JUDGMENT Ramesh Sinha, J The present criminal appeal has been preferred by the appellants against the judgment and order dated 31.5.1982 passed by the IVth Additional Sessions Judge, Rampur in S.T.No.226 of 1981, whereby the appellants, namely, Zamir Khan and Munney Khan have been convicted and sentenced under Section 302 I.P.C. for life imprisonment and under Section 323 I.P.C. for three months R.I. and appellant, namely, Pyare Khan has been convicted and sentenced under Section 302 read with Section 34 I.P.C. for life imprisonment and also under Section 323/34 I.P.C. for three months R.I. and all the the sentences were directed to run concurrently. 2. The prosecution case as appears from the FIR is that the deceased, namely, Zubair was the real brother of the informant, namely, Shoeb and their father, namely, Bhoora Khan alias Mohd. Ahmad Khan had died. Accused Pyare Khan is the grand-father of the informant Shoeb (PW1), whereas the accused Zamir Khan and Munney Khan are real brothers and are uncles of the Shoeb. There were two ancestral adjoining house of the parties, out of which one is Pucca House while the other is Kuccha House. In a portion of Pucca House, accused Munney Khan resides, whereas in another portion of the same house the informant Shoeb along with his brother Zubair (deceased) and mother resided. The accused Pyare Khan, Zamir Ahmad and one Kallan, uncle of the informant Shoeb resided in Kuccha House. After the death of the father of the informant-Shoeb, grand-father and uncles of Shoeb had formed a group against him and his deceased brother Zubair and wanted to oust them out of the house. About 9-10 days prior to the present incident, a quarrel took place between the deceased Zubair and accused Zamir Ahmad, regarding which Zamir Ahmad had lodged a report at police station Ganj against the deceased Zubair who was sent to jail. After being released from jail, the deceased Zubair had filed a complaint against accused Zamir Ahmad, which further annoyed the accused persons against the informant Shoeb and his deceased brother Zubair. 3. It is further stated in the FIR that on 2.5.1981, the deceased Zubair along with Shoeb and others were working in their factory of Karchob. After being released from jail, the deceased Zubair had filed a complaint against accused Zamir Ahmad, which further annoyed the accused persons against the informant Shoeb and his deceased brother Zubair. 3. It is further stated in the FIR that on 2.5.1981, the deceased Zubair along with Shoeb and others were working in their factory of Karchob. At about 11 a.m. accused Zamir Ahmad came to the said factory and asked the deceased Zubair to accompany him to accused Pyare Khan as he had called him for entering into a settlement in respect of the house. At once, the deceased Zubair accompanied him to the Kuccha House. They were also followed by the Shoeb (informant), Tunni, Azam and Shakir who were also working in the said factory and also by Ashiq Khan and Shamshoo Khan who were present outside the factory. Accused Pyare Khan and Munney Khan met them in the said house. The accused Munney Khan had a black bag in his hand. In the courtyard of the said house, all the three accused persons started abusing the deceased Zubair and grappled with him. At that moment, Smt. Zaibun Nisha (PW2) had also come on the roof of a nearby house and she also raised an alarm to save them. At that time, accused Pyare Khan pointing out his fingers towards the informant Shoeb and his brother Zubair scolded his two sons, namely, Zamir Khan and Munney Khan and exhorted them to shoot the deceased Zubair. On which, accused Munney Khan took out a country-made pistol from his bag and accused Zamir Khan took out a countrymade pistol from the folds of his trouser (Pyzama). Accused Munney Khan fired a shot from his countrymade pistol by putting it at the back of the deceased Zubair, while the accused Zamir Khan fired a shot from his countrymade pistol above the right ear of Zubair and on account of the gunshot injuries, Zubair fell down on the ground and died instantaneously and his brain was blown out. When the informant Shoeb and others tried to intervene and tried to apprehend the accused persons, accused Munney Khan and Zamir Ahmad again loaded one cartridge each in their respective country-made pistols, on which Shoeb and others had moved backward at that juncture. When the informant Shoeb and others tried to intervene and tried to apprehend the accused persons, accused Munney Khan and Zamir Ahmad again loaded one cartridge each in their respective country-made pistols, on which Shoeb and others had moved backward at that juncture. The accused Pyare Khan, grand-father of the Shob picked up a lathi and hit it at Shoeb and thereafter the Shoeb and others had fled away from the place of occurrence. The dead body of the deceased Zubair was lying there and informant Shoeb rushed to the police station Ganj to lodge a First Informant Report of the incident. On the bass of oral report lodged by the informant Shoeb about the occurrence on the same day at about 11.30 a.m. at police station Ganj which was endorsed in the General Diary and true copy of which has been marked as Ext. Ka.5. 4. Shri Niwas Vashisth, who was the In-charge of the police station Ganj on 2.5.1981,was present at the police station when the F.I.R. of the occurrence was lodged. He recorded the statement of the informant Shoeb and proceeded to the place of occurrence along with other Constables. He reached the place of occurrence at about 12 noon, conducted the inquest proceeding and prepared inquest report (Ext. Ka-7) of the dead body of the deceased Zubair. He prepared other necessary papers (Ext. Ka.8 to 12) and sent the sealed dead body of the deceased Zubair for post mortem examination to the District Hospital, Rampur through two Constables. He took blood stained earth and simple earth from the spot and sealed them in two separate containers and prepared a Memo (Ext. Ka.13) to that effect. He took the slipper of the deceased (Ext. Ka.26 & 27) from the spot and also prepared the Memo (Ext. Ka.14) to that effect. He also took empty cartridge (Ext. Ka 28 & 29) from the spot and after sealing them, prepared a Memo (Ext. Ka.15) to that effect. He also took three buttons separated from the shirt of the deceased Zubair and prepared a Memo (Ext. Ka.16). He also took out the pellets from the lacerated brain of the deceased Zubair and after sealing them prepared Memo (Ext. Ka.17) to that effect. Ka.15) to that effect. He also took three buttons separated from the shirt of the deceased Zubair and prepared a Memo (Ext. Ka.16). He also took out the pellets from the lacerated brain of the deceased Zubair and after sealing them prepared Memo (Ext. Ka.17) to that effect. At about 3.20 p.m. on the same day on the information of a police informer, he arrested the accused persons on the road leading to Suar in front of Degree College. On personal search of the accused namely, Zamir Khan and Munney Khan, he found the accused Zamir Khan in possession of one country-made pistol with a live cartridge in its barrel and accused Munney Khan was found in possession of a bag containing a country-made pistol and 11 live cartridges. The bag was stained with blood. He sealed country-made pistols and the bag separately and prepared a memo, a true copy of which is marked as Ext. Ka-18. He recorded the statements of all the three accused persons and deposited the recovered articles and lodged the accused at the police station. 5. The site plan of the place of occurrence was prepared by him as Ext. Ka.19. He recorded the statements of other prosecution witnesses on the same day. After completion of the investigation, he submitted charge sheet (Ext. Ka.25) against all the three accused persons on 10.5.1981. He sent the bundles containing country-made pistols, cartridges and also two empty cartridges recovered from the spot to the Ballistic Expert, Lucknow and proved the Ballistic Expert Report as Ext. Ka.24. He also forwarded the simple and blood stained earth, the clothes of the accused persons and bag recovered from the accused Munney Khan to the Chemical Examiner, Agra for chemical examination and also obtained the reports of the Chemical Examiner, Agra. 6. The case was committed to the Court of Sessions by the learned Magistrate concerned and charges were framed against the accused Pyare Khan under Section 302 I.P.C. read Section 34 I.P.C. and Section 323 I.P.C., while the accused Munney Khan and Zamir Khan stand charged for the offence under Section 302 and 323 I.P.C. read with Section 34 I.P.C. 7. The prosecution in support of its case has examined as many as 9 witnesses, namely, Shoeb as PW1, Smt. Zebun Nisha Begum as PW2, Tunni as PW3, Dr. H.B. Bhatt as PW4, Dr. S.K. Gupta as PW5, Dr. The prosecution in support of its case has examined as many as 9 witnesses, namely, Shoeb as PW1, Smt. Zebun Nisha Begum as PW2, Tunni as PW3, Dr. H.B. Bhatt as PW4, Dr. S.K. Gupta as PW5, Dr. Shishir as PW6, Constable Ram Chandra as PW7, Head Constable Zilley Hasnain as PW8 and Sub Inspector Shri Niwas Vashisth as PW9. 8. The prosecution has further filed the affidavits of Constables, namely, Maan Singh, Ram Autar Misra, Om Prakash Saxena, Doli Ram and Constable Ram Swaroop. The defence has dispensed with cross-examination from these witnesses and, therefore, their affidavits have been marked as statements of PW10 to PW14. 9. The accused have pleaded not guilty to the charges and alleged their false implication in the present case due to enmity and claimed their trial. The statements of the accused were recorded under Section 313 Cr.P.C. in which they have denied the prosecution case and deposed before the trial Court that false prosecution has been launched against them. They have further deposed that on account of enmity they have been prosecuted. Moreover it was further stated by the accused Zamir Ahmad Khan that on the day of incident, informant Shoeb and deceased Zubair had come to his Kuccha House having dandas in their hands with an intention to kill him and assaulted him, on account of which he and Munney Khan had received injuries. When Munney Khan assaulted the informant Shoeb with danda, Shoeb took out revolver and fired, on account of apprehension he (Zamir Khan) also fired shot at Shoeb with his countrymade pistol which hit the deceased Zubair and fire of the informant Shoeb also hit the deceased Zubair,as a result of which Zubair died. His father accused Pyare Khan was not present at the place of occurrence and witness Shoeb was only present at the place of occurrence and no one else was there. 10. The trial Court after examining the prosecution evidence and defence version came to the conclusion that it was the accused, namely, Pyare Khan, Munney Khan and Zamir Khan who were found to be involved in the present incident and has convicted them for the aforesaid offence by passing the impugned judgment and order. Being aggrieved by the said judgment and order of the trial Court, the appellants have challenged the same before this court in the instant appeal. 11. Being aggrieved by the said judgment and order of the trial Court, the appellants have challenged the same before this court in the instant appeal. 11. It is noteworthy to mention here that during the pendency of the present appeal, accused appellant no.1 Munney Khan @ Jamil, son of Pyare Khan and appellant no.3 Pyare Khan have died and their appeal have already been ordered to be abated by this Court vide orders dated 11.9.2014 and 23.7.2007 respectively, hence, the present appeal is only confined to the surviving appellant no.2, namely, Zamir Khan whose case is to be adjudged by this Court in the present appeal. 12. PW1-Shoeb who is the informant of the case and real brother of the deceased Zubair has reiterated the prosecution case, as has been set out in the First Information Report by him. He also stated that he received injuries in the incident at the hands of accused Pyare Khan who assaulted him with lathi. He further deposed before the trial Court that he has lodged the oral report at the concerned police station about the incident and he has proved the oral report as Ext. Ka.1 and on the basis of which F.I.R. was registered against the accused persons including the appellant no.2, namely, Zamir Khan. For the sake of brevity, the statement given by PW1 before the trial Court is not being reproduced here. 13. So far as PW2- Smt. Zebun Nisha Begum is concerned, she has deposed before the trial Court that her house is adjoining to the house of Shakeel Khan, which is adjoining to the house of Pyare Khan. She further deposed that about nine months ago at about 11 a.m. she had gone to take water at the house of Shakeel Khan from his hand pump where she had heard the abuses and thereafter she immediately rushed to the roof of Shakeel Khan from where she saw that the deceased Zubair was caught-hold by the accused Pyare Khan in his Kuccha House and accused Zamir Khan and Munney Khan were also present there. Towards the gate of the house Shoeb, Tunni, Azam, Ashiq and Shamshoo Khan were also present. The witnesses raised alarm, whereupon the accused Pyare Khan threatened them and exhorted his sons Munney Khan and Zamir Khan to shoot at the Zubair. Towards the gate of the house Shoeb, Tunni, Azam, Ashiq and Shamshoo Khan were also present. The witnesses raised alarm, whereupon the accused Pyare Khan threatened them and exhorted his sons Munney Khan and Zamir Khan to shoot at the Zubair. Munney Khan took out a countrymade pistol from his bag, whereas the accused Zamir Khan took Khan countrymade pistol from the folds his Pyzama (trouser). She further deposed that accused Munney Khan fired shot from his countrymade pistol by putting it at the back of deceased Zubair while the accused Zamir Khan fired shot from his countrymade pistol in between area of forehead of Zubair to kill him and the Zubair died on the spot as a result of gun shot injuries. On which Shoeb, brother of the deceased moved towards his brother whereupon the accused Pyare Khan struck lathi blow on Shoeb at his hand and when Shoeb rushed from the house, he dashed against the door. Accused Munney Khan and Zamir Khan re-loaded their country-made pistols respectively and due to fear she moved back. 14. Similarly, PW3-Tunni, who is a child witness, who was also present at the place of occurrence and had witnessed the incident, has also repeated the prosecution case as has been stated by PW1 and PW2. This witness has deposed before the trial Court that he was working as Karchob at the workshop of the deceased at the relevant point of time and besides him, Shoeb Khan, Azam, Shakir were also working in that workshop. At about 11 a.m. while all of them were working, accused Zamir Khan had come in the said workshop and asked Zubair to accompany him as he was called by his grand-father accused Pyare Khan for settling the dispute of the house, on which Zubair proceeded with the accused Zamir Khan towards his house, on which he along with Shoeb, Azam and Shakir also followed them. Ashiq Khan and Shamsoo Khan who were also talking at the the culvert, also accompanied them and they reached at the Kuccha House of the accused Pyare Khan. Ashiq Khan and Shamsoo Khan who were also talking at the the culvert, also accompanied them and they reached at the Kuccha House of the accused Pyare Khan. Accused Pyare Khan and Munney Khan were also present in the said house and they all started abusing the deceased Zubair and grappled with him and when this witness along with others raised alarm, accused Pyare Khan threatened them and directed his both the sons Munney Khan and Zamir Khan to shoot at the deceased Zubair, on which the accused Munney Khan took out a countrymade pistol from his bag and kept it at the back of Zubair and accused Zamir Khan took out a countrymade pistol from the pocket of his trouser and put it at the temporal region of the deceased Zubair. Both the accused, namely, Munney Khan and Zamir Khan each fired shot hitting back and temporal region of the deceased Zubair, on account of which he fell down and died. The two accused Munny Khan and Zamir Khan again loaded one more cartridge in their respective firearm weapon. As the informant Shoeb tried to go ahead, whereupon the accused Pyare Khan gave a lathi blow at Shoeb and he collided with the door of the house and went to the police station for lodging the F.I.R. This witness also identified the accused present at the time of his deposition. 15. PW-4 Dr. H.B. Bhatt has deposed before the trial Court that on 3.5.1981 he was posted at District Hospital, Rampur and had conducted the post mortem of the deceased Zubair when his dead body was brought by the two Constables in a sealed condition and found the following ante-mortem injuries:- 1. Gunshot wound of entry 6 cm. x 4 cm. x Brain cavity deep present on the right side of face 1 cm. away from lower end of ear lobe. Blackening scorching and tattooing of skin present. 2 Gunshot wound exit 10 cm. x 9 cm. x Brain cavity deep (connected with injury no.1) on right side of head 10 cm. above from right ear. In the passage of wound right mandible is fractured. Right eye is torn multiple pieces of skull bone seen. The brain matter is coming out from wound. 3. Gunshot wound of entry 2 cm. x 1 cm. x chest cavity deep on left side of back 10 cm. below from left shoulder top. above from right ear. In the passage of wound right mandible is fractured. Right eye is torn multiple pieces of skull bone seen. The brain matter is coming out from wound. 3. Gunshot wound of entry 2 cm. x 1 cm. x chest cavity deep on left side of back 10 cm. below from left shoulder top. 4. Old septic wound .5 cm. x 0.25 cm. x skin deep on left chest 10 cm. above from left nipple. 5. stitched wound 1 cm. long on outer aspect of left upper arm 11 cm. above from left elbow joint. Scalp and skull described in injury nos.1 and 2. 16. On internal examination of the dead body of the deceased Zubair, the doctor found that the membrane were torn. Brain was badly lacerated. Clotted blood was present. Nine pellets were recovered from brain matter. Base of skull is fractured. The left pleura torn. The left lung torn under injury no.1. Heart; both chambers were empty. Half fluid blood was present in chest cavity and 10 pellets recovered from left chest cavity. Stomach was empty. 17. In the opinion of the doctor, the cause of death of the of the deceased Zubair was 'Coma' due to head injury. The doctor has opined that the aforesaid injuries were sufficient to cause death in the ordinary course of nature. He sealed the clothes of the deceased and 10 pellets and handed over to constable Ram Chandra Singh. He has further stated that the injuries could be caused by fires made from the countrymade pistols. 18. PW6-Dr. Shishir has deposed before the trial court that on 2.5.1981 he was posted in the District Hospital, Rampur and had medically examined PW1-Shoeb at 1.45 p.m. on 2.5.1981 and found the following injuries on his person:- 1. Multiple abraded contusions in an area 25 cm. x 4 cm. on the outer aspect on left forearm 2 cm. below joint. 2. Contusion 2 cm. x 1 cm. on the front of left palm 1 cm. below wrist joint. 19. In the opinion of the doctor, injuries were caused by some hard and blunt object and were fresh in duration. Injury no.2 could be caused with lathis and dandas whereas the injury no.1 could also be caused due to friction against the wall. The doctor has proved his report (Ext. Ka.4). 20. below wrist joint. 19. In the opinion of the doctor, injuries were caused by some hard and blunt object and were fresh in duration. Injury no.2 could be caused with lathis and dandas whereas the injury no.1 could also be caused due to friction against the wall. The doctor has proved his report (Ext. Ka.4). 20. PW7-Ram Chandra has stated before the trial Court that he took the sealed dead body of the deceased Zubair from the spot to the District Hospital, Rampur for post mortem examination at 2.30 p.m. on 2.5.1981 and he allowed none to touch the dead body so long as it remained in his possession. 21. PW8-Head Constable Zilley Hasnain has proved the FIR (Ext. Ka-1) and the true copy of General Diary (Ext. Ka-5). He also proved the memo (Ext. Ka.-6) prepared by him in respect of the arrest of the accused persons and also the recovery of their blood stained clothes. He has also identified the clothes (Ext. Ka.1 to Ext. Ka.4) belonging to the accused Zamir Khan and Munney Khan. 22. PW9-Sub Inspector S.N. Vashistha who was the Investigating Officer of the case has deposed before the trial Court that he had conducted the investigation of the case, conducted the inquest of the dead body of the deceased, prepared the police papers and sent the dead body for post mortem examination and also recorded the statements of the witnesses, arrested accused and after completing the investigation, submitted the charge sheet Ext. Ka. 25 accordingly and proved the same as well as papers. 23. As has been earlier pointed out that the affidavits have been filed by Constables namely, Man Singh, Ram Autar Singh and Om Prakash a Clerk of the office of Chief Medical Officer, Rampur, Constable Dauli Ram and Constable Ram Swaroop Saxena and defence have dispensed with the cross-examination from these witnesses, therefore, their affidavits have been marked as statements of PW10 to PW14. 24. Dw1-Dr. N.C. Agarwal has deposed before the trial Court that on 4.5.1981 he was posted as A.M.O., District Jail, Rampur has stated before the trial Court that he had examined the accused Munney Khan on 4.5.1981 at about 9.05 a.m. and accused Zamir Khan at about 9.20 a.m. and following injuries on their person: Munney Khan 1. Scapped abrasion 2 cm. x 1 cm. on the back of left elbow. 2. Scapped abrasion .5 cm. Scapped abrasion 2 cm. x 1 cm. on the back of left elbow. 2. Scapped abrasion .5 cm. x .5 cm. on the back of left elbow 1 cm. away from injury no.1. 3. Scapped abrasion .5 cm. x .5 cm. on the front of right knee. In the opinion of the doctor, the injuries are simple in nature and caused by friction against the hard object. Duration is 24 hours. Zamir Khan 1. Lacerated wound 2 cm. x 1 cm. x muscle deep on front of right leg in middle. 2. Scapped abrasion .5 cm. x .5 cm. on the web between left thumb and index finger. In the opinion of the doctor, the injuries are simple and caused by blunt object. Duration is about 24 hours. 25. Heard Sri V.P. Srivastava, learned Senior Advocate, assisted by Sri Anshul Tiwari, learned counsel for the appellants, Sri Jai Narain, learned AGA for the State and perused the lower court record. 26. Sri Vivek Prasad Mathur, learned counsel for the complainant is not present, though the matter has been taken up in the revised list. 27. It has been vehemently argued by learned counsel for the appellant that the appellant along with the co-accused Munney Khan have received injuries on their person and when they were lodged in jail, they were medically examined by the jail doctor Sri N.C. Agrawal (DW1) and prosecution has failed to explain the injuries caused to the said accused persons. He strongly submitted that in the statement of the accused recorded under Section 313 Cr.P.C. appellant, namely, Zamir Khan, a categorical defence has been taken by the accused that on the day of incident the informant Shoeb and deceased Zubair armed with danda had come to his Kuccha House in order to kill them and assaulted them, on account of which he along with Munney Khan had received injuries. When Munney Khan assaulted the Shoeb with danda then Shoeb took out a revolver and fired and on account of apprehension he also fired at him which hit the deceased Zubair and fire of informant Shoeb also hit the deceased. The accused Pyare Khan, who was his father, was not present at the place of occurrence and only Shoeb was present and none else. The accused Pyare Khan, who was his father, was not present at the place of occurrence and only Shoeb was present and none else. He further argued that the prosecution has failed to explain the injuries of the accused Zamir Khan and Munney Khan, hence, origin of the incident has been concealed by the prosecution and accused appellant has been wrongly convicted by the trial Court and he is entitled to be acquitted by this court by setting aside the impugned judgment and order of the trial Court. 28. He next argued that it was in the self defence that the accused appellant, namely, Zamir Khan fired shot at the informant Shoeb in order to save himself and his brother Munney Khan which hit the deceased Zubair. Even if the prosecution case is taken at its own face value, then it can be a case of exceeding right of private defence and conviction of the appellant under Section 302 I.P.C. by the trial Court is against the evidence on record and case would not travel beyond Section 304 I.P.C. 29. In support of his argument, learned counsel for the appellant has placed reliance on the judgments of the Apex Court in the case of Lakshmi Singh & Others Vs. State of Bihar, reported in, (1976) 4 SCC 394 , Amarjit Singh Vs. State of Haryana, reported in, (2010) 3 SCC(cri) 381 & Babu Ram and Others Vs. State of Punjab, reported in, (2008) CriLJ 1651 30. Learned AGA on the other hand, has vehemently opposed the arguments advanced by learned counsel for the appellant and submitted that from perusal of the First Information Report lodged by the informant Shoeb against the accused persons including the appellant shows that the deceased Zubair who was the grand son of co-accused Pyare Khan was called by him through his son, namely, Zamir Khan to his house on the pretext for settlement of the partition of the house as the deceased Zubair was working in his workshop along with his brother informant Shoeb. The deceased Zubair on receiving the said information went with the accused appellant Zamir Khan to meet his grand-father accused Pyare Khan and at that time the informant Shoeb who was also working with him in the workshop along with others at the workshop, also accompanied them and when the deceased Zubair reached the house of the accused Pyare Khan, all the three accused persons started abusing the deceased and grappled with him and the accused Pyare Khan directed his two sons, namely, Munney Khan and Zamir Khan to shoot the deceased Zubair. On which, accused Munney Khan took out a country-made pistol from his bag and accused Zamir Khan took out a countrymade pistol from the folds of his trouser (Pyzama). Accused Munney Khan fired a shot from his countrymade pistol by putting it at the back of the deceased Zubair, whereas the accused Zamir Khan shot at the deceased on his temporal region, on account of which he died at the spot and when the informant Shoeb tried to intervene in the matter, then the said accused Munney Khan and appellant Zamir Khan again loaded their countrymade pistols, on which the informant Shoeb moved backward and he was assaulted by a stick by the accused Pyare Khan, on account of which he received injures and on an alarm being raised by the witness accused persons fled away from the place of occurrence. 31. He further argued that it is a categorical case of the prosecution that as soon as the deceased reached in the house of accused Pyare Khan, there were some altercation took place between the parties and the accused started abusing the deceased and scuffle took place between them and it appears that some minor injuries were caused to the accused which were superficial in nature, hence, the Investigating Officer who arrested the accused persons including the appellant on 2.5.1981 at 4.15 p.m. along with countrymade pistol and cartridges in their possessions, did not notice any serious injuries on the person of the said two accused Munney Khan and Zamir Khan on their arrest, hence, did not get them medically examined in District Hospital, Rampur. 32. He next argued that DW1 Dr. 32. He next argued that DW1 Dr. N.C. Agrawal who examined the accused appellant Munney Khan on 4.5.1981 at 9.05 a.m. when they were confined in jail has reported that duration of the said injuries to be 24 hours old, hence, it is apparent that the said two accused persons did not receive any serious injuries on their person on 2.5.1981.Thus, the injuries which are stated to have been received by the accused persons appear to have been fabricated after their arrest and were not received in the incident. The case laws which have been relied upon by the learned counsel for the appellant are distinguishable from the facts and circumstances of the present case. 33. He urged that the appellant Zamir Khan has taken specific plea in his statement under Section 313 Cr.P.C. that he apprehended danger to his life when the informant Shoeb assaulted him with lathi, he fired shot at Shoeb which hit the deceased Zubair and the other shot of the revolver of the Shoeb also hit the deceased Zubair. He stated that as the appellant himself has admitted the fact that his shot hit the deceased, which goes to show that the appellant has admitted the incident and at the time of his arrest on 2.5.1981 a countrymade pistol along with 9 live cartridges and one countrymade pistol was also recovered from the accused Munney Khan and two empty cartridges which were also recovered by the Investigating Officer from the place of occurrence were sent to the Ballistic Expert and as per the report of the Ballistic expert two empty cartridges which were recovered with the two countrymade pistols from the possession of the appellant, shows an incriminating circumstance against the accused persons and their involvement in the case, then the plea of self defence was taken by them. 34. He further submitted that there is no evidence to show that the informant Shoeb or the deceased Zubair were armed with any deadly weapons and just to escape the liability of the murder of the deceased the said plea appears to have been taken by the appellant, which is a false one and goes to show the guilt of the accused in the present case and the trial Court has rightly convicted the accused appellant for the aforesaid charges, the appeal is devoid of merit and be dismissed. 35. 35. Having considered the submissions advanced by learned counsel for the parties and perused the impugned judgment and order as well as lower court record. 36. The prosecution case as has been set out in the First Information Report by the informant Shoeb that the incident has taken place on 2.5.1981 and his brother Zubair was called by the accused Pyare Khan at his house through the accused Zamir Khan who had gone to call him from his workshop on the pretext for settling the dispute regarding partition of the house, where the deceased along with the informant Shoeb and others was working. On which, the deceased Zubair had accompanied the accused Zamir Khan to meet his grand father at his house and he was followed by the informant Shoeb and the other persons working there. At the house of accused Pyare Khan, some quarrel took place between the parties, due to which all the accused persons started abusing the deceased and accused Pyare Khan directed his two sons Munney Khan and Zamir Khan to shoot at the deceased, on which accused Munney Khan took out a countrymade pistol from his bag which he was carrying and accused Zamir Khan took out a countrymade pistol from the pocket of his trouser and accused Munney Khan shot at the deceased by putting countrymade pistol at his back, whereas the accused Zamir Khan shot the deceased on his temporal region, due to which the deceased Zubair had fallen down instantaneously and died. When the informant Shoeb tried to intervene, he apprehended some danger to his life as the two accused persons, namely, Munney Khan and Zamir Khan reloaded their countrymade pistol respectively, hence, he moved backward and on that very moment accused Pyare Khan assaulted the informant Shoeb with a stick and on alarm being raised by the witnesses and the informant, the accused fled away from the place of occurrence. Thereafter, the informant Shoeb immediately rushed to the police station leaving the dead body of his brother in the house of the accused and lodged an F.I.R. at 11.30 a.m. at police station Ganj. The police arrived and conducted inquest proceeding and sent the dead body of the deceased for post mortem. 37. Thereafter, the informant Shoeb immediately rushed to the police station leaving the dead body of his brother in the house of the accused and lodged an F.I.R. at 11.30 a.m. at police station Ganj. The police arrived and conducted inquest proceeding and sent the dead body of the deceased for post mortem. 37. The investigating Officer arrested the accused persons on the same day at 4.15 p.m. and from possession of the accused Munney Khan and the appellant Zamir Khan, countrymade pistols along with live cartridges were recovered. 38. The Investigating Officer prepared the recovery memo of the countrymade pistols and live cartridges which were recovered from the possession of the accused Munney Khan and the appellant Zamir Khan and also two empty cartridges from the place of occurrence and sent the same to the Ballistic Expert. He further recovered a bag and clothes of accused Zamir Khan and also sent them for chemical examination along with the blood stained earth and simple earth and also prepared recovery memo for the same. 39. The contention of the learned counsel for the appellant that the accused Munney Khand and appellant Zamir Khan who have received injuries in the incident, no explanation for the same has been given by the prosecution regarding the same which shows that origin of the incident has been concealed by the prosecution creates clouds of doubts about the prosecution case and accused appellant are entitled for acquittal by this court and he has been wrongly convicted by the trial Court, is not at all acceptable as the injuries which were sustained by the accused appellant and co-accused Munney Khan were simple in nature, as has been opined by DW1-Dr.N.C. Agarwal who had examined the injuries of the said two accused persons and proved the same as Ext. Kha.1 and 2 and it further shows that the injuries received by them are superficial in nature. 40. Moreover, as per the evidence of DW1 before the trial Court, it could not be proved by him that the appellant had received injuries in the present incident. Kha.1 and 2 and it further shows that the injuries received by them are superficial in nature. 40. Moreover, as per the evidence of DW1 before the trial Court, it could not be proved by him that the appellant had received injuries in the present incident. In this regard, the duration of the injuries which have been mentioned in the medical examination report of the said two accused shows that it is 24 hours old as the same was examined on 4.5.1981 at 9.05 a.m. and 9.20 a.m. respectively, whereas the incident has taken place on 2.5.1981 at 11 a.m. The findings recorded by the trial Court in this respect, which has disbelieved the evidence of DW1 Dr. N.C. Agrawal who had examined the two accused in jail, has come to the conclusion that the said injuries has not been caused in the present incident and it appears to have been fabricated after their arrest and it could be self inflicted one also. 41. The next argument of the learned counsel for the appellant that the accused appellant has taken a defence in his statement under Section 313 Cr.P.C. that he had fired shot at the deceased with his countrymade pistol in right to private defence and even if the prosecution case is taken to its face value the case would not travel beyond Section 304 I.P.C. and conviction of the appellant under Section 302 I.P.C. by the trial Court is against the evidence on record and the case would not travel beyond Section 304 I.P.C., also has no substance. 42. From perusal of the prosecution case, it is evident that it has nowhere come in the evidence that the deceased was armed with deadly weapon or to say with any other weapon such as lathi or danda. 42. From perusal of the prosecution case, it is evident that it has nowhere come in the evidence that the deceased was armed with deadly weapon or to say with any other weapon such as lathi or danda. It is clear from the evidence of PW1 and PW2 that the appellant Zamir Khan had come at the workshop of the deceased Zubair and called him saying that the accused Pyare Khan, grand father of the deceased and father of the accused appellant, had called him to his house for settlement of the dispute with respect to partition of the house, and the deceased had innocently gone to meet his grand father along with the informant Shoeb and other persons working in the workshop and as soon as he reached at the house the accused persons, a quarrel had taken place between the parties and accused started abusing the deceased and complainant party and accused Pyare Khan directed his two sons, namely, Munney Khan and Zamir Khan to shoot at the deceased who shot at the deceased with their respective weapons who received injuries on his back and temporal region and died instantaneously. When the informant Shoeb tried to intervene in the matter to save his brother (deceased), the accused Munney Khan and Zamr again loaded their respective countrymade pistols, on which accused Pyare Khan assaulted the informant Shoeb with a stick and he received injuries on his person and when the witnesses raised alarm, the accused fled away from the place of occurrence and from the place of occurrence, no revolver or any stick or danda was recovered by the Investigating officer who visited the place of occurrence immediately after lodging the FIR on the same day at 12 noon and he found two empty cartridges from the place of occurrence along with the blood stained earth and simple earth and sent the same to Ballistic Expert. The Ballistic Expert report shows that the two empty cartridges which were recovered from the place of occurrence when tallied with the two country-made pistols recovered from accused Munney Khan and appellant Zamir Khan, it was found that they were fired from the said weapons, which goes to show that it was the appellant Zamir Khan and co-accused Munney Khan who had shot at the deceased Zubair. Moreover, human blood was found on the clothes of the accused Munney Khan and appellant Zamir Khan and on the clothes of appellant Zamir Khan and deceased Zubair the blood of group 'B' was found as per the report of Serologist dated 8.9.1981 (Ext. Ka.20) and 25.7.1981 (Ext. Ka.21) respectively which is also a clinching evidence showing the involvement of the appellant in the murder of the deceased. 43. The ocular testimony of PW1 Shoeb who is the injured witness and PW3 Tunni goes to show that the shot which was fired by the appellant Zamir Khan at the temporal region of the deceased, i.e., injury no.1 shows that blackening scorching and tattooing of skin was present and brain matter was coming out from wound, multiple pieces of skull bone were seen and mandible was fractured. Nine pellets were recovered from the brain matter and base of skull was fractured, which was found by PW4 Dr. H.B. Bhatt. 44. The motive to commit the crime by the accused including the appellant which has been suggested by the prosecution, was also strong one as 9-10 days prior to the present incident, an incident had taken place between the deceased and the accused persons and the deceased was sent to jail in a criminal case which was lodged by the accused persons and on his release from jail in the said case the deceased had filed a complaint against the accused Munney Khan and the accused appellant about the incident in which he received firearm injuries and was also examined by the Dr. S.K.Gupta (PW5) on 25.4.1981 and the said injury report is also exhibited as Ext. ka.3 in the present case, due to which the accused were annoyed and have murdered the deceased on account of the same. 45. S.K.Gupta (PW5) on 25.4.1981 and the said injury report is also exhibited as Ext. ka.3 in the present case, due to which the accused were annoyed and have murdered the deceased on account of the same. 45. The defence taken by the accused appellant that the in self defence the accused appellant fired shot at the informant Shoeb in order to save himself and his brother Munney Khan which hit the deceased Zubair and the shot which was fired by the informant Shoeb with revolver also hit the deceased, is absolutely false one as in view of the report of the Ballistic Expert which shows that the two countrymade pistols which were recovered from the present accused appellant and accused Munney Khan when tallied with the empty cartridges which were used shows that the said two weapons the accused were armed with by which they have assaulted the deceased and PW2-Smt.Zaibun Nisa Begum who is a neighbour, her ocular testimony corroborates the prosecution case as she is an eye witness of the occurrence and independent person. 46. The learned counsel for the appellant has relied upon the judgment of the Apex Court in the case of Lakshmi Singh & Others Vs. State of Bihar, reported in, (1976) 4 SCC 394 to stress his point of argument that due to the injury having been received by the accused side not having been explained, the origin of the occurrence becomes shrouded in mystery, but we do not find the above ruling to give any assistance to the said argument of learned counsel for the appellant because in the said ruling it is also mentioned that the “Hon'ble Supreme Court” in State of Gujarat Vs. Bhai Fatima, (1975) 2 SCC 7 , had held that there may be cases where non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain injuries. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain injuries. The present case would be covered under the said proposition of law as laid down by the Apex Court and we find that in the case in hand the injuries of the accused side were so superficial in nature that it's non- explanation would not adversely affect the prosecution and it may also be stated that the said injuries can be self inflicted or could have been received in minor scuffle, hence, non giving of the explanation of the said injuries would not prejudice the prosecution case. 47. Learned counsel for the appellant has also relied upon the judgment of the Apex Court in the case of Amarjit Singh Vs. State of Haryana, reported in, (2010) 3 SCC(cri) 381 which also deals with the same point and in this case the prosecution had failed to explain as to how the accused had suffered injuries whose very presence was denied from the defence side. Moreover, in absence of an arm, the accused being an amputee was found not capable of using the shotgun and under these circumstances the prosecution version was found to be doubtful and conviction of the appellant was set aside. The facts of this case are totally different from the facts and circumstances of the present case as have been mentioned above, hence, no benefit would go to the accused side of this ruling. 48. Lastly, reliance is placed by learned counsel for the appellant upon the judgment of the Apex Court in the case of Babu Ram and Others Vs. State of Punjab, reported in, (2008) CriLJ 1651, in this case the injuries found on the accused were not explained by the prosecution; injuries were though simple in nature except one injury which was caused to the wife of the accused and was found to be grievous, therefore it was held that the accused could have apprehended danger to his and his wife's life and in self defence might have caused injuries to the complainant side and accordingly the accused were acquitted. The facts of the said case are also found to be different from the facts and circumstances of the case in hand because not a single injury was found to be of grievous nature, hence, no benefit of this ruling would go the accused side. 49. The finding of conviction of the accused recorded by the trial Court does not suffer from any infirmity which may call for any interference by this Court. The prosecution has proved its case beyond reasonable doubts against the accused appellant. 50. After examining the entire evidence on record, we are of the opinion that the conviction and sentence of the accused appellant Zamir Khan for the offence he is charged with by the trial Court requires to be upheld by this Court, which is hereby upheld accordingly. 51. The appeal lacks merit. It is, accordingly, dismissed. 52. The accused is on bail, his bail bonds and sureties are cancelled. He shall be taken into custody forthwith to serve out the sentence, as has been awarded by the trial Court. 53. Let a copy of this order along with the lower court record be sent to the trial Court concerned for its immediate compliance forthwith.