mumtaj and Farukh, all armed with country made pistol entered into his house and started abusing and uttered "Maro Salo Ko" and then all of them started making fire from their respective weapons upon the complainant side. In this assault, his brother Naseem, he himself, Khalil, Raiyyan and his nephew Shakir received fire arm injuries while he himself fled from there and concealed himself to save his life. The ladies of his house raised alarm and after hearing the sound of pistol and guns, a lot of people had assembled there coming from different lanes and thereafter the accused left the scene of occurrence giving threat. Thereafter, with the aid of his relative and family members, he brought his injured brothers to police chawki first by a vehicle and one police personnel had taken the injured person to the District Hospital, where Naseem was declared dead by the doctors as soon as he was seen. Thereafter, with the aid of his relative and family members, he brought his injured brothers to police chawki first by a vehicle and one police personnel had taken the injured person to the District Hospital, where Naseem was declared dead by the doctors as soon as he was seen. His other brothers namely, Khalil, Raiyyan and nephew Shakir were got admitted for being medically examined, thereafter, he had written report of this case in the hospital taking the same he had gone to police station Shahpur, where he got the case registered. He had identified Exhibit Ka-1 to be the same report, which he had given at the police station. 19. After drawing the attention to the above statement of this witness, learned counsel for the appellants had argued that the FIR was ante-timed because medical examination of the injured persons was conducted between 15-15 hours-15-30 hours, while the FIR had been registered on the same day at 16.30 hours, which would show that medical examinations of the injured, were already conducted before lodging the FIR. 20. In cross examination, this witness has stated that the name of his father is Shamsuddin, who is alive. He had three wives and from the first wife there was no child born. From the second wife, Iqbal was born and from the third wife, PW1, Raiyyan, Imran, Naseem, Saleem and Khalil were born. He cannot tell as to how much land is possessed by Shahmsuddin. Iqbal, who is son of Shamsuddin, was living separate while rest of the accused were also living separate. From among the children of his mother, Naseem, Khalil and Saleem were living at one place while others namely Iqbal, Raiyyan, Ifran and Imran were living in a house at a distnace leaving in between one house. All the brothers named above, were married. 21. He has further stated that one case under section 307, 504, 506 IPC is also pending in the same court, in which the present case is pending and the complainant of the said case is Shaukat son of Alauddin. The injured in the said case was accused Sharfraz son of Shaukat. The son of Sharfraz was also caused injuries in the said case, in the said case, after investigation, the police had submitted charge sheet. The injured in the said case was accused Sharfraz son of Shaukat. The son of Sharfraz was also caused injuries in the said case, in the said case, after investigation, the police had submitted charge sheet. He has also stated that the accused of the said case were his real brothers namely, Naseem, Khalil and Raiyyan and one more injured in that case was his nephew Shakir son of Raiyyan. He has further stated that in the present case, his real brother Naseem has been murdered while Raiyyan, Khalil and Shakir have received injuries but of his own, he has further stated that the above-named case under section 307 IPC was a false one as no such occurrence has taken place. 22. It has also been stated by this witness that all the accused shown in this case, they all are descendant of Kallu and Jagira and that the father of Kalu and Jagira was Hatham. It is right to say that there is distance of one kms. between the residential places of the families of Kallu and Jagira and his (PW1) families. Further, he has stated that all his brothers do agricultural work but he does not know as to how much land they possessed and the said agricultural land is common, however, their food is cooked separately but they lived together. The ancestors of accused namely Kallu and Jagira were real brothers of the ancestors of PW1. 23. He has no knowledge as to who were playing the volley ball in the field and what were their names. His brothers Naseem and Khalil had not told him the name of those persons, who were playing there because he had not asked for the same. He had come to know about the quarrel on the same day in the evening but he had not made any written report nor oral at the police Chauki in that regard. Rashid son of Raja Din had met him in the evening of the incident, who had accompanied him to the hospital. He had met him in the Government Hospital, Muzaffar Nagar. At that time, there were many people of the village including Intijar son of Islam Uddin, his uncle's son Subrati and many others. Imran and Iqbal sons of Shamsuddin had also reached the hospital and with them one police personnel had accompanied them from Chawki. He had met him in the Government Hospital, Muzaffar Nagar. At that time, there were many people of the village including Intijar son of Islam Uddin, his uncle's son Subrati and many others. Imran and Iqbal sons of Shamsuddin had also reached the hospital and with them one police personnel had accompanied them from Chawki. All the injured were in the same vehicle, which was Maruti 800 and all the injured namely, Khalil, Raiyyan and Shakir were sitting while Naseem was made to lie on his lap. Soon after 5-7 minutes of the occurrence, lot of blood was coming out from the wounds, which had made all their clothes wet. Among injured, only Naseem was unconscious while rest injured were conscious and were talking. It has further been stated that by the time they reached Muzaffar Nagar, they had felt that the Naseem was still breathing but when they reached the hospital at 3.15 PM, there Naseem was declared dead and two persons had taken away the dead body of Naseem. Other three injured namely Khalil, Raiyyan and Shakir were medically examined in front of him. 24. On the date of incident, Farukh was present at the said medical store where medicines are sold. The said medical store is situated in the house of Meharban son of Isab Uddin and adjoining to this medical store to the south of it, is a lane and thereafter is situated abadi and thereafter one or two lanes and then is situated the main road. From the house of accused, the medical store of Farukh was situated about 600 meters away and there was no other medical store in that vicinity. 25. The main door of his house is towards east, which had a shutter, which remained closed in the night. His house is constructed in the area of about 600 to 700 sq.yards in which he lives and his cattles are also kept there. On 25.2.2010 there were 5, 7 and 10 buffalos tied in that house. Inspection of the place of occurrence was made by the Investigating Officer in his presence, although he does not recollect its date and time. Perhaps, the Inspector was Bagish Sharma, whom he had shown the place of incident, where cartridges were lying and his brother Naseem was lying. Inspection of the place of occurrence was made by the Investigating Officer in his presence, although he does not recollect its date and time. Perhaps, the Inspector was Bagish Sharma, whom he had shown the place of incident, where cartridges were lying and his brother Naseem was lying. The places where Pellet embedded in the walls, were also shown and the place from where the accused had run away, after having made fire was also shown. The Investigating Officer had not got the photography done of the said place, where Pellet hits wall. After verandah, there is one gallery and on both sides of it, there are rooms. The ladies of his house live in curtains and thereafter of his own he has stated that he has three storyed residential house. On the third floor of which, ladies live. On the date of incident as well as prior to that, there was a door installed in the gallery of his house, which used to remain open during the day but the same remains, closed in the night. After the said gallery, lies a Sahan, in which cattle are tied. In the said veranda, there is no residential room and due to shed, cattle are tied in the said veranda and there is no other kind of construction. For going upto the third floor, there is only one passage, which goes through stairs. On the third floor, there were six rooms, out of which four had exit towards north side while rest had exit towards west and east sides. There was no curtain in those rooms but there were doors in them. He had not shown those rooms to the Investigating Officer. In the stair case, which leads upto the third floor from the ground floor, there is no door at the ground floor. There is one room constructed at the third floor, which remains vacant and the same is used only when guests come. In his house, after the gallery, there is a Sahan in which cattle are tied, which place is 'Kachcha'. Gallery is cemented and Varanda is also cemented. After veranda, there is Sahan and upon that 'kharanja' is laid. For looking after the cattle, he has not engaged any servant. Near the stair case, one fodder cutting machine, which is run by electricity, is also installed, which is used sometimes for the said purposes. Gallery is cemented and Varanda is also cemented. After veranda, there is Sahan and upon that 'kharanja' is laid. For looking after the cattle, he has not engaged any servant. Near the stair case, one fodder cutting machine, which is run by electricity, is also installed, which is used sometimes for the said purposes. All these places were shown to the Investigating Officer at the time of inspection. 26. This witness has further stated that after the gallery, varandah is about 11 ft. wide and after the said veranda, there is a gallery, which is about 11 ft. long and about 9 to 10 ft. wide. Just after the gallery, there is a kachcha floor and about 3-4 ft. to the west of it, there is kharanja. All the four persons namely, Khalil, Raiyyan, Shakair and Naseem had come from the field of Sugarcane. They had come in a buggi, which was parked outside the varanda and all the above four persons were emptying the buggi. The Investigating Officer was shown the said place. On the said day, no altercation/conversion had happened with the accused. He has further stated that after the incident of volley ball, compromise had taken place. There was no social relationship between his family and the family of the accused. The accused were living about seven meters away near Harsauli road. The agricultural lands of the informant and the accused were adjoining to each other. None of the seven accused had met him since the date of incident. He cannot tell as to from which direction the accused had entered the Gher, because at that time, they were taking off the 'Gole' for the purposes of cutting the fodder. They were cutting the said fodder in the machine, which was installed beneath the stair case and the said machine was being run by hand by Khalil and Raiyyan. 27. Further, this witness has stated that he does not know exactly about Shakir as to where he was and what was he doing. When he had come after taking water, the accused had started the incident and as soon as they came and started abusing then Naseem, after having seen them, ran towards the stair case. With abusing, simultaneously all the accused reached near the fodder cutting machine armed with pistol while Sadiq had gun, which was a licensed one. When he had come after taking water, the accused had started the incident and as soon as they came and started abusing then Naseem, after having seen them, ran towards the stair case. With abusing, simultaneously all the accused reached near the fodder cutting machine armed with pistol while Sadiq had gun, which was a licensed one. He had no licensed weapon in his house. He has knowledge about the bore of the country made pistol. Soon after coming, the accused started making fires but he could not see whether they were making fires after taking aim or not. He has seen the country made pistol of the accused by which about 14-15 fires were made and soon after firing, the complainant side started fleeing but accused chased them. The place where the fodder machine was being used, the injured Naseem, Khalil, Raiyyan and Shakir had received fire arm injuries, which were caused to them while they were fleeing. Raiyyan, Khailil and Shakir had scaled northern side wall and had jumped over the other side of the wall to save their lives but he cannot tell whether the accused had chased them or not. He had not alleged this fact in the report that Khalil, Raiyyan and Shakir had run towards north after scaling the wall. The Investigating Officer has recorded his statement and to him he had told that after getting injured by fire, the above three persons had fled from there after jumping over the northern, wall which might have been 4-5 ft. high. At the time when this occurrence happened, he (PW1) was standing there and thereafter has stated of his own that he was in the stair case where there were small wall. He cannot tell as to whether he had told the Investigating Officer about the same nor had he mentioned the same in his report. When the fires were being made, he did not see as to which injured had received fire arm injury at which place because he was running away from there to save his live and after fleeing, the injured Naseem had straightway reached the third floor of the house. All the seven accused had not gone to the third floor making fires, rather none of them had gone there. All the seven accused had not gone to the third floor making fires, rather none of them had gone there. He has further stated that the fire had hit the third floor and then again stated that possibly did not get hit. He was put a question as to whether all the seven accused had reached the third floor making fires, to which he responded that Sadiq, Sahid, Rashid and Sharfraz were going by the stair- case to the third floor but none of them could reach. The fire was made from the stair case. 28. Further, this witness has stated that Naseem had received fire arm injury on the third floor when he had turned around to see but he could not see as whose shot had hit Naseem. He had told the Investigating Officer that injury was caused on the third floor. He does not known as to whether the blood was lying or not at the place where machine was installed or at the stair case, which led to third floor. Subsequently, he had seen blood lying at the third floor but had not seen any blood lying near fodder cutting machine. All the accused had made fires but cannot tell as to what was the distance between the injured and the accused when the fire was made. The accused had halted for about 5-7 minutes while the fire was being made and two empty cartridges were found. The empty cartridges were found near the machine but he had not seen them himself. The said empty cartridges were of the gun. When the Investigating Officer had come, Naseem had received gun shot injury on the upper portion of his chest while Khalil had received injury on his face and hand as well as on chest. Shakir had received fire arm injury on his forehead while Raiyyan had received injuries on the finger of his left hand. Khalil had received fire arm injury on his hand and chest as well as on his face. Khalil, Raiyyan and Shakir were got admitted in Muzaffar Nagar hospital from where Shakir and Raiyyan were discharged while Khalil was admitted. Khalil was referred after 5-7 days to some other hospital. He had remained in the hospital for about 5 days. Khalil had received fire arm injury on his hand and chest as well as on his face. Khalil, Raiyyan and Shakir were got admitted in Muzaffar Nagar hospital from where Shakir and Raiyyan were discharged while Khalil was admitted. Khalil was referred after 5-7 days to some other hospital. He had remained in the hospital for about 5 days. Khalil, Raiyyan and Shakir, whether they were operated or not after having received arm injury, he does not know although all the three had been X-rayed but he does not know its outcome. He has further stated that Exhibit Ka-1 was written by him in the hospital at 3.30 p.m. on the date of incident. 29. This witness has further stated that Ilias S/o Yakoob R/o Makhiali was real brother-in-law (sala) of his deceased brother Naseem and further stated on his own that the wife of deceased, Naseem i.e. Shabnam started living with Rashid S/o Raiyyan after the death of Naseem meaning thereby that she had contracted marriage with him. He was also real nephew of deceased, Naseem. 30. He had not given information of this occurrence to any of his relatives. The occurrence had happened at about 2 p.m. but he did not make any mention of it to anyone nor did he divulge the names of the accused, although he went on to say that everyone had seen the occurrence and he had lodged the report as well by name. 31. He has further stated that indiscriminate firing was made by the accused, no fire arm injury was caused to any of the animals which were tied there in the 'gher'. The marks of bullets had been caused in the walls particularly in northern wall where 5 to 7 bullets had hit. Such marks were shown by him to the I.O. but he does not recollect whether empty bullets were lying there or not. He had saved his life by concealing himself in room at the second floor and had closed the doors. There was no lady in the said room as the ladies used to live in the rooms on the second floor. The doors of the rooms were not closed. On the second floor there were six rooms constructed out of which two were towards east and rest were towards south. There was no lady in the said room as the ladies used to live in the rooms on the second floor. The doors of the rooms were not closed. On the second floor there were six rooms constructed out of which two were towards east and rest were towards south. The accused had only made fires upon him although he did not utter any word except that Naseem was abused by them. The neighbours had closed the doors of their houses and none of them had come to the spot at the time of occurrence and had reached only after the occurrence. Further he has stated that in respect of Sarfaraz having received injuries, he was told after he had lodged the report, by S.O. but he does not recollect the exact time when it was told. The case in respect of Sarfaraz having received injuries was also being contested in the same court in which his real brothers Khalil, Raiyyan and his nephew, Shakir had got themselves bailed out. He has no knowledge whether any medical board was constituted for medical examination of Sarfaraz nor does he has knowledge whether Sarfaraz had received any treatment at Meerut Medical College after having received fire arm injuries. 32. He has further stated that on the stair-case railing has been installed after raising wall of bricks and the said railing begins from the side where machine was installed. The stair-case was three feet wide. When the accused reached on the third floor, they were continuously firing while chasing Naseem (deceased). Accused ascended stair-case while making fires. Naseem did not receive any injury till he reached the third floor and whatever injuries were received by him were caused to him only when he reached the third floor. Some accused had stayed back near the machine but he cannot say whether they were making fires or not. In his memory, no empty cartridge was found on the third floor. How the Naseem was found lying i.e. whether with face down or face up etc., he cannot tell. Accused were continuously making fire upon Naseem so that no one could come near them. When the accused had left, his mother, brothers and various other persons had taken Naseem to the ground floor in injured condition where he was made to lie on a cot. Naseem was not speaking anything; his clothes were smeared with blood. Accused were continuously making fire upon Naseem so that no one could come near them. When the accused had left, his mother, brothers and various other persons had taken Naseem to the ground floor in injured condition where he was made to lie on a cot. Naseem was not speaking anything; his clothes were smeared with blood. When Naseem was lying on the cot, the remaining injured, Khalil, Raiyyan and Shakir were also brought there by the villagers after lifting them. All the three had jumped over the wall and were lying in the other house, the said house was to the north of the house in which machine was installed and between them, there was house of Jabbar. The house in which they were lying also belonged to them (informant side). In house of Jabbar, these injured were lying there, blood was also found spread there. He had shown blood lying on the third floor and also in the other house as well as on the clothes, to the I.O. but the clothes were not taken into possession by him (I.O.). 33. He has further stated that he had told I.O. that he had a heated argument with accused Sadiq followed by abusing and 'marpeet' but if the same has not been recorded, he could not tell its reason. He had also told I.O. that his brother after having returned from the field was taking off the fodder and was placing it on the machine but if the same was not recorded, he cannot tell its reason. He had also told I.O. that ladies of the house raised alarm and after hearing the sound of fires, lot of people had assembled there, whereafter the accused fled from there making fires but why the same was not recorded by the I.O. in his statement, he cannot tell its reason. He had also told I.O. that he had taken his injured brothers in a vehicle and had gone first to the police chauki in the village and from there one police personnel had accompanied them to the hospital but if the same has not been recorded, he cannot tell its reason. He cannot tell as to for how long, he stayed at P.S., Shahpur after reaching there but stated that he might have stayed there for about half an hour. He cannot tell as to for how long, he stayed at P.S., Shahpur after reaching there but stated that he might have stayed there for about half an hour. He does not remember whether police had already arrived in the village before he reached there. When he returned home, he did not find any of the injured i.e. Khalil, Raiyyan and Shakir in the village and he does not remember as to whether any of these injured had returned to the village by the evening. When the dead body of his brother, Naseem came there at that time, Raiyyan and Shakir were present there. For the post-mortem of Naseem, he had gone. He was not present at the time when his panchayatnama was filled up nor did he see any Inspector or any police personnel filling up panchayatnama. He had reached the post-mortem house next day in the morning at about 8:00 a.m. and had found the dead body there but does not recollect whether any I.O./police personnel was present there or not. He has denied not to have seen the occurrence and that he was making false statement due to the injured and deceased being his family members. He has also denied that after having consulted the police personnel, he had lodged the F.I.R. on the next day of the occurrence. He has also denied the suggestion that about ten days prior to this occurrence, quarrel had happened between the son of Shaukat i.e. Sarfaraz and his brother, Naseem (deceased) in respect of weighing of sugar-cane. He has also denied the suggestion that on 25.02.2010 at about 2:00 p.m., Sarfaraz (accused) had gone to take medicine from medical-store of Farukh and at that time, Naseem, Khalil, Raiyyan and Shakir (complainant side) were having lathi, katta and gun in their hands and by showing fear of these weapons, Sarfaraz was tried to be dragged by them in their house and that in the lane which was adjacent to their house, Sarfaraz was caused injuries by lathis by Khalil, Raiyyan and Naseem who were having guns, had caught hold of Sarfaraz and then Shakir told his companions that he should be shot and at this instigation, Shakir made fire upon Sarfaraz with an intention to kill by the katta which he was having in his hand. It is also wrong to say that as soon as Naseem was about to make fire, Sarfaraz snatched the gun from the hands of Naseem, whereafter all the said four persons (complainant side) chased Sarfaraz then Sarfaraz made fire from the said gun in order to defend himself which was snatched by him and somehow could save his life and returned home. He has denied the knowledge that Sarfaraz was medically examined in Meerut Medical College. It is also wrong to say that the real incident is the case which was lodged by Shaukat against the complainant side. 34. For appreciation of evidence of P.W.1 and other-witnesses, it will be essential to read and evaluate the same in the light of site-plan which is Exhibit Ka-19. In this site-plan, by arrow is shown the passage from where the accused came armed with guns. By 'A' is shown the place where the accused are stated to have made indiscriminate firing. By another arrow with zero at the tail end of it is shown the passage by which the injured are stated to have fled to defend themselves, by 'X' is shown the place where deceased received fire arm injury, which is the third floor of the house of the complainant side and he is shown to have received the said injury when he looked back upon the accused while running; by 'D' and 'E' are shown the places from where one empty cartridge of 12 bore and one empty cartridge of 315 bore were recovered. By 'B' is shown the place where plain-soil and by 'C' is shown the place from where blood stained soil was taken into possession. By 'F' is shown the ground floor of the house of complainant side and by 'B-1' is shown the second floor and above, of the complainant side. 35. By 'B' is shown the place where plain-soil and by 'C' is shown the place from where blood stained soil was taken into possession. By 'F' is shown the ground floor of the house of complainant side and by 'B-1' is shown the second floor and above, of the complainant side. 35. This witness has proved the motive of the occurrence by stating that about 7 to 8 days ago prior to the occurrence that took place on 25.02.2010, the quarrel had happened between the deceased, Naseem and Khalil of the complainant side with accused Sadiq while playing volleyball in which both the sides had indulged in abusing each other and a little marpeet had also taken place but the matter was got compromised by the respectable persons of the village but at that time accused, Sadiq had given threat to deceased and his brother, Khalil that he would see them and in, pursuance to this motive, the occurrence was given effect to from the accused side on 25.02.2010 when P.W.1 and his brother after having come from their field were taking off fodder from the vehicle and were placing the same on fodder machine. Then, all of sudden, the accused named above came there armed with country made pistol and started abusing them exhorting 'maro salo ko' which was followed by indiscriminate firing made by them. In this assault, his brother, Naseem (deceased) and other brothers i.e. Khalil, Raiyyan and Shakir also received fire arm injuries while P.W.1 himself saved his life by concealing himself somehow. In this assault, his brother, Naseem (deceased) and other brothers i.e. Khalil, Raiyyan and Shakir also received fire arm injuries while P.W.1 himself saved his life by concealing himself somehow. This witness has made clear in cross-examination that Naseem immediately ran towards the stair-case to save his life and rest of the three injured had jumped over the wall which was to the north of the said stair-case and had landed in the place where there was house of Jabbar after getting injured and it is apparent that this witness has proved his presence on the place of incident and according to him, by the side of the said stair-case, there was fodder cutting machine where the deceased and his brothers (injured persons) were involved in cutting of fodder when this occurrence took place and the deceased fled towards the third floor of the house and he was followed by the accused persons who was continuously making fire upon him and fire was also made by them from the stair-case and ultimately the deceased got seriously injured at place shown by 'X' in the site-plan which is third floor of the house of the complainant. This witness has denied the cross version of the accused that on the said date i.e. 25.02.2010 at about 2:30 p.m., Sarfaraz (accused) had gone to take medicines from the medical-store of Farukh where Naseem (deceased) and three injured (Khalil, Raiyyan and Shakir) who were armed with lathis, country made pistol and gun tried to drag Sarfaraz into their house which was located adjacent to the said lane where the said shop was located and it was in self-defence that Sarfaraz had made fire upon the deceased by the gun which was snatched by him from Naseem when he was about to make fire upon him and also denied that Khalil, Raiyyan and Shakir had made any fire upon Sarfaraz with an intention to kill. 36. 36. During argument, the main emphasis was placed by the learned counsel for the appellants upon the fact that the occurrence did take place but not in the manner as has been stated by the prosecution rather it took place as stated by the defence side and in-fact the injury caused to the deceased were caused in self defence by the accused side and that cross case was registered against the complainant side in which they have been also held guilty under Section 307 I.P.C. We would give opinion in respect of the fact as to whether the version set-up by the defence is a cross-case or not after having evaluated the entire evidence as to whether if there were cross-cases, as to which side was aggressor or whether it was a free fight. 37. P.W.2 who is also an injured eye-witness of the occurrence i.e. Raiyyan has stated in examination-in-chief that about three years ago when he was playing volleyball in the field of kabristan, a quarrel took place at about 4:00 to 5:00 p.m. between Sadiq (A-2) on the one hand and Khalil (P.W.3) & Naseem (deceased) on the other which was got compromised by the villagers but despite that Sadiq had given threat to Naseem that he would see him and three days thereafter when he along with others were coming home after taking fodder and the same was being taken off of the 'buggie' near the fodder cutting machine, right then Sadiq, Arshad, Sahid, Sarfaraz, Farukh, Rashid and Mumtaj came there and told 'sale naseem' and, thereafter started making indiscriminate firing in which Raiyyan, Shakir and Khalil got injured. This occurrence took place at about 1:45 p.m. Sadiq was having gun while others were having pistols. All these accused were of his village who knew him from before and they were all recognized by him in the Court. Soon after receiving injury, P.W.2 fled to save his life after jumping over the wall while his brother, Naseem (deceased) ascended the stair-case but accused pursued him and made fires upon him from the stair case. His brother, Irfan was also fired upon. Naseem was left in dead condition by the accused and fled from there. On the spot, P.W.2, Khalil, Shakir, Vakeela, Jainub, Shabnab and one other relative, Ilias were present who have seen the occurrence. His brother, Irfan was also fired upon. Naseem was left in dead condition by the accused and fled from there. On the spot, P.W.2, Khalil, Shakir, Vakeela, Jainub, Shabnab and one other relative, Ilias were present who have seen the occurrence. About two minute thereafter, Irfan came near P.W.2 and stated that Naseem was in serious condition and should be taken to the hospital so that his life could be saved. Thereafter, all of them took Naseem and on way one constable was found at police chauki, Harsauli, he (police personnel) also sat in the said vehicle and as soon as they reached the hospital, Naseem was declared dead while P.W.2 Khalil and Shakir were medically examined in district hospital in Muzaffar Nagar. Khalil was admitted because of serious condition and the F.I.R. of this case was lodged by his brother, Irfan. 38. In cross-examination, this witness has stated that it is right to say that the father of accused Sarfaraz i.e. Shaukat has lodged a case against P.W.2, Khalil, Naseem and Shakir under Sections 307, 504 and 506 I.P.C. at P.S., Shahpur but he cannot tell whether the said occurrence is of the same time and date which has been stated to be the date and time of the present occurrence but the police of Shahpur has filed charge-sheet in that case which is pending in this Court. The injured in that case is Sarfaraz. 39. Further this witness has given the same genealogy of Shamshuddin which has been narrated by P.W.1 and has also stated about the wife of Naseem having married the son of Raiyyan as was stated by P.W.1, hence the same is not being repeated. 40. As regards to the manner of occurrence, he has stated that the occurrence of firing had closed at 2:00 p.m. and soon after the occurrence, police had come there after 5 to 7 minutes. Irfan (P.W.1) had given full details of the said occurrence to S.O. Shahpur. He (P.W.2) was not in conscious condition when the police had come as he has suffered injury in his hand, thereafter, said that he was fully conscious. Lot of villagers had assembled there. When the police arrived, at that time, Naseem was lying at the third floor of his house in injured condition but, thereafter, stated that police had not arrived by then and had not gone to the third floor. Lot of villagers had assembled there. When the police arrived, at that time, Naseem was lying at the third floor of his house in injured condition but, thereafter, stated that police had not arrived by then and had not gone to the third floor. He further stated that all the injured had gone in Maruti Car and had reached the government hospital by 2:30 p.m., at that time one constable of Shahpur was accompanying them. As regards the motive, he also referred to the earlier occurrence and stated that 3-4 days after the earlier occurrence in which quarrel had happened in the field of Kabristan, the present occurrence was given effect to by the accused. Prior to this occurrence and subsequent to the compromise between the parties, no other dispute had arisen between them nor any meeting took place between two sides in village. No written report was got lodged in respect of the quarrel which had happened during playing volleyball. This witness has also narrated about his mother being third wife of his father, therefore, the genealogical aspect mentioned in the statement of P.W.1 is not being repeated here. 27. In Goutam Kundu Vs. State of West Bengal and another, 1993 3 SCC 418 , a two Judges Bench of Supreme Court considered the question regarding propriety of holding of blood group test to determine parentage of the child, and the following was observed in paragraphs 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25: "15. In India there is no special statute governing this. Neither the Criminal Procedure Code nor the Evidence Act empowers the court to direct such a test to be made. In 1951 (1) Madras Law Journal p.58O Polavarapu Venkteswarlu, minor by guardian and mother Hanwnamma v. Polavarapu Subbayya in that case the application was preferred under section 151 of the Code of Civil Procedure invoking the inherent powers of the Court to direct a blood test. The learned judge was of the following view:- Section 15 1, Civil Procedure Code, has been introduced in to the Statute book to give effect to the inherent powers. of Courts as expounded by Woodroffe, J., in Hukum Chand Boid v. Kamalan and Singh. Such powers can only be exercised ex debito justice and not on the mere invocation of parties or on the mere volition of courts. of Courts as expounded by Woodroffe, J., in Hukum Chand Boid v. Kamalan and Singh. Such powers can only be exercised ex debito justice and not on the mere invocation of parties or on the mere volition of courts. There is no procedure either in the Civil Procedure Code or in the Indian Evidence Act which provides for a test of the kind sought to be taken by the defendant in the present case. It is said by Mr. Ramakrishna for the respondent before m e that in England this sort of test is resorted to by Courts where the question of non-access in connection with an issue of legitimacy arises for consideration. My attention has been drawn by learned counsel to page 69 of Taylor's Principles and Practice of Medical Jurisprudence, Volume 2, where it is stated thus : "In Wilson v. Wilson, Lancet, 1942 1 570, evidence was given that the husband's group was OM, that the wife's was BM and that the child's was ABN. The Court held that the husband was not the father of child, and granted a decree for nullity." "It is also pointed out by learned counsel that in the text books on Medical Jurisprudence and Toxicology by Rai Bahadur Jaising P. Moi, (8th Edition), at page 94, reference is made to a case decided by a Criminal Court at Mercare in June, 194 1, in which the paternity and maternity of the child being under dispute, the Court resorted to the results of the blood grouping test." That may be. But I am not in any event satisfied that if the parties are unwilling to offer their blood for a test of this kind this Court can force them to do so." 16. The same view was taken by the Kerala High Court in Vasu v. Santha, 1975 KerLT 533 as "A special protection is given by the law to the status of legitimacy in India. The law is very strict regarding the type of the evidence which can be let in to rebut the presumption of legitimacy of a child. Even proof that the mother committed adultery with any number of men will not of itself suffice for proving the illegitimacy of the child. The law is very strict regarding the type of the evidence which can be let in to rebut the presumption of legitimacy of a child. Even proof that the mother committed adultery with any number of men will not of itself suffice for proving the illegitimacy of the child. If she had access to her husband during the time the child could have been begotten the law will not countenance any attempt on the part of the husband to prove that the child is not actually his. The presumption of law of legitimacy of a child will not be lightly repelled. It will not be allowed to be broken or shaken by a mere balance of probability. The evidence of non-access for the purpose of repelling it must be strong, distinct, satisfactory and conclusive see Morris v. Davies, 1837 5 Cl&Fin 163. The standard of proof in this regard is similar to the standard of proof of guilt in a criminal case. These rigours are justified by considerations of public policy for there are a variety of reasons why a child's status is not to be trifled with. The stigma of illegitimacy is very severe and we have not any of the protective legislations as in England t o protect illegitimate children. No doubt, this may in some cases require a husband to maintain children of whom he is probably not their father. But, the legislature alone can change the rigour of the law and not the court. The court cannot base a conclusion on evidence different from that required by the law or decide on a balance of probability which will be the result if blood test evidence is accepted. There is an aspect of the matter also. Before a blood test of a person is ordered his consert is required. The reason is that this test is a constraint on his personal liberty and cannot be carried out without his consent. Whether even a legislature can compel a blood test is doubtful. Here no consent is given by any of the respondents. It is also doubtful whether a guardian ad litem can give this consent. Therefore, in these circumstances, the learned Munsiff was right in refusing the prayer for a blood test of the appellant and respondents 2 and 3. The learned Judge is also correct in holding that there was no illegality in refusing a blood test. It is also doubtful whether a guardian ad litem can give this consent. Therefore, in these circumstances, the learned Munsiff was right in refusing the prayer for a blood test of the appellant and respondents 2 and 3. The learned Judge is also correct in holding that there was no illegality in refusing a blood test. The maximum that can be done where a party refuses to have a blood test is to draw an adverse inference (see in this connection Subayya Gounder v. Bhoopala, 1959 AIR (Mad) 396, and the earlier decision of the same court in Venkateswarlu v. Subbayya, 1951 AIR (Mad) 910. Such an adverse inference which has only a very little relevance here will not advance the appellants case to any extent. He has to prove that he had no opportunity to have any sexual intercourse with the 1st respondent at a time when these children could have been begotten. That is the only proof that is permitted under S. II 2 to dislodge the conclusive presumption enjoined by the Section." 17. In Hargavind Soni v. Ramdulari, 1986 AIR (MP) 57 held as:- "The blood grouping test is a perfect test to determine questions of disputed paternity of a child and can be relied upon by Courts as a circumstantial evidence. But no person can be compelled to give a sample of blood for blood grouping test against his will and no adverse inference can be drawn against him for this refusal." 18. Blood grouping test is a useful test to determine the question of disputed paternity. It can be relied upon by courts as a circumstantial evidence which ultimately excludes a certain invididual as a father of the child. However, it requires to be carefully noted no person can be compelled to give sample of blood for analysis against her will and no adverse inference can be drawn against her for this refusal. 19. In Raghunath v. Shardabai, 1986 AIR (Bom) 388, it was observed blood grouping test have their limitation, they cannot possibly establish paternity, they can only indicate its possibilities. 20. In Bhartiraj v. Sumesh Sachdeo & Ors., 1986 AIR (All) 2591 held as:- "Discussing the evidentiary value of blood tests for determining paternity, Rayden on Divorce, (1983) Vol. 19. In Raghunath v. Shardabai, 1986 AIR (Bom) 388, it was observed blood grouping test have their limitation, they cannot possibly establish paternity, they can only indicate its possibilities. 20. In Bhartiraj v. Sumesh Sachdeo & Ors., 1986 AIR (All) 2591 held as:- "Discussing the evidentiary value of blood tests for determining paternity, Rayden on Divorce, (1983) Vol. 1) p. 1054 has this to say "Medical Science is able to analyse the blood of individuals into definite groups: and by examining the blood of a given man and a child to determine whether the man could or could not be the father. Blood tests cannot show positively that any man is father, but they can show positively that a given man could or could not be the father. It is obviously the latter aspect the proves most valuable in determining paternity, that is, the exclusion aspect for once it is determined that a man could not be the father, he is thereby automatically excluded from considerations of paternity. When a man is not the father of a child, it has been said that there is at least a 70 per cent chance that if blood tests are taken they will show. positively he is not the father, and in some cases the chance is even higher: between two giver men who have had sexual intercourse with. the mother at the time of conception, both of whom undergo blood tests, it has likewise been said that there is a 80 per cent chance that the tests will show that one of them is not the father with the irresistible inference that the other is the father.' The position which emerges on reference to these authoritative texts is that depending on the type of litigation, samples of blood, when subjected to skilled scientific examination, can sometimes supply helpful evidence on various issues, to exclude a particular parentage set up in the case. But the consideration remains that the party asserting the claim to have a child and the rival set of parents put to blood test must establish his right so to do. The court exercises protective jurisdiction on behalf of an infant. In my considered opinion it would be unjust and not fair either to direct a test for a collateral reason to assist a litigant in his or her claim. The court exercises protective jurisdiction on behalf of an infant. In my considered opinion it would be unjust and not fair either to direct a test for a collateral reason to assist a litigant in his or her claim. The child cannot be allowed to suffer because of his incapacity; the aim is to ensure that he gets his rights. If in a case the court has reason to believe that the application for blood test is of a fishing nature or designed for some ulterior motive, it would be justified in not acceding to such a prayer." 21. "The above is the dicta laid down by the various High Courts. In matters of this kind the court must have regard to section 112 of the Evidence Act. This section is based on the well known maxim pater est quem nuptioe demonstrant (he is the father whom the marriage indicates). The presumption of legitimacy is this, that a child born of a married woman is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid, any that every person is legitimate. Marriage or filiation (parentage) may be presumed, the law in general presuming against vice and immoratility." 22. It is a rebuttable presumption of law that a child born. during the lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderannce of evidence, and not by a mere balance of probabilities. 23. In Smt. Dukhtar Jahan v. Mohammed Faroog, 1987 AIR (SC) 1049 this court held. "Section II 2 lays down that if a person was born during the continuance of a valid marriage between his mother and any man or within two hundren and eighty days after its dissolution and the mother remains unmarried, it shall be taken as conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at anytime when he could have been begotten. This rule of law based on the dictates of justice has always made the courts incline towards upholding the legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimation of the child would result in rank injustice to the father. Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basts of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman." 24. This section requires the party disputing the paternity to prove non-access in order to dispel the presumption. "Access" and "non-access" mean the existence or non- existence of opportunities for sexual intercourse; it does not mean actual cohabitation. 25. The effect of this section is this: there is a presumption and a very strong one though a reubttable one. Conclusive proof means as laid down under section 4 of the Evidence Act." 28. Subsequently, a three Judges Bench in Sharda Vs. Dharmpal, 2003 4 SCC 493 considered the question regarding holding of Blood Group test to ascertain paternity of the child. The following was observed by Court in paragraphs 38, 39, 54, 55, 56, 58, 59, 60, 76, 79 and 80: "38. In Goutam Kundu v. State of West Bengal and Anr. this Court while dealing with a question about the paternity of a child noticed the provision of Section 112 of the Evidence Act and held that the presumption arising thereunder can only be displaced by a strong preponderance of evidence and not by a mere balance of probabilities. It was held (SCC p. 428, para 26): "26. From the above discussion it emerges- (1) that courts in India cannot order blood test as a matter of course; (2) wherever applications are made for such prayers in order to having roving inquiry, the prayer for blood test cannot be entertained. (3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act. (3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act. (4) The court must carefully examine as to what would be the consequence of ordering the blood test, whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman. (5) No one can be compelled to give sample of blood for analysis". 39. Goutam Kundu (supra) is, therefore, not an authority for the proposition that under no circumstances the Court can direct that blood tests be conducted. It, having regard to the future of the child, has, of course, sounded a note of caution as regard mechanical passing of such order. In some other jurisdictions, it has been held that such directions should ordinarily be made if it is in the interest of the child. 54. The right to privacy has been developed by the Supreme Court over a period of time. A Bench of eight judges in M.P. Sharma v. Satish Chandra AIR at pp.306-07, para 8 in the context of search and seizure observed that: "When the Constitution makers have though fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction" 55. Similarly in Kharak Singh v. State of UP., 1963 AIR (SC) 1295, the majority judgment observed thus: (AIR p. 1303, parsa 20) "The right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III." 56. With the expansive interpretation of the phrase "personal liberty", this right has been read into Article 21 of the Indian Constitution. [See R. Rajagopal v. State of Tamil Nadu and Ors. 95, People's Union of Civil Liberties v. Union of India 97]. In some cases the right has been held to amalgam of various rights. 58. With the expansive interpretation of the phrase "personal liberty", this right has been read into Article 21 of the Indian Constitution. [See R. Rajagopal v. State of Tamil Nadu and Ors. 95, People's Union of Civil Liberties v. Union of India 97]. In some cases the right has been held to amalgam of various rights. 58. In Govind v. State of Madhya Pradesh and Anr., it was held: "Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a fundamental right, that fundamental right must be subject to restriction on the basis of compelling public interest." 59. If there were a conflict between fundamental rights of two parties, that right which advances public morality would prevail. [See Mr. X v. Hospital Z, 1998 8 SCC 296 and Mr. 'X' v. Hospital 'Z' 02]. In R. Rajagopal v. State of Tamil Nadu and Ors. this Court upon formulating six principles, however, hastened to add that they are only broad principles and neither exhaustive nor all comprehending and indeed no such enunciation is possible or advisable. 60. In Govind v. State of Madhya Pradesh and Anr. (supra) it was held: "28. The right to privacy in any event will necessarily have to go through a process of case- by-case development. Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy as an emanation from them which one can characterize as a fundamental right, we do not think that the right is absolute." 76. The matter may be considered from another angle. In all such matrimonial cases where divorce is sought, say on the ground of impotency, schizophrenia...etc. normally without there being medical examination, it would be difficult to arrive at a conclusion as to whether the allegation made by his spouse against the other spouses seeking divorce on such a ground, is correct or not. In order to substantiate such allegation, the petitioner would always insist on medical examination. If respondent avoids such medical examination on the ground that it violates his/her right to privacy or for a matter right to personal liberty as enshrined under Article 21 of the Constitution of India, then it may in most of such cases become impossible to arrive at a conclusion. If respondent avoids such medical examination on the ground that it violates his/her right to privacy or for a matter right to personal liberty as enshrined under Article 21 of the Constitution of India, then it may in most of such cases become impossible to arrive at a conclusion. It may render the very grounds on which divorce is permissible nugatory. Therefore, when there is no right to privacy specifically conferred by Article 21 of the Constitution of India and with the extensive interpretation of the phrase "personal liberty" this right has been read into Article 21, it cannot be treated as absolute right. What is emphasized is that some limitations on this right have to be imposed and particularly where two competing interests clash. In mattes of aforesaid nature where the legislature has conferred a right upon his spouse to seek divorce on such grounds, it would be the right of that spouse which comes in conflict with the so-called right to privacy of the respondent. Thus the Court has to reconcile these competing interests by balancing the interests involved. 79. If despite an order passed by the Court, a person refuses to submit himself to such medical examination, a strong case for drawing an adverse inference would be made out Section 114 of the Indian Evidence Act also enables a Court to draw an adverse inference if the party does not produce the relevant evidences in his power an possession. 80. So viewed, the implicit power of a court to direct medical examination of a party to a matrimonial litigation in a case of this nature cannot beheld to be violative of one's right of privacy." 29. Thereafter, in Bhabani Prasad Jena Vs. Convenor Secretary, Orissa State Commission for Women, 2010 8 SCC 633 , Court considered the questions of right to privacy and when can a direction be given to hold a D.N.A. Test. The two judges Bench specifically dealt with the question regarding propriety of holding a D.N.A. Test in the light of the provisions contained in Section 112 of Indian Evidence Act. The following has been observed by the Court in paragraph 15, 16, 17, 18, 19, 20, 21, 22, 23: "15. In Goutam Kundu v. State of West Bengal and Anr.1, this Court was concerned with a matter arising out of maintenance for child claimed by the wife. The following has been observed by the Court in paragraph 15, 16, 17, 18, 19, 20, 21, 22, 23: "15. In Goutam Kundu v. State of West Bengal and Anr.1, this Court was concerned with a matter arising out of maintenance for child claimed by the wife. The husband disputed the paternity of the child and prayed for blood group test of the child to prove that he was not the father of the child. This Court referred to Section 4 and Section 112 of the Evidence Act and also the decisions of English and American Courts and some authoritative texts including the following statement made in Rayden's Law and Practice in Divorce and Family Matters (1983), Vol. I, p. 1054 which reads thus: "Medical Science is able to analyse the blood of individuals into definite groups; and by examining the blood of a given man and a child to determine whether the man could or could not be the father. Blood tests cannot show positively that any man is father, but they can show positively that a given man could or could not be the father. It is obviously the latter aspect that proves most valuable in determining paternity, that is, the exclusion aspect, for once it is determined that a man could not be the father, he is thereby automatically excluded from considerations of paternity. When a man is not the father of a child, it has been said that there is at least a 70 per cent chance that if blood tests are taken they will show positively he is not the father, and in some cases the chance is even higher; between two given men who have had sexual intercourse with the mother at the time of conception, both of whom undergo blood tests, it has likewise been said that there is a 90 per cent chance that the tests will show that one of them is not the father with the irresistible inference that the other is the father." 16. This Court then finally concluded, thus : "(1) that courts in India cannot order blood test as a matter of course; (2) wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained. This Court then finally concluded, thus : "(1) that courts in India cannot order blood test as a matter of course; (2) wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained. (3) There must be a strong prima facie case in that the husband must establish non- access in order to dispel the presumption arising under Section 112 of the Evidence Act. (4) The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman. (5) No one can be compelled to give sample of blood for analysis." 17. In Sharda v. Dharmpal, 2003 4 SCC 493 , a three-Judge Bench was concerned with the question whether a party to the divorce proceedings can be compelled to a medical examination. That case arose out of an application for divorce filed by the husband against the wife under Section 13(1)(iii) of the Hindu Marriage Act, 1955. In other words, the husband claimed divorce on the ground that wife has been incurably of unsound mind or has been suffering from mental disorder. The Court observed, "Goutam Kundu is, therefore, not an authority for the proposition that under no circumstances the Court can direct that blood tests be conducted. It, having regard to the future of the child, has, of course, sounded a note of caution as regards mechanical passing of such order. In some other jurisdictions, it has been held that such directions should ordinarily be made if it is in the interest of the child." 18. While dealing with the aspect as to whether subjecting a person to a medical test is violative of Article 21 of the Constitution of India, it was stated that the right to privacy in terms of Article 21 of the Constitution is not an absolute right. This Court summed up conclusions thus : (2003) 4 SCC 493 " 1. A matrimonial court has the power to order a person to undergo medical test. 2. Passing of such an order by the court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution. 3. This Court summed up conclusions thus : (2003) 4 SCC 493 " 1. A matrimonial court has the power to order a person to undergo medical test. 2. Passing of such an order by the court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution. 3. However, the Court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the Court. If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against him." 19. In Banarsi Dass v. Teeku Dutta & Anr.3, this Court was concerned with a case arising out of succession certificate. The allegation was that Teeku Dutta was not the daughter of the deceased. An application was made to subject Teeku Dutta to DNA test. The High Court held that trial court being a testamentary court, the parties should be left to prove their respective cases on the basis of the evidence produced during trial, rather than creating evidence by directing DNA test. When the matter reached this Court, few decisions of this Court, particularly, Goutam Kundu1 was noticed and it was held that even the result of a genuine DNA test may not be enough to (2005) 4 SCC 449 escape from the conclusiveness of Section 112 of the Evidence Act like a case where a husband and wife were living together during the time of conception. This is what this Court said : "13. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with deoxyribonucleic acid (DNA) as well as ribonucleic acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Evidence Act e.g. if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain irrebuttable. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the innocent child from being bastardised if his mother and her spouse were living together during the time of conception. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in the light of what is meant by access or non-access as delineated above." It was emphasized that DNA test is not to be directed as a matter of routine and only in deserving cases such a direction can be given. 20. Recently, in the case of Ramkanya Bai v. Bharatram 4 decided by the Bench of which one of us, R.M. Lodha, J. was the member, the order of the High Court directing DNA of the child at the instance of the husband was set aside and it was held that the High Court was not justified in allowing the application for grant of DNA of the child on the ground that there will be possibility of reunion of the parties if such DNA was conducted and if it was found from the outcome of the DNA that the son was born out of the wedlock of the parties. 21. In a matter where paternity of a child is in issue before the court, the use of DNA is an extremely delicate and sensitive aspect. One view is that when modern science gives means of ascertaining the paternity of a child, there should not be any hesitation to use those means whenever the occasion requires. The other view is that the court must be reluctant in use of such scientific advances and tools which result in invasion of right to privacy of an individual and may not only be prejudicial to the rights of the parties but may have devastating effect on the child. Sometimes the result of such scientific test may bastardise an innocent child even though his mother and her spouse were living together during the time of conception. 22. Sometimes the result of such scientific test may bastardise an innocent child even though his mother and her spouse were living together during the time of conception. 22. In our view, when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA is eminently needed. DNA in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of 'eminent need' whether it is not possible for the court to reach the truth without use of such test. 23. There is no conflict in the two decisions of this Court, namely, Goutam Kundu1 and Sharda 2. In Goutam Kundu1, it has been laid down that courts in India cannot order blood test as a matter of course and such prayers cannot be granted to have roving inquiry; there must be strong prima facie case and court must carefully examine as to what would be the consequence of ordering the blood test. In the case of Sharda while concluding that a matrimonial court has power to order a person to undergo a medical test, it was reiterated that the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the court. Obviously, therefore, any order for DNA can be given by the court only if a strong prima facie case is made out for such a course." 30. In Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik and another, 2014 2 SCC 576 , Court considered the question of presumption in the light in section 4, section 101 to 117 of Indian Evidence Act and also the propriety of holding D.N.A. Test to judge the legitimacy of a child. The following was observed by Court in paragraphs 14, 15, 16, 17, 18 : "14. Lata Nandlal Badwaik and another, 2014 2 SCC 576 , Court considered the question of presumption in the light in section 4, section 101 to 117 of Indian Evidence Act and also the propriety of holding D.N.A. Test to judge the legitimacy of a child. The following was observed by Court in paragraphs 14, 15, 16, 17, 18 : "14. Now we have to consider as to whether the DNA test would be sufficient to hold that the appellant is not the biological father of respondent no. 2, in the face of what has been provided under Section 112 of the Evidence Act, which reads as follows: "112. Birth during marriage, conclusive proof of legitimacy.- The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten." From a plain reading of the aforesaid, it is evident that a child born during the continuance of a valid marriage shall be a conclusive proof that the child is a legitimate child of the man to whom the lady giving birth is married. The provision makes the legitimacy of the child to be a conclusive proof, if the conditions aforesaid are satisfied. It can be denied only if it is shown that the parties to the marriage have no access to each other at any time when the child could have been begotten. 15. Here, in the present case, the wife had pleaded that the husband had access to her and, in fact, the child was born in the said wedlock, but the husband had specifically pleaded that after his wife left the matrimonial home, she did not return and thereafter, he had no access to her. The wife has admitted that she had left the matrimonial home but again joined her husband. Unfortunately, none of the courts below have given any finding with regard to this plea of the husband that he had or had not any access to his wife at the time when the child could have been begotten. 16. The wife has admitted that she had left the matrimonial home but again joined her husband. Unfortunately, none of the courts below have given any finding with regard to this plea of the husband that he had or had not any access to his wife at the time when the child could have been begotten. 16. As stated earlier, the DNA test is an accurate test and on that basis it is clear that the appellant is not the biological father of the girl- child. However, at the same time, the condition precedent for invocation of Section 112 of the Evidence Act has been established and no finding with regard to the plea of the husband that he had no access to his wife at the time when the child could have been begotten has been recorded. Admittedly, the child has been born during the continuance of a valid marriage. Therefore, the provisions of Section 112 of the Evidence Act conclusively prove that respondent No. 2 is the daughter of the appellant. At the same time, the DNA test reports, based on scientific analysis, in no uncertain terms suggest that the appellant is not the biological father. In such circumstance, which would give way to the other is a complex question posed before us. 17. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the Legislature. The result of DNA test is said to be scientifically accurate. Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, in our opinion, there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. Interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. Interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former. 18. We must understand the distinction between a legal fiction and the presumption of a fact. Legal fiction assumes existence of a fact which may not really exist. However presumption of a fact depends on satisfaction of certain circumstances. Those circumstances logically would lead to the fact sought to be presumed. Section 112 of the Evidence Act does not create a legal fiction but provides for presumption." 31. From the aforesaid judgment of the Apex Court, it is clear that once the order for D.N.A. Test has been passed and D.N.A test has been conducted, the result of D.N.A. Test cannot be brushed aside. The same will have to be given effect to even if the circumstances justifying attraction of presumption as contemplated under section 112 of Indian Evidence Act exists. This judgment therefore, does not directly deal with the issue in hand. 32. Coming to the judgment relied upon by learned counsel for the plaintiff-appellant i.e. Dipanwita Roy Vs. Ronobroto Roy (Supra), Court considered the question of the presumption arising out under section 112 and the necessity of holding D.N.A. test. The Court Bench referred to the provisions of Section 112 and thereafter observed as follows in paragraphs 9, 10, 11, 13, 14, 15, 17, 18: "9. Learned counsel for the appellant-wife, in the first instance, invited our attention to Section 112 of the Indian Evidence Act. The same is being extracted hereunder: "112. The Court Bench referred to the provisions of Section 112 and thereafter observed as follows in paragraphs 9, 10, 11, 13, 14, 15, 17, 18: "9. Learned counsel for the appellant-wife, in the first instance, invited our attention to Section 112 of the Indian Evidence Act. The same is being extracted hereunder: "112. Birth during marriage, conclusive proof of legitimacy- The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten." Based on the aforesaid provision, learned counsel for the appellant-wife drew our attention to decision rendered by the Privy Council in Karapaya Servai v. Mayandi, 1934 AIR (PC) 49, wherein it was held, that the word 'access' used in Section 112 of the Evidence Act, connoted only the existence of an opportunity for marital intercourse, and in case such an opportunity was shown to have existed during the subsistence of a valid marriage, the provision by a fiction of law, accepted the same as conclusive proof of the fact that the child born during the subsistence of the valid marriage, was a legitimate child. It was the submission of the learned counsel for the appellant-wife, that the determination of the Privy Council in Karapaya Servai's case (supra) was approved by this Court in Chilukuri Venkateshwarly vs. Chilukuri Venkatanarayana, 1954 SCR 424 . 10. Learned counsel for the appellant-wife also invited our attention to a decision rendered by this Court in Goutam Kundu vs. State of West Bengal and another, 1993 3 SCC 418 , wherein this Court, inter alia, held as under: "(1) That Courts in India cannot order blood test as a matter of course. (2) Wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained. (3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act. (2) Wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained. (3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act. (4) The Court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman. (5) No one can be compelled to give sample of blood for analysis." Reliance was also placed on the decision rendered by this Court in Kamti Devi and another v. Poshi Ram, 2001 AIR (SC) 2226, wherefrom, the following observations made by this Court, were sought to be highlighted: "9. But Section 112 itself provides an outlet to the party who wants to escape from the rigour of that conclusiveness. The said outlet is, if it can be shown that the parties had no access to each other at the time when the child could have been begotten the presumption could be rebutted. In other words, the party who wants to dislodge the conclusiveness has the burden to show a negative, not merely that he did not have the opportunity to approach his wife but that she too did not have the opportunity of approaching him during the relevant time. Normally, the rule of evidence in other instances is that the burden is on the party who asserts the positive, but in this instance the burden is cast on the party who pleads the negative. The raison d'etre is the legislative concern against illegitimatizing a child. It is a sublime public policy that children should not suffer social disability on account of the laches or lapses of parents. 10. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with Dioxy Nucleric Acid (DNA) as well as Ribonucleic Acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. 10. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with Dioxy Nucleric Acid (DNA) as well as Ribonucleic Acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Act, e.g., if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain unrebuttable. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the innocent child from being bastardized if his mother and her spouse were living together during the time of conception. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in the light of what is meant by access or non-access as delineated above. 11.....Its corollary is that the burden of the plaintiff-husband should be higher than the standard of preponderance of probabilities. The standard of proof in such cases must at least be of a degree in between the two as to ensure that there was no possibility of the child being conceived through the plaintiff-husband. "(emphasis is ours) 11. Lastly, learned counsel for the appellant-wife, placed reliance on the decision rendered by this Court in Sham Lal @ Kuldeep vs. Sanjeev Kumar and others, 2009 12 SCC 454 , wherein it was inter alia, held as under: "Once the validity of marriage is proved then there is strong presumption about the legitimacy of children born from that wedlock. The presumption can only be rebutted by a strong, clear, satisfying and conclusive evidence. The presumption cannot be displaced by mere balance of probabilities or any circumstance creating doubt. Even the evidence of adultery by wife which though amounts to very strong evidence, it, by itself, is not quite sufficient to repel this presumption and will not justify finding of illegitimacy if husband has had access. The presumption cannot be displaced by mere balance of probabilities or any circumstance creating doubt. Even the evidence of adultery by wife which though amounts to very strong evidence, it, by itself, is not quite sufficient to repel this presumption and will not justify finding of illegitimacy if husband has had access. In the instant case, admittedly the plaintiff and Defendant 4 were born to D during the continuance of her valid marriage with B. Their marriage was in fact never dissolved. There is no evidence on record that B at any point of time did not have access to D." (emphasis is ours). 13. All the judgments relied upon by the learned counsel for the appellant were on the pointed subject of the legitimacy of the child born during the subsistence of a valid marriage. The question that arises for consideration in the present appeal, pertains to the alleged infidelity of the appellant-wife. It is not the husband's desire to prove the legitimacy or illegitimacy of the child born to the appellant. The purpose of the respondent is, to establish the ingredients of Section 13(1)(ii) of the Hindu Marriage Act, 1955, namely, that after the solemnisation of the marriage of the appellant with the respondent, the appellant had voluntarily engaged in sexual intercourse, with a person other than the respondent. There can be no doubt, that the prayer made by the respondent for conducting a DNA test of the appellant's son as also of himself, was aimed at the alleged adulterous behaviour of the appellant. In the determination of the issue in hand, undoubtedly, the issue of legitimacy will also be incidentally involved. Therefore, insofar as the present controversy is concerned, Section 112 of the Indian Evidence Act would not strictly come into play. 14. A similar issue came to be adjudicated upon by this Court in Bhabani Prasad Jena vs. Convenor Secretary, Orissa State Commission for Women and another, 2010 8 SCC 633 , wherein this Court held as under: "21. In a matter where paternity of a child is in issue before the court, the use of DNA test is an extremely delicate and sensitive aspect. One view is that when modern science gives the means of ascertaining the paternity of a child, there should not be any hesitation to use those means whenever the occasion requires. In a matter where paternity of a child is in issue before the court, the use of DNA test is an extremely delicate and sensitive aspect. One view is that when modern science gives the means of ascertaining the paternity of a child, there should not be any hesitation to use those means whenever the occasion requires. The other view is that the court must be reluctant in the use of such scientific advances and tools which result in invasion of right to privacy of an individual and may not only be prejudicial to the rights of the parties but may have devastating effect on the child. Sometimes the result of such scientific test may bastardise an innocent child even though his mother and her spouse were living together during the time of conception. 22. In our view, when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA test is eminently needed. DNA test in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of "eminent need" whether it is not possible for the court to reach the truth without use of such test. 23. There is no conflict in the two decisions of this ourt, namely, Goutam Kundu vs. State of West Bengal, 1993 3 SCC 418 and Sharda vs. Dharmpal, 2003 4 SCC 493 . In Goutam Kundu, it has been laid down that courts in India cannot order blood test as a matter of course and such prayers cannot be granted to have roving inquiry; there must be strong prima facie case and the court must carefully examine as to what would be the consequence of ordering the blood test. In Goutam Kundu, it has been laid down that courts in India cannot order blood test as a matter of course and such prayers cannot be granted to have roving inquiry; there must be strong prima facie case and the court must carefully examine as to what would be the consequence of ordering the blood test. In Sharda, while concluding that a matrimonial court has power to order a person to undergo a medical test, it was reiterated that the court should exercise such a power if the applicant has a strong prime facie case and there is sufficient material before the court. Obviously, therefore, any order for DNA test can be given by the court only if a strong prima facie case is made out for such a course. 24. Insofar as the present case is concerned, we have already held that the State Commission has no authority, competence or power to order DNA test. Looking to the nature of proceedings with which the High Court was concerned, it has to be held that the High Court exceeded its jurisdiction in passing the impugned order. Strangely, the High Court overlooked a very material aspect that the matrimonial dispute between the parties is already pending in the court of competent jurisdiction and all aspects concerning matrimonial dispute raised by the parties in that case shall be adjudicated and determined by that court. Should an issue arise before the matrimonial court concerning the paternity of the child, obviously that court will be competent to pass an appropriate order at the relevant time in accordance with law. In any view of the matter, it is not possible to sustain the order passed by the High Court. "(emphasis is ours) It is therefore apparent, that despite the consequences of a DNA test, this Court has concluded, that it was permissible for a Court to permit the holding of a DNA test, if it was eminently needed, after balancing the interests of the parties. 15. Recently, the issue was again considered by this Court in Nandlal Wasudeo Badwaik vs. Lata Nandlal Badwaik and another, 2014 2 SCC 576 , wherein this Court held as under: "15. 15. Recently, the issue was again considered by this Court in Nandlal Wasudeo Badwaik vs. Lata Nandlal Badwaik and another, 2014 2 SCC 576 , wherein this Court held as under: "15. Here, in the present case, the wife had pleaded that the husband had access to her and, in fact, the child was born in the said wedlock, but the husband had specifically pleaded that after his wife left the matrimonial home, she did not return and thereafter, he had no access to her. The wife has admitted that she had left the matrimonial home but again joined her husband. Unfortunately, none of the courts below have given any finding with regard to this plea of the husband that he had not any access to his wife at the time when the child could have been begotten. 16. As stated earlier, the DNA test is an accurate test and on that basis it is clear that the appellant is not the biological father of the girl child. However, at the same time, the condition precedent for invocation of Section 112 of the Evidence Act has been established and no finding with regard to the plea of the husband that he had no access to his wife at the time when the child could have been begotten has been recorded. Admittedly, the child has been born during the continuance of a valid marriage. Therefore, the provisions of Section 112 of the Evidence Act conclusively prove that Respondent 2 is the daughter of the appellant. At the same time, the DNA test reports, based on scientific analysis, in no uncertain terms suggest that the appellant is not the biological father. In such circumstances, which would give way to the other is a complex question posed before us. 17. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the legislature. The result of DNA test is said to be scientifically accurate. Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, in our opinion, there is no need or room for any presumption. Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, in our opinion, there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. The interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former. 18. We must understand the distinction between a legal fiction and the presumption of a fact. Legal fiction assumes existence of a fact which may not really exist. However, a presumption of a fact depends on satisfaction of certain circumstances. Those circumstances logically would lead to the fact sought to be presumed. Section 112 of the Evidence Act does not create a legal fiction but provides for presumption. 19. The husband's plea that he had no access to the wife when the child was begotten stands proved by the DNA test report and in the face of it, we cannot compel the appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary. We are conscious that an innocent child may not be bastardised as the marriage between her mother and father was subsisting at the time of her birth, but in view of the DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth. "Truth must triumph" is the hallmark of justice." (emphasis is ours) This Court has therefore clearly opined, that proof based on a DNA test would be sufficient to dislodge, a presumption under Section 112 of the Indian Evidence Act. 16. It is denying the truth. "Truth must triumph" is the hallmark of justice." (emphasis is ours) This Court has therefore clearly opined, that proof based on a DNA test would be sufficient to dislodge, a presumption under Section 112 of the Indian Evidence Act. 16. It is borne from the decisions rendered by this Court in Bhabani Prasad Jena (supra), and Nandlal Wasudeo Badwaik (supra), that depending on the facts and circumstances of the case, it would be permissible for a Court to direct the holding of a DNA examination, to determine the veracity of the allegation(s), which constitute one of the grounds, on which the concerned party would either succeed or lose. There can be no dispute, that if the direction to hold such a test can be avoided, it should be so avoided. The reason, as already recorded in various judgments by this Court, is that the legitimacy of a child should not be put to peril. 17. The question that has to be answered in this case, is in respect of the alleged infidelity of the appellant-wife. The respondent-husband has made clear and categorical assertions in the petition filed by him under Section 13 of the Hindu Marriage Act, alleging infidelity. He has gone to the extent of naming the person, who was the father of the male child born to the appellant-wife. It is in the process of substantiating his allegation of infidelity, that the respondent-husband had made an application before the Family Court for conducting a DNA test, which would establish whether or not, he had fathered the male child born to the appellant-wife. The respondent feels that it is only possible for him to substantiate the allegations levelled by him (of the appellant-wife's infidelity) through a DNA test. We agree with him. In our view, but for the DNA test, it would be impossible for the respondent-husband to establish and confirm the assertions made in the pleadings. We are therefore satisfied, that the direction issued by the High Court, as has been extracted hereinabove, was fully justified. DNA testing is the most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity. We are therefore satisfied, that the direction issued by the High Court, as has been extracted hereinabove, was fully justified. DNA testing is the most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity. This should simultaneously be taken as the most authentic, rightful and correct means also with the wife, for her to rebut the assertions made by the respondent-husband, and to establish that she had not been unfaithful, adulterous or disloyal. If the appellant-wife is right, she shall be proved to be so. 18. We would, however, while upholding the order passed by the High Court, consider it just and appropriate to record a caveat, giving the appellant-wife liberty to comply with or disregard the order passed by the High Court, requiring the holding of the DNA test. In case, she accepts the direction issued by the High Court, the DNA test will determine conclusively the veracity of accusation levelled by the respondent-husband, against her. In case, she declines to comply with the direction issued by the High Court, the allegation would be determined by the concerned Court, by drawing a presumption of the nature contemplated in Section 114 of the Indian Evidence Act, especially, in terms of illustration (h) thereof. Section 114 as also illustration (h), referred to above, are being extracted hereunder: "114. Court may presume existence of certain facts - The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration (h) - That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him." This course has been adopted to preserve the right of individual privacy to the extent possible. Of course, without sacrificing the cause of justice. By adopting the above course, the issue of infidelity alone would be determined, without expressly disturbing the presumption contemplated under Section 112 of the Indian Evidence Act. Even though, as already stated above, undoubtedly the issue of legitimacy would also be incidentally involved. 33. Thus from the law as discussed above, Court in Dipanwita Roy Vs. By adopting the above course, the issue of infidelity alone would be determined, without expressly disturbing the presumption contemplated under Section 112 of the Indian Evidence Act. Even though, as already stated above, undoubtedly the issue of legitimacy would also be incidentally involved. 33. Thus from the law as discussed above, Court in Dipanwita Roy Vs. Ronobroto Roy, (Supra) relied upon by the learned counsel for the appellant is of no help as the aforesaid judgment is in respect of a case where infidelity of the spouse is sought to be established. From the perusal of plaint of divorse petition, we find that no such plea regarding infedility of spouse was pleaded and therefore, no benefit can be derived from the aforesaid judgment. The law laid down by the three judges Bench in the case of Sharda Vs. Dharampal (Supra) holds the field. The following conclusions were drawn by Court in the aforesaid judgment : "1. A matrimonial court has the power to order a person to undergo medical test. 2. Passing of such an order by the Court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution. 3. However, the Court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the Court. If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against him." 34. Thus the point of determination No. 3 involved in the present appeal has to be decided in the light of the third conclusion drawn in Sharda Vs. Dharmpal (Supra). As already noted above, except for the two pathological reports, there is no other material relied upon by plaintiff-appellant, in support of his application (paper No. 42 Ga) for getting the D.N.A. test of the minor girl. Court below has disbelieved pathological report as plaintiff-appellant could not establish as to how the said reports were obtained by him. Apart from the aforesaid, we further find that there is no allegations of adultery against the defendant-respondent, on the basis of which, infidelity of spouse could be established. There is no pleading to the effect that during subsistence of marriage, plaintiff-appellant had never any access to the defendant-respondent, whereas, the testimony of D.W.1 the defendant-respondent and D.W. proves to the contrary. There is no pleading to the effect that during subsistence of marriage, plaintiff-appellant had never any access to the defendant-respondent, whereas, the testimony of D.W.1 the defendant-respondent and D.W. proves to the contrary. As such, the second point of determination, is answered against appellant. 35. So far as the third point of determination is concerned we find from the perusal of plaint that no such ground was pleaded in the plaint. Therefore, question that crops up for consideration is "whether a decree of reversal can be passed on a ground which was not the subject matter of adjudication before the Court below." 36. The issue relating to irretrievable break down of marriage has been considered by a Division Bench of this Court in First Appeal No. 525 of 2006 (Smt. Kavita Sharma Vs. Neeraj Sharma) decided on 7.2.2018, wherein it has been observed as follows in paragraph 28:- "28. The above findings recorded by Court below could not be shown perverse or contrary to record. Having considered the fact that parties are living separately from decades, we are also of the view that marriage between two is irretrievable and has broken down completely. Irretrievable breakdown of marriage is not a ground for divorce under Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, Courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the Court's verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried-up there is hardly any chance of their springing back to life on account of artificial reunion created by the Court's decree. On the ground of irretrievable marriage, Courts have allowed decree of divorce and reference may be made to Naveen Kohli v. Neelu Kohli, 2006 4 SCC 558 and Rishikesh Sharma Vs. Saroj Sharma, 2006 12 SCALE 282 . It is also noteworthy that in Naveen Kohli v. Neelu Kohli (supra) Court made recommendation to Union of India that Act, 1955 be amended to incorporate irretrievable breakdown of marriage as a ground for grant of divorce. " 37. Similarly this Court in First Appeal No. 792 of 2008 (Ashwani Kumar Kohli Vs. Saroj Sharma, 2006 12 SCALE 282 . It is also noteworthy that in Naveen Kohli v. Neelu Kohli (supra) Court made recommendation to Union of India that Act, 1955 be amended to incorporate irretrievable breakdown of marriage as a ground for grant of divorce. " 37. Similarly this Court in First Appeal No. 792 of 2008 (Ashwani Kumar Kohli Vs. Smt. Anita) decided on 17.11.2016 has also considered this question and observed as follows in paragraphs 7, 8, 10, 11, 12 and 13:- "7. Therefore, point for adjudication in this appeal is "whether a decree of reversal can be passed by granting divorce to the appellant on the ground which was not subject matter of adjudication before the Court below and is being raised for the first time in appeal". 8. Under the provisions of Act, 1955 there is no ground like any "irretrievable breakdown of marriage", justifying divorce. It is a doctrine laid down by judicial precedents, in particular, Supreme Court in exercise of powers under Article 142 of the Constitution has granted decree of divorce on the ground of irretrievable breakdown of marriage. 10. This aspect has been considered by this Court in Ram Babu Babeley Vs. Smt. Sandhya, 2006 AIR (All) 12 : 2006 AWC 183 and it has laid down certain inferences from various authorities of Supreme Court, which read as under:- "(i) The irretrievable break down of marriage is not a ground for divorce by itself. But while scrutinizing the evidence on record to determine whether the grounds on which divorce is sought are made out, this circumstance can be taken into consideration as laid down by Hon'ble Apex Court in the case of Savitri Pandey v. prem Chand Pandey, 2002 2 SCC 73 and V. Bhagat versus D. Bhagat, 1994 AIR (SC) 710. (ii) No divorce can be granted on the ground of irretrievable break down of marriage if the party seeking divorce on this ground is himself or herself at fault for the above break down as laid down in the case of Chetan Dass Versus Kamla Devi, 2001 AIR (SC) 1709, Savitri Pandey v. prem Chand Pandey, 2002 2 SCC 73 and Shyam Sunder Kohli v. Sushma Kohli, 2004 7 SCC 747 . (iii) The decree of divorce on the ground that the marriage had been irretrievably broken down can be granted in those cases where both the parties have levelled such allegations against each other that the marriage appears to be practically dead and the parties can not live together as laid down in Chandra Kala Trivedi versus Dr. SP Trivedi, 1993 4 SCC 232 . (iv)The decree of divorce on the ground that the marriage had been irretrievably broken down can be granted in those cases also where the conduct or averments of one party have been so much painful for the other party ( who is not at fault) that he cannot be expected to live with the offending party as laid down in the cases of V. Bhagat versus D. Bhagat, (supra), Ramesh Chander versus Savitri, 1995 2 SCC 7 , Ashok Hurra versus Rupa Bipin Zaveri, 1997 3 AWC 1843 (SC), 1997(3) A.W.C. 1843 (SC) and A. Jayachandra versus Aneel Kaur, 2005 2 SCC 22 . (v) The power to grant divorce on the ground of irretrievable break down of marriage should be exercised with much care and caution in exceptional circumstances only in the interest of both the parties, as observed by Hon'ble Apex Court at paragraph No. 21 of the judgment in the case of V. Bhagat and Mrs. D. Bhagat, AIR (supra) and at para 12 in the case of Shyam Sunder Kohli versus Sushma Kohli, (supra)." 11. The above authorities have been followed by this Court in ''Pradeep Kumar Vs. Smt. Vijay Lakshmi, 2015 4 AllLJ 667 wherein one of us (Hon'ble Sudhir Agarwal,J.) was a member of the Bench. 12. In Vishnu Dutt Sharma Vs. Manju Sharma, 2009 6 SCC 379 , it was held that under Section 13 of Act 1955 there is no ground of irretrievable breakdown of marriage for granting decree of divorce. Court said that it cannot add such a ground to Section 13, as that would amount to amendment of Act, which is the function of legislature. It also referred to some judgments of Supreme Court in which dissolution of marriage was allowed on the ground of irretrievable breakdown but held that those judgments do not lay down any precedent. Court said that it cannot add such a ground to Section 13, as that would amount to amendment of Act, which is the function of legislature. It also referred to some judgments of Supreme Court in which dissolution of marriage was allowed on the ground of irretrievable breakdown but held that those judgments do not lay down any precedent. Supreme Court very categorically observed as under:- "If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Court. Hence, we do not find force in the submission of learned counsel for the appellant." 13. The above view has been followed in Darshan Gupta Vs. Radhika Gupta, 2013 9 SCC 1 . Similar view was expressed in ''Gurubux Singh Vs. Harminder Kaur, 2010 14 SCC 301 . This Court also has followed the above view in Shailesh Kumari Vs. Amod Kumar Sachan, 2016 115 AllLR 689 ." 38. In the case in hand, we find that the parties have not been living separately on account of their own free will. The record shows, it is the plaintiff-appellant, who has refused to keep defendant-respondent with him. The defendant-respondent has continuously and consistently pleaded that she wants to live with plaintiff-appellant. In this view of the matter, the argument raised by the learned counsel for the appellant that there has been an irretrievable break down of marriage has no factual foundation. That apart this Court in Ashwani Kumar Kohli (supra) has clearly held that the divorce cannot be granted on the aforesaid ground particularly when such a plea is raised by one party alone. In addition to the aforesaid, decree of divorce was not prayed for on the ground of irretrievable break down of marriage as the parties are alleged to have been living separately since 02.07.2004. The plaint was presented in the year 2004 whereas divorce petition was finally decided vide judgment dated 27.03.2012 and decree dated 10.04.2012 passed by the Principal Judge (Family Court), Varanasi in Petition No. 360 of 2004 (Rajesh Kumar Chaudhary Vs. Savita). The plaint was presented in the year 2004 whereas divorce petition was finally decided vide judgment dated 27.03.2012 and decree dated 10.04.2012 passed by the Principal Judge (Family Court), Varanasi in Petition No. 360 of 2004 (Rajesh Kumar Chaudhary Vs. Savita). For a period of eight long years, plaintiff-appellant kept quiet and now for the first time, this issue is being raised. We are of the considered opinion that in view of the discussion made herein above, plaintiff-appellant is estopped from raising this plea. 39. The defendant-respondent has filed an application in the year 2013 for payment of interim maintenance in terms of Section 24 of Act, 1955 during the pendency of the appeal. From the record, it appears that plaintiff-appellant was directed to pay a sum of Rs. 3,000/- to the defendant-respondent towards interim maintenance. However, payment of interim maintenance to the defendant-respondent came to an end with the passing of the final judgment and decree. So long as defendant-respondent continues to be the legally wedded wife of plaintiff-appellant the plaintiff-appellant, he has a legal as well as moral obligation to maintain her. There is nothing on record to show that the plaintiff-appellant has maintained his wife even subsequent to the judgment and decree passed by Court below. We accordingly allow the application for interim maintenance filed by defendant-respondent, i.e. Civil Misc. Application No. 28761 of 2013 and accordingly direct plaintiff-appellant to pay interim maintenance @ Rs. 5,000/- per month from April, 2012 till July 2019. The entire amount shall be deposited by plaintiff-appellant before Court below within a period of one month from the date of the judgment, failing which Court below shall proceed to recover the same. 40. No other point was pressed before us. Consequently, appeal fails and is therefore liable to be dismissed. It is accordingly dismissed with costs. 91. The cause of occurrence has been shown to be quarrel which happened one week prior to the occurrence on account of playing volleyball, but in this regard he had not recorded the statement of independent witnesses, although in this regard the witnesses had made statements to him. It is accordingly dismissed with costs. 91. The cause of occurrence has been shown to be quarrel which happened one week prior to the occurrence on account of playing volleyball, but in this regard he had not recorded the statement of independent witnesses, although in this regard the witnesses had made statements to him. The witness Irfan had not told him that he and his brother, after having returned from the field, were taking off fodder from the buggi to be placed on fodder machine nor had he given this statement that when women of the house raised alarm and sound of country made pistol were heard, due to fear people had assembled. This witness had also not stated to him that after putting his injured brother in the vehicle, first of all he came to the police Chauki of the village and from there he took along a police constable and then they went to the hospital. Witness Raiyyan had not stated to him that fodder machine was being run with hand, leaving which they fled and the fodder was left lying there. This witness had not told him that at the time of occurrence they were cutting fodder. This witness has further stated that he could not find any such evidence during investigation that injured Raiyyan Khalil and Shakir had remained admitted for the treatment. He has denied that he did not make independent investigation and entire investigation was done by him sitting at the police station and filed charge sheet. 92. This witness is a formal witness but his statement is of enormous importance as he has conducted the investigation in this case. He has denied that he did not make independent investigation and entire investigation was done by him sitting at the police station and filed charge sheet. 92. This witness is a formal witness but his statement is of enormous importance as he has conducted the investigation in this case. There are few noteworthy points which need to be taken into consideration particularly the statement made by this witness that he did not find blood at any other place except at the places shown by 'B' and 'C' which meant that he did not find any blood at the place shown by 'X' where the deceased was found lying in injured condition on the third storey of the house of the informant, which is a little intriguing for us because the above-mentioned eye-witnesses particularly PW 1 and PW 2 have clearly stated that the deceased had run to the third floor of his house to save his life who was pursued by the accused and was being fired upon continuously, therefore in such a situation there was likelihood of the blood being found on the said place shown by 'X' at the third floor. But we find that this appears to be lacuna on the part of the investigating officer not to have collected blood from there, the benefit of which cannot be allowed to go to the accused. There are few other statements also made by this witness such as him not having found any mark of fire made on the walls of the gher, even though it is a prosecution case that there firing was made by the accused persons, it was argued that had there been made such kind of firing, certainly such kind of marks would have been found and also the cattle which were tied there would also have received injuries and therefore being found nothing of the sort there would create doubt in the mind of prudent person about the prosecution version being true. We are not much impressed by the said argument because it was not necessary that such marks would have been found on the walls because that would depend upon the intensity of the fire and also in evidence it has come that cattle were tied on one side, and it could be possible that on the said side fires may not have been made. This witness has also stated that the injured on the side of the complainant namely, Raiyyan Khalil and Shakir had not received serious injuries because of which he had not collected supplementary medical examination report of the injured persons, but that would not mean that the said injured had not received injuries in this occurrence. The Doctor has proved that these injured had received injuries and since lacerated wound is found, it could not be ruled out that they would have been caused by the fire arm. There appears to be lapse on the part of investigating officer in not making serious investigation as per his own admission and the case of accused Sarfaraz having been fired upon by Naseem, Khalil and his brothers on the pretext that it was not permissible under the U.P. Police Rules although he has admitted that he had full knowledge that there was a cross case being crime no. 163A/10 registered at the same PS which was being investigated by S.I. Bagesh Kumar Sharma, who had filed charge sheet against the complainant side in this case and the same was perused by this witness. It would be appropriate for this witness, who has investigated the present case to have investigated the said matter as well to reach the right conclusion as to who was the aggressor or whether both the sides were involved in free fight in which injuries were suffered on both the sides. Be that as it may, we have to form an opinion on the basis of evidence which has been placed before us. We find that whatever discrepancies have been noticed in the statement made by this witness in respect of the statements which were given before him by PW 1, 2 and 3 who are eye-witnesses, do not appear to relate to the material aspect of the case and such contradictions of the prosecution may be overlooked keeping in view the fact that in a matter of assault like the present one when large number of the accused were assaulting the deceased and the other injured by fire arms, it could be possible certainly omissions/commissions could be there which should be taken to be natural. Therefore the testimony of this witness is found to be in favour of the prosecution and does not appear to suffer from any serious lacuna. 93. Therefore the testimony of this witness is found to be in favour of the prosecution and does not appear to suffer from any serious lacuna. 93. S.I. Baljor Singh has been examined as P.W. 9 who has stated that on 27/02/2010 he was posted as SI at PS Shahpur and on that day he was assigned the investigation of case crime no. 165 of 2010 under sections 25/27 State vs. Sarfaraz and also of crime no. 166/2010 under sections 25/27 vs. Sahid. On 27/02/2010 he had copied chick F.I.R., GD and had taken statement of the constable clerk Sahab Singh, statement of accused Sarfaraz and Sahid in Parcha 1 and also took a statement of SI Anil Singh and constable 34 Jitendra Singh. On 3/3/2010 he took the statement of informant SHO Promod Panwar, constable 388 Samaryab and at the instance of S.I., Anek Singh made the spot inspection and prepared site plan. The original site plan was kept on the file of ST No. 958/2010 which is paper no. 8 in his handwriting and the same has been exhibited as Exhibit Ka 23 and a carbon copy of the same is placed on the file of ST no. 959/2010 which is paper no. 7 and which is marked Exhibit Ka 24. On 04/03/2010, he filed charge sheet no. 40/2010 in crime no. 165 of 2010 which is paper no. 3 and is marked Exhibit Ka 25. In crime no. 166 of 2010 pertaining to sections 25/27 of the Arms Act State vs. Sahid, he filed charge sheet no. 41/2010 which is paper no. 3 and is marked Exhibit Ka 26. Against those accused persons he proceeded, sanction was obtained from the District Magistrate on 18/03/2010 by him which is paper no. 6 and the same is marked Exhibit Ka 27. Against accused Sahid prosecution sanction was obtained on 18/03/2010, which is paper no. 6 on the file and the same is marked Exhibit Ka 20. One SCD Parcha was also prepared by him on 24/03/2010. 94. In cross-examination this witness has stated that in both the cases mentioned above charge sheet was submitted by him on 04/03/2010 and in both the cases prosecution sanction was received by him on 18/03/2010. The medical examination of accused Sarfaraz was got done at PHC Shahpur through police. One SCD Parcha was also prepared by him on 24/03/2010. 94. In cross-examination this witness has stated that in both the cases mentioned above charge sheet was submitted by him on 04/03/2010 and in both the cases prosecution sanction was received by him on 18/03/2010. The medical examination of accused Sarfaraz was got done at PHC Shahpur through police. The reference slip of the said injured accused Sarfaraz in original was available on file, which along with his medical report were obtained by him during investigation and were annexed in case diary. A carbon copy of the said medical report was provided by him in the murder case to the investigating officer by him and not the original. The entry of these papers was made in GD of the police station. He was Sub Inspector under the SHO. In this matter the arrest was made by the SHO, recovery was also made by SHO. For prosecution sanction he himself had taken the weapons to the District Magistrate which was opened by him and was shown to the District Magistrate after making fire and both the bundles were opened and thereafter resealed by him with the seal of the District Magistrate. He had collected the weapons from the Malkhana of the police station. He has denied that he did not make investigation in accordance with law and simply because he was subordinate to the SHO he had completed investigation sitting at the police station and submitted charge sheet. He has further stated that he does not recollect whether at the time of taking the weapons from the police station, entry was made in the Malkhana register or not. He clarified that at the police station there is a Malkhana register but it does not bear number of the article deposited and the identification of the case property is made by crime number. 95. This witness is a formal witness of the cases against two accused named above, namely, Sarfaraz and Sahid from whom firearm weapons where recovered and this witness had made investigation in the cases against them under sections 25/27 of Arms Act and submitted charge- sheet after taking proper sanction from the District Magistrate. 96. From the side of defence doctor Radheshyam Verma has been examined as DW 1 who was posted at T B hospital, Muzaffarnagar. He has stated that on 26/02/2010 he was deployed on emergency duty. 96. From the side of defence doctor Radheshyam Verma has been examined as DW 1 who was posted at T B hospital, Muzaffarnagar. He has stated that on 26/02/2010 he was deployed on emergency duty. On the said date one patient by the name Sarfaraz Ali son of Shaukat Ali aged about 23 years resident of village Harsoli had come to him at about 9.25 AM and was medically examined in emergency and following injury was found on his person: (i) Pellet induced injuries over right side chest and trauma over posterior chest wall. 97. Further this witness has stated that he had referred the patient to be admitted in Medical College, Meerut and for conducting medico-legal examination of the injuries. The original reference slip is in the file of ST No. 724/2011 State vs. Khalil and others under sections 307/504/506 IPC PS Shahpur, photo copy of which is filed which is marked Exhibit Kha - 2. 98. This witness has been cross-examined and has stated that he did not conduct any medical examination of the said patient nor did he conduct an x-ray nor any x-ray was shown to him during his examination. He had simply referred the patient to medical college Meerut, although he denied that he had mentioned 'bullet induced injuries' at the instance of the accused. By whom the same has been written, he does not know. He cannot tell as to whether in the clothes which the said patient was wearing there was any whole. In the reference slip he has not disclosed that any treatment was given to him. In the said reference slip the only reference of the name of Sarfaraz is made and not of any of his relatives. He denied that because of pressure upon him he had mentioned in the slip bullet induced injuries and also stated it to be wrong that Sarfaraz did not have any injury on head. He stated it to be right that he had not seen any other injury nor does he remember as to whether the patient had come himself for being referred or was brought by someone. 99. Hakikat has been examined as DW 2, who has stated in examination- in-chief that he knows Sarfaraz of his village who is son of Shaukat and he also knows Khalil, Nadeem, Raiyyan son of Shamshuddin and Shakir son of Raiyyan and Naseem who has died. 99. Hakikat has been examined as DW 2, who has stated in examination- in-chief that he knows Sarfaraz of his village who is son of Shaukat and he also knows Khalil, Nadeem, Raiyyan son of Shamshuddin and Shakir son of Raiyyan and Naseem who has died. The occurrence took place about 7 1/4 years ago on 25/02/2010 at about 2:30 PM. His house was in front of the medical store of Farukh which was located in the house of Mahadev. On the said day at about 2:30 PM Sarfaraz had come to take medicines, right then Naseem, Khalil, Raiyyan and Shakir came there with Lathis, country made pistol and gun at the said medical store and tried to drag Sarfaraz inside their house. He had seen that there was a lane by the side of the house of Naseem and others, where Sarfaraz was caused injuries by lathis by Khalil and Raiyyan. Khalil, Raiyyan and Naseem had caught hold of Sarfaraz, Naseem was armed at that time by a gun. All of them told Shakir "Mar sale ko goli" and at this instigation Shakir made fire upon Sarfaraz with an intention to kill and as soon as Naseem was disposed to make fire upon Sarfaraz, looking his life in danger, he snatched the said gun from the hand of Naseem somehow and started fleeing. Behind him these people also chased him with an intention to kill, then Sarfaraz in order to save his own life made fire from the said snatched gun and fled in injured condition from there. Subsequently he came to know that Naseem had died. This occurrence was seen by him and apart from him by Gaiyur, Musharraf, Ifroz and other Mohalla persons. 100. In cross-examination this witness has stated that he had not given the statement he made today in writing to any higher police officer and it was also stated by him to his counsel and to none else. He came to know yesterday only when police had lifted him. He could not tell as to in which direction is the opening of the house of accused as he does not know the directions. The distance of the house of accused from his own house would be about half km. but in which direction he could not tell. He came to know yesterday only when police had lifted him. He could not tell as to in which direction is the opening of the house of accused as he does not know the directions. The distance of the house of accused from his own house would be about half km. but in which direction he could not tell. His house is situated in different Mohalla than the houses in which accused are located and in between, there are about 50 houses. Between his house and the house of Farukh there is one road. The store of the Farukh opens on the road, which restore was being run for about 5 to 6 years. It was told by the villagers that after the occurrence Sarfaraz had been referred to Meerut. After getting injured, where Sarfaraz had gone, he did not know. After getting injuries in head Sarfaraz had fallen in the lane outside. He kept lying there for about half second and thereafter got up and fled and thereafter stated that when he got up, then the fire was made at him, which hit his chest from a distance of about half feet, by which he fell down and none lifted him. After half second of getting hit he again got up and snatched the gun of Naseem but he cannot tell whether it (gun) had single barrel or double barrel. By the said gun no fire was made upon Sarfaraz. After snatching the said gun, Sarfaraz fled towards his house. He did not run after him, rather kept standing there only. After having run 15 - 16 paces Sarfaraz made fire upon accused to save his life, he made just one fire. He was looking all this from the place of occurrence. He does not know whether the fire made by Sarfaraz hit anyone or not. After making fire Sarfaraz ran towards his house along with the gun but he does not know what he did with the said gun. He does not know whether Sarfaraz had gone to his home or not. He had seen him only up to the medical store and thereafter he had gone home. What happened thereafter of Sarfaraz he cannot tell as to where he had gone? He had not gone to his house next day or even thereafter because he did not know as to where he was. He had seen him only up to the medical store and thereafter he had gone home. What happened thereafter of Sarfaraz he cannot tell as to where he had gone? He had not gone to his house next day or even thereafter because he did not know as to where he was. Sarfaraz was of his clan but he cannot tell as to what was his relation with him. Sarfaraz used to do farming. When the occurrence happened Farukh was not at the medical store. He had not seen him prior to or even after the occurrence but he further stated that it was not so that there was no medical store of Farukh. The name of father of Farukh was Islamu.. Farukh has medical store even today which is being run by Kala son of Shaukat. The said Kala is not related to Farukh. It is wrong to say that there was no medical store of Kala. Farukh had gone to jail after the occurrence but how many days after the occurrence, he does not know. Farukh was son of the brother of Sarfaraz. Naseem son of Shamshuddin was murdered on the same day, of which he was narrating the occurrence. The brother of Naseem namely Khalil had also received firearm injury or not, he cannot tell. He also could not tell whether Raiyyan and Shakeb had received fire arm injuries. It was right to say that Sadik, Sajid, Arshad, Rashid, Sarfaraz, Farukh and Mumtaj were in jail but why, he could not tell. About one hour after the occurrence police had arrived. He had not met them. After having seen the police he had closed himself in his house. About the occurrence he had told the villagers only. Prior to narrating it in the court he did not tell about it to the police. He does not know as to for how long police stayed there. He was at his home and thereafter did not see police personnel. He denied that he had not seen any such occurrence and the house which he was stating to be his, was not his house and that he was making false statement only because of being of the family of Sarfaraz. 101. He was at his home and thereafter did not see police personnel. He denied that he had not seen any such occurrence and the house which he was stating to be his, was not his house and that he was making false statement only because of being of the family of Sarfaraz. 101. The statement of this witness does not appear to be trustworthy and confidence inspiring because he has stated himself to be present on the place of incident when firing was being made from the side of the complainant upon Sarfaraz and the description that he has given that Sarfaraz had fallen after getting hit and thereafter again got up, and ran for certain distance and again he was shot at and thereafter fell down but again got up and this time he snatched the gun from the hands of Naseem when he was about to make fire upon him and thereafter he fled towards his house in injured condition and while he was being chased by the accused with an intention to kill him, Sarfaraz made fire upon the complainant side but he cannot tell as to who got hurt by that. Had he been there certainly he would have seen as to who had got the injury by the fire made by Sarfaraz. He appears to have made the said statement only with a view to defending the accused Sarfaraz by cooking up a story so as to enable him have right of private defence and in excise of the same to prove that he had made fire upon the complainant side which might have hit the deceased Naseem although he did not specifically said so. 102. S.I. Bagesh Kumar Sharma has been examined as D.W. 3 who has stated that on 10/03/2010 he was posted on the post of S I at P.S. Shahpur and on that day after registration of the case crime no. 163 of 2010 under sections 307, 504, 506 IPC against accused Naseem, Khalil, Raiyyan son of Shamshuddin and Shakir son of Raiyyan, residents of Harsoli, the investigation was assigned to him. On the said day he copied the chick F.I.R., GD and took statement of the F.I.R. writer and thereafter on 11/03/2010 he took the statement of the informant in Parcha no. On the said day he copied the chick F.I.R., GD and took statement of the F.I.R. writer and thereafter on 11/03/2010 he took the statement of the informant in Parcha no. 2 and also of witness Afroz son of Jabbar, resident of Harsoli, Musharraf son of farzullah and Gafoor son of his Ismail, residents of Harsoli and also received injury memos of injured Sarfaraz and inspected the place of occurrence and prepared the site plan which is paper no. 9 and is marked as Exhibit Kha - 3. On 15/03/2010 in Parcha no. 3 effort was made to arrest the accused who could not be found. In Parcha no. 6 dated 23/03/2010, the statement of Sarfaraz was recorded after permission from court as he was detained in prison. In CD 7 dated 04/04/2010 raid was made to arrest the accused but could not be found. In CD 8 dated 14/4/2010 again raid was made but accused could not be found hence report was submitted for obtaining NBW. In CD 9 dated 15/04/2010 the effort was made to arrest the accused persons by obtaining NBW but they could not be found. In CD 10 dated 21/04/2010 and CD 11 dated 11/05/2010 raid was conducted but accused could not be found. In CD 12 dated 23/05/2010 a report was submitted for issuing warrant under sections 82 and 83 of the Criminal Procedure Code. In CD 13 dated 26/05/2010, NBW was issued against the accused. In CD 14 dated 27/05/2014 raid was made for executing NBW but could not be executed. In CD 15 dated 28/05/2010, warrant under sections 82 Cr.P.C. were obtained for service but accused could not be found. In CD 16 dated 13/06/2010 raid was conducted but accused could not be found. In CD 18 dated 29/06/2010 a report was submitted for obtaining warrant under sections 83 Cr. P.C. In CD 19 dated 02/07/2010 warrant were obtained against accused under sections 83 Cr. P.C.. In CD 20 dated 18/07/2010, medical report of injured Sarfaraz were received. The accused were released on interim bail from High Court. Charge- sheet no. 118/2010 was submitted after having found sufficient evidence against accused Khalil, Raiyyan and Shakir, which is paper number 3 and is marked as Exhibit Kha - 4. The summoned file of ST no. P.C.. In CD 20 dated 18/07/2010, medical report of injured Sarfaraz were received. The accused were released on interim bail from High Court. Charge- sheet no. 118/2010 was submitted after having found sufficient evidence against accused Khalil, Raiyyan and Shakir, which is paper number 3 and is marked as Exhibit Kha - 4. The summoned file of ST no. 724 of 2011 State vs. Khalil and Sarfaraz was in front of him, in which site plan and the said charge sheet were placed and these two documents were marked as Exhibit Kha - 3 and Kha - 4. 103. This witness in cross-examination has stated that he has not shown the medical store of Farukh in the site plan. He cannot tell the distance and the direction of medical store of Farukh from the place of incident. He does not know whether Farukh was an accused in cross case. He did not find out as to where Farukh was. He had inspected the place of incident at the instance of the informant. Informant is not an eye-witness of this case. He had not gone to the place of incident taking along any eye-witness. Sarfaraz is an accused in cross case, who had stated that he had snatched the gun and thereafter had made fire in defence. He did not enquire from Sarfaraz as to where the said gun was nor did he ask about it from any other witness. He did not enquire about it even from Farukh. He did not find out anything about the deceased and injured of the cross case. He cannot tell the distance of lane from the place of occurrence shown by 'X' nor could he tell the width of the said lane. He did not find any such evidence on the place of incident which would reflect that the occurrence happened because he had gone to the place of incident many days after the occurrence. He had not gone to the house of Naseem on the date of incident.. He had not taken his statement or of any person of kolhu in respect the occurrence. He had not recorded statement of any eye-witness whose houses were near the place of incident. He had not gone to the hospital to record the statement of any employee in respect of the injuries caused. He had not taken his statement or of any person of kolhu in respect the occurrence. He had not recorded statement of any eye-witness whose houses were near the place of incident. He had not gone to the hospital to record the statement of any employee in respect of the injuries caused. The clothes of Sarfaraz were not taken into possession nor did he make any queries about the same from him. He had gone to the house of the informant but did not make any endorsement regarding it. No damage was noticed in the house of informant. Sarfaraz had not stated to him that when he had gone to the store of Farukh he was present there. Rather he had given statement that Raiyyan, Khalil and Naseem had caught hold of him and Shakeel had made fire from the country made pistol which he was carrying in his hand. Shaukat had stated to him that he had gone to lodge report at PS Shahpur but the same was not lodged. He had also stated that Naseem told Shakir 'mar sale ko goli'. This witness had not told that all the four accused had made fire upon his son Sarfaraz rather had told that Sarfaraz had made fire. He has denied to have submitted charge- sheet on the basis of false investigation. 104. From the statement of this witness it is apparent that he was very lax in conducting the investigation in respect of vital aspects of the matter. He has admitted not to have recorded the statements of independent witness who were living in the vicinity nor did he record any statement of any employee of the hospital with respect to the injuries having been caused to Sarfaraz. Shaukat, he stated, had not told him that all the four accused had made fire upon Sarfaraz rather had stated that it was Sarfaraz who made fire upon them. He also did not find out anything about the injuries caused to the deceased and the injured of the cross cases, which ought to have been done by him for fair investigation. 105. Dr. Mukund Pal Singh has been examined as DW 4, who has stated to have medically examined Sarfaraz on 26/02/2010 at 12.50 p.m., who was brought by Md. 105. Dr. Mukund Pal Singh has been examined as DW 4, who has stated to have medically examined Sarfaraz on 26/02/2010 at 12.50 p.m., who was brought by Md. Hashim son of Suleman, resident of Sher Nagar, Nai Mandi District Muzaffarnagar, who was referred from Muzaffarnagar hospital to Meerut and found following injuries on his person: 1 - Lacerated wound 3 cm 0.5 cm, the scalp deep on left side of skull 10 cm above left ear, blood clot present, kept under observation and x-ray advised. 2 - Pellet induced lacerated wound on his right side of front of chest 10 cm 8 cm, area above left nipple, lacerated wound about 8 in number, average size 0.2 cm into 0.2 cm hole in shape, blackening present, around the wound, bleeding on touch, kept under observation and advised x-ray. 3 - Contusion 10 cm 2 cm on the right side of front of abdomen below right subcostral, red in colour. 4 - Contusion multiple in number on lower part of abdomen in an area of 8 cm 6 cm, average size 3 cm into 2 cm, 5 cm below umblicus. 106. He has opined that injury no. 1, 3 and 4 could have been caused by blunt object while injury number 2 could have been caused by a firearm. X-ray was advised keeping the injury no. 1 and 2 under observation. The nature of the injury no. 3 and 4 were found to be simple and were received within one day. The patient was referred from District hospital Muzaffarnagar, regarding which police was informed. According to him, injury no. 2 was possible to have been caused on 25/02/2010 at 2.30 p.m. by fire arm and all these injuries were received within 24 hours of the medical examination. He has proved the said medical report which is marked as Exhibit Kha - 5. He had conducted medical examination at the reference slip of District hospital Muzaffarnagar. 107. In cross examination this witness has stated that the injured Sarfaraz was not admitted although he had come there at about 12.50 p.m.. He could not tell as to for how long they stayed in the hospital. He was brought in fully conscious condition. He did not find any abnormality in his general condition nor did he enquire from him as to where did he get those injuries. He could not tell as to for how long they stayed in the hospital. He was brought in fully conscious condition. He did not find any abnormality in his general condition nor did he enquire from him as to where did he get those injuries. He also did not enquire anything about FIR being lodged in respect of the said occurrence in which he received these injuries however he had informed about it to the Medical College police on phone but he does not know whether police had arrived or not. He also does not recollect whether x-ray was conducted of the injured and whether the same was placed before him for preparing supplementary report or not. He does not recollect whether the injured had undergone any operation or not. The injury no. 2 was lacerated wound, but he could not tell as to from how much distance a fire would be required to be made for causing such kind of wound. He could not tell whether any pellet was taken out of injury no. 2 after operation. He further stated that when contusion is caused, its colour would be red and would remain so between 12 to 24 hours. Injury number 3 and 4 could have been received by him 5 to 10 minutes prior to conducting of the medical examination. Injury no. 1 was a lacerated wound and the blood clots within 6 hours. He could not tell the duration of injury no. 2. Injury no. 3 and 4 could have been manufactured. He has denied to have prepared the false medical exemption report in collusion with the accused. He could not tell about the nature of the injury no. 2. He could not tell whether the injury was dangerous to life or not. He could not tell the depth of the pellets. The pellets were not in front of him today. He had not stitched any injury of the injured. 108. This witness is a formal witness, who has stated to have medically examined the injured Sarfaraz upon being referred from District hospital Muzaffarnagar on a reference slip. He could not tell the depth of the pellets. The pellets were not in front of him today. He had not stitched any injury of the injured. 108. This witness is a formal witness, who has stated to have medically examined the injured Sarfaraz upon being referred from District hospital Muzaffarnagar on a reference slip. He has clearly admitted that the said patient was not admitted and that he was not in a position to disclose the nature of the injuries as to whether they were dangerous to life or not because no x-ray report was presented before him for supplementary report to be prepared. He has gone to the extent of saying that injury no. 3 and 4 could have been manufactured. He has also noticed that the injured was not in a critical condition, rather was fully conscious. Therefore from his statement the said injured does not appear to have suffered any serious kind of injuries. 109. From the side of the learned counsel for the appellants it has been argued that in the present case one died while three are stated to have become injured on the side of prosecution in this occurrence and elaborated that the deceased was Naseem while the injured were Khalil (PW 3), Raiyyan and Shakir. While on the side of defence, accused Sarfaraz had received injuries caused from the side of prosecution, but no explanation was given thereof. The place of occurrence has also been changed. In fact the occurrence had started at the medicine store which was about 600 - 700 metres away from the house of the informant and the prosecution has shifted place of occurrence by showing it that accused side had assaulted the complainant side by fire arms inside the gher of the complainant side and further shifted the place of occurrence by stating that the accused had made fire upon the deceased Naseem from the staircase. There was no motive for giving effect to this occurrence, however attention was drawn to the last Para of page 48 of the paper book in which it was mentioned that the effort was made by the prosecution to create motive that few days prior to this occurrence a quarrel had taken place between brothers of PW 1 Irfan namely, Naseem and Khalil with the accused side, was not any serious kind of quarrel which would create motive to commit the present occurrence and that is why PW 1 failed to disclose the names even of those persons who were playing the volleyball on the said date. Much emphasis was laid on the right of self-defence because it was argued that accused Sarfaraz opened fire upon deceased Naseem as Naseem along with the other three namely, Khalil, Raiyyan and Shakir had assaulted Sarfaraz with Lathi Danda, country made pistol and gun at the medicine shop and when Naseem was about to make fire on Sarfaraz, he (Sarfaraz) had snatched gun from the hand of the Naseem and ran towards his house to save his life and had made fire upon the complainant side in defence. It was also emphasized that the injuries caused to the accused Sarfaraz were not explained by the prosecution side which clearly indicates concealment of origin of the occurrence. Attention has also been drawn to the fact that Majrubi Chitthi were given to the injured prior to lodging of the F.I.R. which shows that the F.I.R. was anti-timed. No x-ray was conducted of the injured although PW 6 had examined all the three injured. Hence it was evident that the injuries sustained by them could not be serious. Attention was drawn to the statement of PW 6, Dr. Pradeep Mittal who had stated that for knowing the nature of injuries he had referred the injured persons to the surgeon and attention was also drawn to page 139 and 140 of the paper book in which this witness has admitted that there was no reference of crime no. on the three injury reports. The medical examination of all the three injured was conducted between 3:15 PM to 3:35 PM while the F.I.R. was lodged at 4:30 PM. on the three injury reports. The medical examination of all the three injured was conducted between 3:15 PM to 3:35 PM while the F.I.R. was lodged at 4:30 PM. Attention was also drawn to the statement of PW 1 at page 43 and 44, wherein this witness has admitted that cross case of the present case under sections 307, 504, 506 IPC was going on in the court, complainant of which was Shaukat, father of the injured Sarfaraz, in which charge sheet was submitted against real brothers of PW 1 namely, Naseem (deceased) , Khalil, Raiyyan and Shakir. Attention was also drawn to the statement of PW 1 at page 67 in which he has stated that Sarfaraz had received the injury, was apprised to him by SO after he (PW 1) lodged report. This witness also had admitted that in the said case his brothers named above had got themselves bailed out. The attention was also drawn to page 72 of the paper book in which PW 1 has denied the suggestion that on 25/02/2010 at 2:30 PM Sarfaraz had gone to take medicine from the medical store of Farukh and at that time Naseem, Khalil, Raiyyan and Shakir having Lathi, country made pistol and gun, tried to drag Sarfaraz into their house and that in the lane by the side of the house of the complainant, Sarfaraz was caused injuries by Lathi by Khalil and Raiyyan and both the them along with Naseem, who was armed with gun, had caught hold of Sarfaraz and then Shakir had exhorted 'mar sale ko goli' and at this Shakir made fire on Sarfaraz with an intention to kill him by country made pistol and when Naseem was about to make fire on him by the gun in his hand Sarfaraz snatched the same from his hand and thereafter all the four above named complainant side chased him, then Sarfaraz opened fire upon them in order to defend himself and somehow returned home to save his life. The attention was also drawn to the statement of PW 2 Raiyyan at page 75 of the paper book in which he admitted that the case under sections 307, 504 and 506 IPC was got registered by father of Sarfaraz against the complainant side. The attention was also drawn to the statement of PW 2 Raiyyan at page 75 of the paper book in which he admitted that the case under sections 307, 504 and 506 IPC was got registered by father of Sarfaraz against the complainant side. The attention was also drawn to the statement of PW 3 Khalil at page 99 of the paper book in which this witness has also admitted the case having been registered against the complainant side by Shaukat. It was argued that the place and time of incident of both the occurrences are one and the same. On behalf of the accused Arshad it was also argued that improvement has been made in respect of place of occurrence by the prosecution side, which shows that the occurrence happened in some other manner than in the manner as has been stated in the F.I.R. No role was assigned to him hence he cannot be treated to be a member of unlawful assembly. He had no motive of committing offence, hence his conviction with the aid of sections 149 IPC was bad in law. Nothing was recovered from his possession. It was also argued on behalf of the appellants that no blood was found on the staircase nor any pellets were found there , which would indicate that the occurrence did not take place there. The incident took place at the medicine shop of Farukh where Sarfaraz had already received firearm injury and then he had snatched the gun and when he fled to save his life, the complainant side had chased him. On 27 /02/2010 recovery of paunia , a small gun has been shown from him . In order to conceal the genesis of the incident, the injuries caused to the accused Sarfaraz have been concealed. No blood was found on the third floor/storey of the house which also shows that no incident took place there. In fact the occurrence took place in the manner as was mentioned in Exhibit Kha - 1 and not as mentioned in Exhibit Ka - 1. 110. From the side of prosecution it was vehemently argued that the cross case has been concocted by the father of the accused i.e. Shaukat . In fact the occurrence took place in the manner as was mentioned in Exhibit Kha - 1 and not as mentioned in Exhibit Ka - 1. 110. From the side of prosecution it was vehemently argued that the cross case has been concocted by the father of the accused i.e. Shaukat . It is very unnatural that the injured Sarfaraz was taken to Sasural of Shaukat in Sher Nagar and thereafter he was shown in District hospital Muzaffarnagar , from where he was referred to Meerut for medical examination. No defence was taken in the statement under sections 313 Cr. P.C. that the accused Sarfaraz had made fire in defence. It clearly proved beyond reasonable doubt by the prosecution side that it were the accused who had come prepared with common object of the unlawful assembly formed by them to make assault upon the deceased and the other injured persons in order to kill them and with that object in mind they had opened fire upon them by which deceased had died and three other injured had received injuries. The appeal therefore deserves to be dismissed. 111. After having heard the arguments of both the sides and having perused the entire evidence on record we find that according to prosecution version, about 7-8 days prior to the present occurrence, a dispute had occurred between informant's brothers i.e. Naseem (deceased) and Khalil (PW-3) on the one hand and accused Sadiq on the other, while they were playing volleyball, which was settled between them by intervention of some villagers but accused Sadiq had given a threat to them to see. In pursuance of the said threat on 25.2.2010 at about 2:00 pm, accused Sadiq, his brother Sahid and other family members namely Arshad, Rashid, Sarfaraz, Farukh and Mumtaj came at the house of informant armed with country made pistols and guns and Sadiq abused Naseem "Sale Naseem Tujhe Dekhna hai" and then all of them entered the house of informant and started making fire with an intention to kill, in which PW-1's brother Naseem, Khalil, Raiyyan and his nephew Shakir received fire arm injuries. The informant fled from there in order to save his life, while the accused taking the brothers of the deceased and his nephew dead, had also fled from there. The informant fled from there in order to save his life, while the accused taking the brothers of the deceased and his nephew dead, had also fled from there. The informant had taken the injured persons to the Muzaffar Nagar District Hospital, where his brother Naseem was declared dead, while Khalil was fighting for his life. 112. On the other hand, the version of the defence is that ten days ago prior to the present occurrence, the son of Shaukat namely, accused Sarfaraz had a quarrel with Naseem (deceased) S/o Shamshuddin in respect of weighing of buggi of sugarcane at Kolhu and the same was got settled by few persons present there. At that time Naseem had given threat to Sarfaraz that he would see him but ignoring that threat, his son Sarfaraz had gone on 25.2.2010, at about 2:30 pm, at the medical store of Farukh to bring medicine for his father Shaukat, right then, Naseem (deceased), Khalil (injured), Raiyyan (injured) S/o Shamshuddin and Shakir (injured) S/o Raiyyan, came there at the said medical store armed with Lathi, country made pistols and guns in their hands and forcibly tried to drag Sarfaraz to their house and Sarfaraz was assaulted by Khalil and Raiyyan by Lathi in the lane adjacent to their house and Raiyyan, Khalil and Naseem, who were having guns, had caught hold of Sarfaraz and then Shakir had told "Mar Sale Ko Goli", at this exhortation, Shakir made fire upon Sarfaraz by country made pistol in his hand with an intention to kill and as soon as Naseem was about to make fire upon Sarfaraz, Sarfaraz sensing that he might be killed, snatched gun from the hand of the Naseem and thereafter all the four above persons had chased Sarfaraz, who in order to save his life, made fire and somehow saved his life and came home. It is further the case of the defence that the family of complainant side was big and they all reached the house of accused due to which the accused had closed his door and windows and in the night after concealing themselves, had gone to Shernagar (Sasural of Shaukat) and from there accused- Sarfaraz was taken to Muzaffarnagar District hospital but from there he was referred to Meerut for medical examination because of serious injuries. Shaukat had given an application dated 2.3.2010 addressing to D.I.G., Saharanpur, whereon after the order having been passed, a cross-case was registered as Crime No. 163A of 2010, under Sections 307, 504 and 506 IPC against complainant side, which included Naseem (deceased), Khalil, Raiyyan and Shakir on 10.3.2010 at 18:30 pm. 113. It could be most pertinent to mention here that from the side of accused, F.I.R. has been lodged against the complainant side showing the occurrence to have taken place on 25.2.2010 at 2:30 pm in which deceased Naseem along with other injured namely Khalil, Raiyyan and Shakir have been made accused, while from the side of prosecution, the occurrence is shown to have taken place on 25.2.2010 at 2:00 pm, which raises a question as to how incident could have been done by Naseem (deceased) at 2:30 pm when he is stated to have died, by prosecution side, in occurrence, which took place at 2:00 pm, this question does not appear to have been dealt with by the trial court on the basis of evidence adduced from both the sides. It is also apparent from the judgment of the trial court that it has taken the occurrence of Crime No. 163A of 2010 to be not a cross case of the occurrence of Crime No. 163 of 2010 and has treated them to be two separate incidents having been committed at two different point of time and has awarded punishment to both the sides. 114. In order to prove the prosecution case, which has been mentioned above, the informant Irfan (PW-1) has supported the said version in examination-in-chief by saying that on the date of occurrence i.e. 2.5.2010, he along with his brother was taking off fodder from the buggi after having returned from the field to be placed on the fodder machine to be cut, right then at about 2:00 pm, all of a sudden accused Sadiq armed with country made pistol and accused Sahid, Arshad, Rashid, Sarfaraz, Mumtaj and Farooq armed with country made pistols entered his house saying "Maro salon ko" and at this, they all opened fire from the respective weapons in their hands, in which his brother Naseem, he himself, Khalil, Raiyyan and his nephew Shakir had received fire arm injuries. He saved his life by concealing himself. He saved his life by concealing himself. The women of the house had raised alarm and also after hearing the sounds of fires, people had assembled there but the accused fled from there, giving him threats and, thereafter, he with the help of other family members had taken his injured brother to hospital taking along with him a constable from the police Chauki of the village but doctor pronounced Naseem dead, while other injured brothers were got admitted for treatment. The F.I.R. has been promptly lodged because occurrence took place at 2:00 pm while on the same day the F.I.R. has been lodged at 2:30 pm, though the distance of the village Harsauli, where the occurrence took place from the P.S. was 7 kms. This witness has been cross-examined at length. He has stated in cross-examination that by 3:15 pm, he had reached Government Hospital Muzaffar Nagar and soon, thereafter, the doctor declared Naseem dead. The accused had started the occurrence soon after coming there. One accused, started abusing seeing him Naseem ran towards the staircase. All were armed with country made pistols except Sadiq, who was armed with gun. Soon after coming there, accused started firing upon them, about 14-15 fires were made. As soon as fire started, the complainant side fled from there. The place where fodder was being cut, Naseem, Khalil, Raiyyan and Shakir had received injuries and they, thereafter, fled from there. Raiyyan, Khalil and Shakir had jumped towards the northern wall to save their life, while Naseem fled towards the third floor of his house, who was chased by the accused. He had received fire arm injury when he had turned around to see the accused. The I.O. has shown the place where Naseem was lying in injured condition by 'X' on the third floor of the complainant's house in site plan, which is Ext. Ka.-19. 115. He had received fire arm injury when he had turned around to see the accused. The I.O. has shown the place where Naseem was lying in injured condition by 'X' on the third floor of the complainant's house in site plan, which is Ext. Ka.-19. 115. It is apparent from the statement of this witness that initially the firing took place near the fodder machine, where deceased Naseem along with his other brothers was busy in cutting the fodder and when the assault was made by the accused side, three of injured, who are named above, crossed over the northern boundary to save their life, while the deceased Naseem ascended the third floor of the house but he was pursued by the accused and fire was made upon him even from the staircase and ultimately he lay in deeply injured condition at place 'X' from where he was taken down after the accused had fled from there. Similarly PW-2, Raiyyan, who is also an injured witness, has supported the version of prosecution stated above, whose statement has been mentioned above in detail. The third injured namely, Khalil, has also supported the prosecution version as narrated above. 116. All these three injured witnesses have been cross-examined at length except Irfan but nothing such has been elicited in cross-examination, which would make their presence doubtful on the place of occurrence particularly because of them being injured witnesses. The injuries received by them have been proved by PW-6, Dr. Pradeep Mittal, who found injured Khalil to have suffered five injuries, all were lacerated wounds, although he has stated that to know the nature of said injuries, he had referred the patient to surgeon. The injuries caused to Khalil were suffered on face, left shoulder, left hand, left chest and right thigh. Similarly, the other injured Shakir had received one lacerated wound on his head. The third injured Raiyyan had received two lacerated wounds, one on little finger and the other on left hand. These injured were also referred to surgeon for knowing the nature of injuries. It is true that these three injured were examined by Dr. between 3:15 pm to 3:35 pm, although F.I.R. was lodged at 4:30 pm, which establishes that injuries were examined by the Dr. These injured were also referred to surgeon for knowing the nature of injuries. It is true that these three injured were examined by Dr. between 3:15 pm to 3:35 pm, although F.I.R. was lodged at 4:30 pm, which establishes that injuries were examined by the Dr. before lodging the F.I.R. It can be well understood that if somebody has assaulted by fire arm weapons, the primary aim of all the injured and his family members would be to get themselves medically examined first rather than rush to the police station to lodge F.I.R., therefore, we find that nothing adverse should be inferred in the present case merely because the injuries were got examined by Doctor prior to lodging the F.I.R. simply on that count it cannot be said that the F.I.R. was ante-timed and no benefit should be allowed to go to the accused because of this reason. 117. As regards, the deceased Naseem, his post mortem was conducted by R.S. Verma (PW-7) on 26.2.2010 at 11:00 am and had found six ante mortem wounds on his person. Injury no. 1 was on his forehead, injury no. 2 was on his face, injury no. 3 was on his neck, injury no. 4 was on his clavicle and injury no. 5 was on his chest, while injury no. 6 was also on chest. All these injuries were fire arm injuries, which according to the doctor were possible to have been caused on 25.2.2010 at 2:00 pm by which the deceased would have died. Therefore, it is well established by the testimonies of PW-6 and PW-7 that all the injuries sustained by the three injured named above as well as one deceased were fire arm injuries and the assailants/accused were also established by the prosecution side to have been armed with country made pistol and gun by which they are stated to have fired upon them, therefore, the ocular testimony is corroborated by the medical examination reports in the present case. 118. 118. As regards the motive of giving effect to this occurrence, it is mentioned by all the three witnesses of fact i.e. PW-1, PW-2 and PW-3 that about 7-8 days prior to this occurrence, a dispute had arisen between the deceased Naseem and Khalil on the one hand and accused Sadiq on the other while playing volleyball, which was resolved by the villagers at that time but the accused Sadiq had given threat to the deceased that he would see him and it was in pursuance to this threat that the present occurrence was given effect to. The said animosity which has been proved by all the three witnesses is found to be sufficient by us for giving effect to the present occurrence by the accused. 119. As regards the place of occurrence, regarding which it was argued by the learned counsel for the appellants that it has been shifted because according to the defence, the occurrence had started at the shop of medicine belonging to Farukh, which was adjacent to the lane, where accused Sarfaraz had gone to purchase medicine for his father and it was there that the three injured mentioned above as well as deceased had gone there, who all had tried to drag the accused Sarfaraz towards their house and in the process one fire was also made by one of the injured witnesses, while two others including the said injured witness had caught hold of Sarfaraz and Shakir had made fire upon Sarfaraz with an intention to kill him and, thereafter, when Naseem (deceased) tried to also make fire upon him, his gun was snatched by Sarfaraz in order to save himself and fled towards his house and while he was being chased, he made fire upon the complainant side. It is further argued by the learned counsel for the appellants that the accused are stated to have entered the 'Gher' of the complainant side where they are stated to have made fire upon the deceased and the injured persons indiscriminately but neither any marks of bullets were found on the walls of the 'Gher' nor any cattle, which are stated to be tied there, received any injuries, which shows that the said occurrence did not happen, rather the occurrence happened in some other manner. It was also argued that place of occurrence is shifted by showing the incident to have happened inside the 'Gher' near the fodder cutting machine and, thereafter, when the injured fled from there in order to save their life crossing the wall, the accused chased the deceased Naseem, who headed towards the third floor of his house and he was stated to have been fired upon from the staircase. In this regard there were inconsistent statements of PW-1 to PW-3 as some of them have stated that the accused had followed the deceased right up to third floor and shot him there, while others have stated that the fire was made upon the deceased only from the staircase, such kind of discrepancies would make case of prosecution doubtful. We are not inclined to accept this argument of learned counsel for the appellants because in a situation like the one in the present case in which as many as seven accused are stated to have made indiscriminate firing in prosecution of common object of the unlawful assembly formed by them in order to eliminate the deceased and kill other injured persons, it would be difficult for the witnesses, even if they are injured witnesses, who have seen the occurrence, to divulge distinctly as to which of accused had made fire and from where. It has come in evidence beyond any doubt that all the seven accused, who have been named in the F.I.R., had entered in the 'Gher' of the complainant side in order to eliminate the deceased and caused injuries to the injured persons in prosecution of common object of unlawful assembly formed by them. 120. In this regard, it would be pertinent to mention here that the place of occurrence would extend from the place, where initially firing was made near the fodder cutting machine and, thereafter, right up to the place where deceased Naseem was found lying in injured condition at place shown by 'X' at the third floor, therefore, from the evidence on record, we do not find that there was such kind of shifting of place of incident, which would make the prosecution case to be doubtful. 121. Now we would dealt with aspect of the defence case which has been stated above. 122. From the side of defence, four witnesses have been examined to prove their defence. 121. Now we would dealt with aspect of the defence case which has been stated above. 122. From the side of defence, four witnesses have been examined to prove their defence. From among the eye-witnesses, Hakikat has been examined as DW-1, whose testimony has already been mentioned above by us and we find that he has tried to prove the defence version in examination-in-chief that he was witness of the occurrence of 25.2.2010 at 2:30 pm, which happened at the medical store of Farrukh, where he was present when accused Sarfaraz had come to take medicine for his father and it was then that Naseem (deceased) Khalil, Raiyyan and Shakir had come there armed with Lathi, country made pistol and gun and had tried to drag Sarfaraz into their house and Shakir was beaten by them in the lane adjacent to the house of the complainant, who was caught hold up by Khalil, Raiyyan and Naseem. Shakir had exhorted that 'Mar Sale Ko Goli', at which Shakir had fired upon Sarfaraz by his country made pistol and as soon as Naseem was about to make fire, Sarfaraz sensing threat to his life, had snatched the gun from his hand and fled towards house in order to save himself, they were pursued by the complainant side and in order to save his life, Sarfaraj made fire upon the complainant side by the said snatched gun. Later on he came to know that Naseem had died. The said occurrence was seen by Gayoor, Musarraf, Imroz and none of these witnesses have been examined in defence from the side of accused. In cross-examination, made by the complainant side, the testimony of this witness was found to be not confidence inspiring because he had admitted that he failed to know as to where Sarfaraz had gone after having got injured. The narration made by him of the said injured-accused because having fallen and again getting up and then again getting hit by bullet and then again getting up and finally making fire upon the complainant side in order to save himself, does not sound natural. He has further stated that he continued to stay there and witnessed this incident and could not tell as to whom shot hit, which was made by Sarfaraz. Had he been present on the spot. He has further stated that he continued to stay there and witnessed this incident and could not tell as to whom shot hit, which was made by Sarfaraz. Had he been present on the spot. He certainly would have seen the person, who was hit by the shot made by Sarfaraj, therefore the testimony of this witness is not trustworthy and it appears that because of being close to the accused side, he had made false statement. 123. As regards, DW-2, who is Dr. R.S. Verma, it may be mentioned that he had simply referred the accused Sarfaraz on 26.2.2010 at 9:25 pm, when he was brought in emergency in District Hospital, Muzaffarnagar to the medical college Meerut, and he failed to give explanation as to who had recorded the injury in respect of the said patient, which mentioned Pellet induced injuries over right side chest and trauma over posterior chest wall. He has simply proved Ext. Kha-2, which is reference slip. He has also admitted in cross-examination that no X-ray was shown to him at the time of medical inspection made of the said patient. From the statement of this witness, we do not find that he found the accused to be in serious condition. 124. Dw-3, S.I. Bagesh Kumar Sharma, he had conducted the investigation of the alleged cross-case, in which he submitted charge sheet. He in cross-examination, has stated that Shaukat had not told him that Naseem told Shakir 'Mar Sale Ko Goli'. This witness had also not stated to him that all the four accused (complainant side) made fire upon Sarfaraz, rather it was told by him that Sarfaraz had made fire. 125. This witness has stated that he did not record the statement of any persons/eye-witnesses living in vicinity in respect of correctness of the present occurrence, which happened with Sarfaraz. He has also stated that the informant of the cross-case was not eye-witness and he has not taken any eye-witness to the place of incident for making site plan. 125. This witness has stated that he did not record the statement of any persons/eye-witnesses living in vicinity in respect of correctness of the present occurrence, which happened with Sarfaraz. He has also stated that the informant of the cross-case was not eye-witness and he has not taken any eye-witness to the place of incident for making site plan. It appears from the statement of this witness that he did not make serious effort to come to the truth of the occurrence nor does it appear that he evaluated this fact as to how it was possible that according to prosecution side, the occurrence took place at 2:00 pm in which Naseem had died, while the same deceased had been made accused along with three other injured persons in a cross-case in respect of the occurrence, which is stated to have occurred at 2:30 pm on the same day as a dead person could not be believed to have participated in the said occurrence, which falsifies the whole defence version. 126. Dr. Mukund Pal Singh has been examined as DW-4, who has proved four injuries on the person of accused Sarfaraz. Injury no. 1 is incised lacerated wound on the left side of the head, injury no. 2 is incised lacerated wound on left side of chest and injury no. 3 is contusion on abdomen in right side and injury no. 4 is contusion on abdomen covering large area and has proved his injury memo, which is Ext. Kha-5. In cross-examination, this witness has clearly stated that the said injured-accused was not admitted in hospital. He was fully in conscious condition, no abnormality was found in his general condition. From his statement, it can fairly be gathered that the said injured was not having any serious kind of injuries and this witness has gone to the extent to state that injury no. 3 and injury no. 4 could have been manufactured. 127. He was fully in conscious condition, no abnormality was found in his general condition. From his statement, it can fairly be gathered that the said injured was not having any serious kind of injuries and this witness has gone to the extent to state that injury no. 3 and injury no. 4 could have been manufactured. 127. On the basis of defence witnesses, we are of the view that the defence version does not appear to be trustworthy and the same needs to be discarded, while the prosecution has been able to prove its case to the hilt on the basis of sound proof of evidence which has been discussed above and, therefore, these appeals deserve to be dismissed with respect to all the accused having been held guilty by the trial court in crime no. 163 of 2010, under Section 148, 307 read with 149, 302 read with 149, 452 IPC and 7 Criminal Law Amendment Act, and is accordingly, dismissed. 128. Since all the accused were armed with deadly weapons, the offence under Section 147 does not stand proved because none of the accused was armed with ordinary weapons. Therefore, the accused mentioned-above stand acquitted of offence under section 147 IPC. 129. We further are of the view that on the basis of evidence of PW-4, Constable Sahab Singh, and PW-5, S.I. Bogesh Kumar Sharma, PW-8 S.I. Pramod Kumar and P.W. 9, S.I. Balzor Singh, it is also evident that on 27.2.2010 at about 1:20 pm, from the possession of the accused Sarfaraz and Sahid one 12 bore gun and one cartridge of 12 bore and one country made pistol of 315 bore and one live cartridge of 315 bore were recovered for which they did not possess any valid license and, therefore, the trial court has also held them guilty under Section 25 of Arms Act rightly. Therefore, appeals of the accused persons for being held guilty under Section 25 of Arms Act also stand dismissed. 130. Now it would be pertinent for us to express our opinion as to whether the punishment awarded by the trial court is on the higher side as they have been awarded punishment under Section 302 read with 149 IPC for being hang till death. 131. 130. Now it would be pertinent for us to express our opinion as to whether the punishment awarded by the trial court is on the higher side as they have been awarded punishment under Section 302 read with 149 IPC for being hang till death. 131. As regards reduction of the sentence from death penalty to life imprisonment, we would like to rely upon the law laid-down by Supreme Court in Farooq @ Karattaa Farooq & Ors vs. State Of Kerala, 2002 (4) SCC 697 in which in paragraph no. 8 following is held: "Next question which is to be considered is as to whether the High Court was justified in upholding the death penalty imposed against appellant Farooq and appellant Sathar. Reference in this connection may be made to the Constitution Bench decision of this Court in the case of Bachan Singh v. State of Punjab, 1980 AIR(SC) 898, as well as, following the same, three Judge Bench decision of this Court in Machhi Singh & Ors. v. State of Punjab, 1983 (3) SCC 470 , wherein various circumstances have been enumerated and it was laid down that if the case squarely falls within its ambit, only in that eventuality, death penalty can be awarded. It was observed that in rarest of rare cases when collective conscience of the community is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise retaining death penalty, such a penalty can be inflicted. In the facts and circumstances of the present case, it is not possible to come to the conclusion that the present case would fall within the category of rarest of rare one. Therefore, we are clearly of the opinion that in the fitness of things, extreme penalty of death was not called for and the same is fit to be commuted to life imprisonment." 132. It is apparent from the above position of law that death penalty should be awarded only in circumstances as enumerated in the above-mentioned cases and only in that eventuality when collective conscience of the community is so shocked that it will expect the court to inflict death penalty irrespective of their personal opinion as desirability. It is apparent from the above position of law that death penalty should be awarded only in circumstances as enumerated in the above-mentioned cases and only in that eventuality when collective conscience of the community is so shocked that it will expect the court to inflict death penalty irrespective of their personal opinion as desirability. In the present case, we find that facts were not such as would shock our conscience to that extent that we would feel compelled to award death penalty because the murder in the present case is not committed in such gruesome manner that it will require imposition of death penalty. 133. In this regard, in our opinion, this is not one of such cases in which the offence of murder is committed in such gruesome manner that it would require imposition of death penalty. The accused are stated to have made fires upon the deceased and also on other three injured persons by which they have received injuries. Therefore, we find it adequate that ends of justice would be met if the punishment under Section 302/149 IPC is reduced to that of life imprisonment and a fine of Rs. 10,000/- and in default of payment of fine, two months simple imprisonment. Rest of the punishments which have been awarded under the above mentioned sections do not require any interference and they are upheld. 134. Accused are in jail. 135. The Criminal (Capital) Appeal No.205 of 2015 stands partly allowed and the reference for confirmation stands rejected. 136. The Criminal Appeal Nos. 206 of 2018 and Criminal Appeal No.207 of 2018 stand dismissed. 137. Let a copy of this judgment be transmitted to the court below along with original record of lower court for necessary information and compliance forthwith.