JUDGMENT : 1. Vide this order above mentioned five appeals would be disposed of. 2. In the incident which had occurred on 26.05.2012 Hansraj died on account of firearm injuries, whereas, Kamlesh, Dharmendra, Ramsingh and Rajpal suffered injuries. Report regarding incident was lodged by the complainant Rajpal on 26.05.2012, wherein, he alleged that at 4.30 p.m. on that day accused Omprakash, Dharamveer Singh, Anoop Singh, Krishan Kumar son of Omprakash Krishan son of Dalip Singh, Ransingh, Beersingh, Chandraprakash @ Lalaram and Suresh came to their house. Accused Krishan son of Omprakash and Dharamveer Singh were armed with firearm and the other appellants were armed with sticks and farsi. They were having a previous enmity. Appellants party had murdered his brother Abhey Singh and had been sentenced to undergo imprisonment for life. In appeal they were granted bail. Because of the previous enmity, appellants Dharam Singh and Krishan son of Omprakash had fired with an intention to kill Hansraj and as a result Hansraj suffered firearm injuries on his neck and arms. When he tried to rescue his brother, appellants inflicted injuries to him and also inflicted injuries to his wife Kamlesh, and sons of Dharmendra and Surendra. Appellants Omprakash, Ransingh, Krishan son of Dalip Singh, Beersingh, Chandraprakash @ Lalaram and Suresh gave injuries to them with sticks and farsi. On hearing alarm Lalram son of Budhram and others reached the spot. Injured were removed to the hospital. However, Hansraj succumbed to his injuries in the hospital. 3. On the basis of the report Exhibit P-1 formal FIR No. 319 dated 26.05.2012 was registered at Police Station Tijara, District Alwar under Section 143, 341, 323, 302 IPC (hereinafter referred to as 'IPC) and Section 3/25 of the Arms Act, 1959 (hereinafter referred to as the 'Act') 4. After completion of investigation and necessary formalities, challan was presented initially against appellants Dharamveer Singh, Omprakash, Anoop Singh and Chandraprakash. Thereafter, supplementary challan was presented against appellants Krishan son of Dalip Singh, Veersingh, Ransingh and Suresh. 5. So far as the appellant Krishan son of Omprakash is concerned, he was summoned to face the trial on an application moved by the prosecution under Section 319 Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.'). 6. Charges were framed against the appellants under Section 148, 341, 323, 324, 325, 302 read with Section 149, 120-B IPC. 5. So far as the appellant Krishan son of Omprakash is concerned, he was summoned to face the trial on an application moved by the prosecution under Section 319 Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.'). 6. Charges were framed against the appellants under Section 148, 341, 323, 324, 325, 302 read with Section 149, 120-B IPC. Charge was also framed against the appellant Omprakash under Section 3/25 of the Act. Appellants did not plead guilty and claimed trial. 7. In order to prove its case, prosecution examined 47 witnesses. Appellants when examined under Section 313 Cr.P.C., after the close of prosecution evidence, prayed that they were innocent and had been falsely involved in this case. 8. Appellants examined one witness in their defence. 9. Trial court vide judgment/order dated 30.01.2017 ordered the conviction and sentence of the appellants Krishan Kumar son of Omprakash and Dharamveer Singh under Section 302, 148, 341 IPC, whereas, appellant Omprakash was convicted and sentenced under Section 302 read with Section 149, 148, 323, 324, 325, 341 read with Section 149 IPC and Section 3/25 of the Act. Remaining appellants were convicted and sentenced qua offence punishable under Section 302 read with Section 149, 148, 323, 324, 325, 341 read with 149 IPC. Hence, the present appeal by the appellants. 10. Learned counsel for the appellants Krishan son of Omprakash, Dharamveer Singh, Anoop Singh and Omprakash has submitted that the said appellants have been falsely involved in this case due to previous enmity. So far as appellant Krishan son of Omprakash is concerned, he was found innocent during investigation and has summoned to face the trial on an application moved by the prosecution under Section 319 Cr.P.C. PW-13/14 Choturam, PW-14/15 Phool Singh, PW-15/16 Ranveer, PW-16/17 Suresh Kumar and PW-17/18 Rajendra have deposed that on the day of incident, appellant Krishan son of Omprakash was not present at the spot and was rather present at village Kalwari. Although, it was the case of the prosecution that appellants Krishan son of Omprakash and Dharamveer Singh had fired from their country made pistols at Hansraj, but as per the medical evidence, deceased had suffered firearm injuries on account of one shot. Although, prosecution witnesses had alleged that the shots had been fired by appellant Krishan son of Omprakash and appellant Dharamveer Singh, but no recovery of any weapon had been effected from them. Although, prosecution witnesses had alleged that the shots had been fired by appellant Krishan son of Omprakash and appellant Dharamveer Singh, but no recovery of any weapon had been effected from them. Rather recovery of country made pistol has been effected from appellant Omprakash. In-fact, the alleged eye-witnesses had not witnessed the factum of infliction of firearm injuries to Hansraj and had reached the spot after he had already suffered the shot. 11. Learned counsel for the remaining appellants have submitted that no specific overt act was attributed to appellants Chandraprakash, Krishan son of Dalip Singh, Veer Singh, Ran Singh and Suresh, although, they had been named by the witnesses in their statements. 12. Learned counsel on behalf of the appellant Ran Singh and appellant Suresh have submitted that the said appellants have been falsely involved in this case as appellant Ran Singh had appeared as a witness against the complainant party in the murder case of Abhey Singh. 13. Learned counsel on behalf of appellant Krishan Singh has submitted that the said appellant was the Sarpanch at the relevant time and had made efforts to remove the blockage of the passage made by the complainant party. Chandraprakash and Krishan Singh son of Dalip Singh had signed the proceedings initiated by the Panchayat and due to this reason they had been falsely involved in this case. 14. Learned state counsel who is assisted by the counsel for the complainant has opposed the appeals and has submitted that all the appellants in connivance with each other had committed the crime-in-question. 15. Complainant Rajpal while appearing in the witness-box as PW-1 has deposed as per the contents of the FIR. In his cross-examination, he deposed that Hansraj had only suffered firearm injuries. He could not tell, apart from Dharam Singh and Krishan son of Omprakash, with regard to the weapons carried by other appellants and he also could not tell as to which appellant had inflicted any specific injury to the injured. 16. PW-2 Dharmendra deposed that on the day of incident Dharamv Singh and Krishan son of Omprakash had fired at Hansraj. Although, he had also suffered injuries in the incident, but he could not tell as to who had inflicted injuries to him or with what weapon. He admitted that the dispute had arisen between the parties relating to a passage. 17. Although, he had also suffered injuries in the incident, but he could not tell as to who had inflicted injuries to him or with what weapon. He admitted that the dispute had arisen between the parties relating to a passage. 17. PW-3 Surendra Singh deposed that on hearing the firearm shot on 26.05.2012, he came out of his house and saw that Krishan son of Omprakash and Dharam Singh and seven other persons were armed with sticks and farsi. Hansraj, his uncle has suffered firearm injury. He did not suffer any injury and fled away from the spot. In his cross-examination, he deposed that he had not witnessed the incident. 18. PW-4 Rankala deposed that on 26.05.2012 she was present in her house. On hearing the firearm shot, she came out of the house and saw that her husband Krishan had suffered a firearm injury. Dharam Singh and Krishan were having country made pistols in their hands. They were inflicting injuries to Kamlesh, Rajpal and Dharmendra. All the other appellants were armed with sticks and farsi. Thereafter, she lost consciousness. In her cross-examination, she deposed that at the time of the incident, she was present in her house and had come out of the house on hearing noise. She could not tell as to who had fired the shot. 19. PW-5 Gyaniram deposed that on the day of the incident Hansraj had suffered firearm injury at the hands of Omprakash. He had not witnessed anything else. 20. PW-7 Hoshiyar deposed that on the day of incident, he was present in the house and on hearing firearm shot, he came out of the house. In his cross-examination, he deposed that he had not seen any appellant inflicting injuries to any person. 21. PW-8 Mahendra Singh deposed that on the day of the incident, he had come out of his house on hearing noise. Near the gate of Rajpal, Omprakash, Dharm Singh, Anoop Singh, Krishan son of Omprakash, Krishan son of Dalip Singh, Suresh, Veer Singh and Ransingh were present. Krishan son of Omprakash was armed with country made pistol. Dharamsingh was also armed with a country made pistol. The remaining appellants were armed with sticks and farsi. Rajpal, Kamlesh, Mintu @ Dharmendra had suffered injuries, whereas, Hansraj had suffered firearm injuries. Police reached the spot. In his cross-examination he deposed that the occurrence had not taken place in his presence. 22. Dharamsingh was also armed with a country made pistol. The remaining appellants were armed with sticks and farsi. Rajpal, Kamlesh, Mintu @ Dharmendra had suffered injuries, whereas, Hansraj had suffered firearm injuries. Police reached the spot. In his cross-examination he deposed that the occurrence had not taken place in his presence. 22. PW-13/14 Chhoturam deposed that on 18.05.2012 Krishan Kumar had gone to his house from their village and returned on 21.05.2012. He was working as a mason with them. On 27.05.2012 he told them that he had received an information from his house that some fight had taken place. On 26.05.2012, he was working with them. 23. PW-15/16 Ranveer has corroborated the statement of PW-13/14 Chhoturam. 24. PW-16/17 Suresh Kumar has also corroborated the statement of PW-13/14 Chhoturam. 25. PW-24/25 Dr. Ravi Prakash Meena deposed that on 26.05.2012 he had medically examined injured Kamlesh, Dharmendra and Rajpal. He had found five injuries on the person of injured Kamlesh and five injuries on the person of injured Dharmendra and three injuries on the person of injured Rajpal and one injury on the person of Ram Singh. He proved their medico legal examination reports Ex. P-27 to Ex. P-30 in this regard. Witness further deposed that on 27.05.2012 he had conducted the postmortem examination of deceased Hansraj. He proved the postmortem examination report Ex. P-31 in this regard. In his cross-examination he deposed that it was correct that injuries on the person of deceased Hansraj were a result of one shot. 26. PW-27/28 Kamlesh deposed that on 26.05.2012, she was present in her house. At about 4.00 p.m., Omprakash, Krishan son of Omprakash, Dharamsingh, Anoop Singh, Ran Singh, Veer Singh, Lalaram, Krishan and Suresh came to their house and attacked her brother-in-law Hansraj. Krishan and Dharam had fired at Hansraj. When she intervened, Anoop inflicted injuries to her with stick/farsi. Her husband, Dharmendra also suffered injuries in the incident. She admitted in the cross-examination that the deceased had suffered only firearm injury. 27. PW-28/29 Ram Singh deposed that he could not tell who had inflicted firearm injury to Hansraj. 28. PW-29/30 Mahaveer Singh had reached the spot after the incident on hearing the noise of pistol shot. 29. Investigating Officer-Rohitash appeared in the witness-box as PW-34. He deposed with regard to the investigation conducted by him. 27. PW-28/29 Ram Singh deposed that he could not tell who had inflicted firearm injury to Hansraj. 28. PW-29/30 Mahaveer Singh had reached the spot after the incident on hearing the noise of pistol shot. 29. Investigating Officer-Rohitash appeared in the witness-box as PW-34. He deposed with regard to the investigation conducted by him. In his cross-examination he deposed that during investigation it transpired that Krishan Kumar was not present in the village on the day of incident and was present in village Kalwari (Haryana). He also deposed that firearm had been used by accused Omprakash at the time of the incident. 30. DW-1 Bastiram deposed that he knew the Dharmveer. Dharmveer was working as a security guard in their company and on 26.05.2012 Dharmveer was with him. 31. Present case rests on eye-witness account. Injured have been examined by the prosecution, during trial. Complainant had also suffered injuries in the incident. Complainant while appearing in the witness-box as PW-1 and injured Dharmendra while appearing in the witness-box as PW-2 and injured Kamlesh while appearing in the witness-box as PW-28 have deposed that appellants Krishan S/o. Omprakash and Dhram Singh were armed with country made pistols and had fired at Hansraj. As a result, Hansraj suffered firearm injuries and later succumbed to his injuries. Injured Kamlesh has deposed that Anoop had inflicted injury to her with stick/farsi. So far as other appellants are concerned (apart from appellants Krishan, Dharam Singh and Anoop), no specific overt act is attributed to them. 32. Although, PW-5 Gyaniram has deposed that Omprakash had fired at Hansraj and during investigation recovery of pistol has been effected from appellant Omprakash but the testimony of PW-5 is not corroborated by the injured witnesses. Presence of the injured witnesses at the spot cannot be doubted. Rather injured witnesses Rajpal, Dharmendra and Kamlesh have deposed that appellants Krishan and Dharam Singh had fired at Hansraj. Hence, no reliance can be placed on the testimony of PW-5 Gyaniram to hold that the shot had been fired by the appellant Omprakash at Hansraj. The fact that recovery of pistol has been effected at the instance of appellant Omprakash is also not a ground in itself to hold that the firearm had been used by appellant Omprakash at the time of the incident because the ocular version does not corroborate the said fact. The fact that recovery of pistol has been effected at the instance of appellant Omprakash is also not a ground in itself to hold that the firearm had been used by appellant Omprakash at the time of the incident because the ocular version does not corroborate the said fact. Appellant Om Prakash is the father of appellant Krishan and is brother of Dharam Singh. Appellant Om Prakash might have got the pistol recovered at his instance with a view to save his son Krishan. Investigation in the present case has not been conducted in a proper manner. The investigating Officer has stated in his cross-examination that the shot had been fired by Omprakash and due to this reason it appears that he had shown the recovery of firearm from appellant Omprakash. Hence, the recovery of firearm at the instance of Omprakash appears to be doubtful and might have been done by the investigation officer to strengthen his opinion. 33. So far as appellant Anoop Singh is concerned, his participation in the crime stands established from the testimony of injured witness Kamlesh as the said witness has specifically stated that Anoop Singh had inflicted injury to her. 34. So far as appellants Chandraprakash, Krishan, Veer Singh, Ran Singh and Suresh are concerned, they are not attributed any specific overt act. Hence, the possibility that they might have been falsely involved in this case with a view to over implicate the accused, cannot be ruled out. 35. The next question that requires consideration is that as per the injured witnesses Rajpal, Dharmendra and Kamlesh, appellants Krishan son of Omprakash and Dharam Singh had fired at Hansraj. However, as per the medical evidence, deceased had suffered firearm injuries on account of one shot. It is not the case of the prosecution that one of the shots fired by either Krishan or Dharam Singh had not hit the deceased. 36. PW-26 Dr. Ravi Prakash Meena has specifically deposed that the injuries suffered by the deceased were result of one shot. 37. So far as appellant Krishan is concerned, prosecution witnesses Choturam, Ranveer, Phool Singh, Suresh Kumar, Rajendra have deposed that on the day of the incident appellant Krishan was with them in village Kalwari. The said witnesses have been examined by the prosecution itself. Due to this reason, appellant Krishan was found innocent during investigation and challan was not presented against him. The said witnesses have been examined by the prosecution itself. Due to this reason, appellant Krishan was found innocent during investigation and challan was not presented against him. Appellant Krishan son of Omprakash was summoned to face the trial on an application moved by the prosecution under Section 319 Cr.P.C. In view of the statements of the said prosecution witnesses the possibility that the injured witnesses might have falsely involved appellant Krishan son of Omprakash in this case on account of previous enmity and with a view to over implicate the number of accused, cannot be ruled out. Thus, appellant Krishan son of Omprakash is also liable to be given benefit of doubt with regard to his involvement in this case. 38. Thus, in the present case, so far as appellant Dharam Singh and Anoop Singh are concerned, their involvement in the crime stands established beyond the shadow of reasonable doubt. The ocular version with regard to the involvement of appellant Dharamveer Singh and Anoop Singh is duly corroborated by medical evidence. DW-1 Bastiram fails to rebut the testimony of eye-witnesses with regard to involvement of appellant Dharamveer Singh in this case. Although, the said witness deposed that appellant Dharamveer Singh was present at the place of his work, but in his cross-examination he deposed that he could not tell the name of the company where appellant Dharamveer Singh was working nor could tell his duties timings, although, he has stated in his examination-in-chief that they were both working in the same company. He also deposed that appellant Dharamveer Singh was staying in a room in his house on rent but had not paid him any rent. Hence, it appears that DW-1 has deposed in favour of Dharamveer Singh with a view to help him being his friend and no reliance can be placed on his testimony. 39. Since, conviction of only accused Dharamveer Singh and Anoop Singh is liable to be upheld, they cannot be held guilty of offence under Section 148 IPC. They would be guilty of offences with the aid of Section 34 IPC instead of Section 149 IPC. 40. Accordingly, D.B. Criminal Appeal No. 321/2017, D.B. Criminal Appeal No. 467/2017, D.B. Criminal Appeal No. 561/2017 and D.B. Criminal Appeal No. 562/2017 are allowed. Conviction and sentence of the said appellants as ordered by the trial Court are set aside. They would be guilty of offences with the aid of Section 34 IPC instead of Section 149 IPC. 40. Accordingly, D.B. Criminal Appeal No. 321/2017, D.B. Criminal Appeal No. 467/2017, D.B. Criminal Appeal No. 561/2017 and D.B. Criminal Appeal No. 562/2017 are allowed. Conviction and sentence of the said appellants as ordered by the trial Court are set aside. Appellants Suresh, Krishan son of Dalip Singh, Ran Singh, Veer Singh and Chandraprakash @ Lala are acquitted of the charges framed against them and impugned judgment/order dated 30.01.2017 passed by the trial Court qua them are set aside. 41. So far as D.B. Criminal Appeal No. 654/2017 is concerned, the same is partly allowed. Conviction and sentence of appellants Dharamveer Singh and Anoop Singh under Section 323, 324, 325, 341, 302 read with Section 34 IPC is upheld and appeal qua them is disposed of accordingly. Appellants Krishan son of Omprakash and Omprakash are acquitted of the charges framed against them and appeal qua them is allowed. Impugned judgment/order passed by the trial court dated 30.01.2017 qua appellants Krishan son of Omprakash and Omprakash are set aside.