JUDGMENT : 1. These two criminal appeals have been preferred by the appellants against the judgement and order dated 30.05.2018, passed by Additional Sessions Judge, Court No.5, Badaun in S.T. No.519 of 2013 (State Vs. Rajnesh and others) arising out of Case Crime No.334 of 2012, under Sections 147, 148, 302/149 and 323/149 IPC, Police Station-Rajpura, District-Sambhal, whereby learned trial court convicted accused appellants Rajnesh and Vijay Pal under Section 302 r/w Section 34 IPC and sentenced each with life imprisonment and fine of Rs.10,000/-and six months simple imprisonment in case of default of fine. Trial court also convicted them under Section 323 r/w Section 34 IPC and sentenced each six months R.I. and fine of Rs.500/-and 15 days simple imprisonment in case of default of fine. Learned trial court acquitted all the other accused persons from all the charges framed against them and also acquitted accused appellant Vijay Pal of the charge under Section 25 of Arms Act. Both these appeals, being connected, are being decided together. 2. The brief facts of the case as culled out from the record are that a written report Ext. Ka.5 is submitted by informant Anek Pal at police station-Rajpura, District-Bhimnagar (Sambhal) with the averments that the in-laws’ house of his brother Gauri Shankar is in Jethpura in the family of Ram Bhoop and the in-laws’ house of accused Vijay Pal is also in the same village in the family of Kalyan. There is dispute going on between the families of in-laws of Gauri Shankar and Vijay Pal. His brother had gone to his in-laws’ house for diffusing the dispute. Accused Vijay Pal and his in-laws took it as their insult and started silent enmity with them. Further averment is that that on 12.07.2012 at about 5:00 pm, the Rajnesh brother-in-law of accused Vijay Pal, Vijay Pal, Hari Shankar, Sher Pal, Raj Pal, Ram Khiladi and Mahesh, armed with weapons, came to the house of his brother Gauri Shankar and called him. His nephew Rama Shankar @ Pappu came out of the house. All the aforesaid accused persons got him and started beating with lathiand danda. On his hue and cry, his brother Gauri Shankar came out of the house then all the accused got Gauri Shankar and said to kill him. His nephew Rama Shankar @ Pappu came out of the house. All the aforesaid accused persons got him and started beating with lathiand danda. On his hue and cry, his brother Gauri Shankar came out of the house then all the accused got Gauri Shankar and said to kill him. Then Rajnesh caught hold Gauri Shankar and Vijay Pal triggered a fire in the head of Gauri Shankar, who fell on the ground and died. Accused persons after seeing them fled away from the spot stating that if anybody gave the evidence he will be killed. 3. On the basis of aforesaid written report, a first information report Ext.Ka.3 was registered at Police Station-Rajpura, District-Bhimnagar as Case Crime No.334 of 2012 under Sections 147, 148, 149, 302, 323 and 506 IPC. Station Officer Lakshmi Shankar took up the investigation. Statements of witnesses were recorded u/s 161 of Cr.P.C. I.O. went to the spot and prepared site-plan. Blood stained and plain earth were collected from the spot and recovery memo was prepared. Injured Rama Shankar was taken to the hospital where his medical examination was conducted and medico legal report was prepared. Inquest proceedings of the deceased were conducted and inquest report was prepared. Post mortem was conducted on the body of the deceased and doctor prepared post mortem report. During the course of investigation, the I.O. arrested the accused Vijay Pal, on whose pointing out a country made pistol (Tamancha) was recovered from his house, in which one empty cartridge was found in the barrel and one live cartridge was also recovered. Tamancha with empty cartridge were sent to Forensic Science Laboratory and report was received stating the fact that the empty cartridge was fired by the aforesaid Tamancha. 4. After completion of investigation, charge sheet was submitted by I.O. against accused Rajnesh, Vijay Pal, Hari Shankar, Raj Pal, Ram Khiladi and Mahesh under Section 147, 148, 149, 302, 323, 506 IPC. Accused Sher Pal, being juvenile, charge sheet was submitted against him in Juvenile Justice Board. Another charge sheet was also submitted against accused Vijay Pal, under Section 25 Arms Act after obtaining sanction from the District Magistrate. Accused Sher Pal, being juvenile, charge sheet was submitted against him in Juvenile Justice Board. Another charge sheet was also submitted against accused Vijay Pal, under Section 25 Arms Act after obtaining sanction from the District Magistrate. The case being triable exclusively by the Court of Sessions, the Magistrate committed the case to the Court of Sessions, where the learned Sessions Judge framed charges against all the accused persons u/s 147, 148, 302 r/w Section 149 IPC and 323 r/w Section 149 of IPC. Additional charge u/s 25 Arms Act was framed against accused Vijay Pal. 5. During the course of trial, prosecution produced following witnesses: 1. Anek Pal PW1 2. Rama Shankar PW2 3. Raju Singh PW3 4. Dr. A.P. Gautam PW4 5. Kamal Singh PW5 6. Dr. S.P. Singh PW6 7. Lakshmi Shankar PW7 8. Room Singh Baghel PW8 9. Lakshmi Shankar Sharma PW9 6. Apart from aforesaid oral evidence, the prosecution has filed following documentary evidence, which was proved by leading the evidence: 1. FIR Ext. Ka-3 2. FIR Ext. Ka-5 3. Written Report Ext. Ka-1 4. Recovery memo of Tamancha, Live & Empty Cartridge Ext. Ka-10 5. Recovery memo of Blood Stained & Plain Earth Ext. Ka-9 6. Injury Report Ext. Ka-7 7. P.M. Report Ext. Ka-2 8. Vidhi Vigyan Prayogshala Report 9. Panchayatnama Ext. Ka-13 10. Charge sheet Ext. Ka-12 11. Charge sheet Ext. Ka-19 12. Order of District Magistrate Ext. Ka-20 13. Site Plan with Index Ext. Ka-8 14. Site Plan with Index Ext. Ka-11 15. Site Plan with Index Ext. Ka-18 7. After completion of prosecution evidence, statements of accused persons were recorded u/s 313 of Cr.P.C., in which they told that false case was made out against them and false evidence is produced. Accused persons filed one document, i.e., copy of G.D. in their defense. 8. Learned trial after hearing the arguments of both the sides acquitted all the accused persons of all the charges except appellants Rajnesh and Vijay Pal, who were convicted and sentenced u/s 302 r/w Section 34 of IPC and Section 323 r/w Section 34 of IPC. Appellant Vijay Pal was acquitted of the charge u/s 25 Arms Act also. Hence, this appeal. 9. Heard Smt. Abhilasha Singh, learned counsel for the appellants and learned AGA for the State as well as perused the record. 10. Appellant Vijay Pal was acquitted of the charge u/s 25 Arms Act also. Hence, this appeal. 9. Heard Smt. Abhilasha Singh, learned counsel for the appellants and learned AGA for the State as well as perused the record. 10. Learned counsel for the appellants first of all submitted that appellants were having no motive to commit the offence as charged by prosecution. She submitted that as per prosecution case, the in-laws’ house of deceased brother Gauri Shankar and in-laws’ house of Vijay Pal are in the same village, where both the family members of their in-laws were having enmity with each other. It is also a case of prosecution that Gauri Shankar had gone to his in-laws’ house to diffuse the enmity but this cannot be the motive to commit a brutal murder. Learned counsel also referred the statement of PW1 Anek Pal, where he has stated in his cross-examination that there was no enmity between them and accused. Hence, there was no motive with the appellants to commit the murder of deceased Gauri Shankar. Hence, motive set up by the prosecution is absolutely unbelievable. 11. Learned counsel for the appellants submitted that prosecution case cannot be believed on this ground alone that prosecution has established the case that at the time of occurrence, appellant Rajnesh caught hold the deceased and appellant Vijay Pal triggered the fire in his head. Learned counsel submitted that in such a position, the appellant catching hold the deceased could also sustain the fire arm injuries and his life could also be in danger but he did not sustain even a small injury. Moreover, so called injured eyewitness PW2 Rama Shankar has stated that Vijay Pal fired from behind which is contrary to the post mortem report. In post mortem report it is shown in ante mortem injuries that gun shot entry wound was in the left side of the head of the deceased and exit wound was on the right side. Hence, this evidence of PW2 that fire was triggered from behind falsifies his evidence and further it also falsifies the fact that deceased was caught hold by appellant Rajnesh because when bullet exited from right side of the head it should have been hit the appellant Rajnesh also, who is said to catch hold the deceased from right side. 12. Hence, this evidence of PW2 that fire was triggered from behind falsifies his evidence and further it also falsifies the fact that deceased was caught hold by appellant Rajnesh because when bullet exited from right side of the head it should have been hit the appellant Rajnesh also, who is said to catch hold the deceased from right side. 12. Learned counsel for the appellants further submitted that prosecution case is also falsified with the fact that although a country made pistol of .315 is said to be recovered from the house of the appellant Vijay Pal on his pointing out, which is sent to Forensic Science Laboratory, from where report was received that the empty cartridge, found in the barrel, was fired with the recovered weapon. But this recovery was found fake and trial court acquitted the appellant Vijay Pal of the charge u/ s 25 of Arms Act. When this recovery of weapon was found false, the entire case comes into the dark shadow. It is also submitted that learned trial court has opined that it is not always necessary that in each case weapon is required to be recovered. If weapon is not recovered then also accused may be convicted for the offence like murder, if it is otherwise proved. Learned counsel argued that this opinion of the learned trial court may be correct but this is a case where I.O. recovers the weapon at the instance of appellant and this recovery is found fake. This fact is not properly considered by the trial court. 13. Learned counsel for the appellants vehemently submitted that prosecution has produced three witnesses of fact PW1, PW2 and PW3 and there are several contradictions in their testimony, which go to the root of the case and it is proved that no one is eye-witness. They have not seen the occurrence at all, even PW1 admits in his cross-examination that he reached to the spot after 5 minutes of the occurrence and learned trial court also did not consider him eye-witness. PW2 and PW3 were also not present on the spot, which is proved by their testimony. 14. Learned counsel for the appellants relied on the judgements of this High Court in Criminal Appeal No.1826 of 2003 (Prem and others Vs. State of U.P.) decided on 8.4.2022 and in Criminal Appeal No.429 of 1983 (Ram Subhag and another Vs. PW2 and PW3 were also not present on the spot, which is proved by their testimony. 14. Learned counsel for the appellants relied on the judgements of this High Court in Criminal Appeal No.1826 of 2003 (Prem and others Vs. State of U.P.) decided on 8.4.2022 and in Criminal Appeal No.429 of 1983 (Ram Subhag and another Vs. State of U.P.) decided on 09.10.2018. 15. Learned AGA opposed the submissions made by learned counsel for the appellants and contended that this is a day light occurrence and there are three eye-witnesses. There is no material contradiction in the evidence of eye-witnesses. Moreover, as per ante mortem injury in post mortem report, there is one gun shot entry wound on the left side of the face of the deceased and exit wound in the right side of the head. Prosecution case is also a case of single fire in the head of the deceased. Hence, ocular evidence is very well corroborated by the medical evidence. Learned AGA further contended that if recovery of weapon is not proved then it cannot be concluded that appellants have not committed murder of the deceased because it is not necessary to find out the weapon in each case. All the three eye-witnesses are resident of neighborhood. Hence, their presence on the spot cannot be doubted. Learned trial court has rightly convicted and sentenced both the appellants. Hence, there is no illegality in the impugned judgement which requires any interference by this Court. 16. Prosecution has set up the case that on the fateful day, both appellants Rajnesh and Vijay Pal went to the house of the deceased Gauri Shankar along with five other accused persons and called him to come out of the house. Firstly, the son of the deceased Gauri Shankar, namely, Rama Shankar came out of the house and all the accused persons started beating him by lathi and danda. On his hue and cry, the deceased Gauri Shankar came out of the house and all the accused persons started beating him and said to kill him. Then and there, appellant Rajnesh caught hold Gauri Shankar and Vijay Pal triggered a fire in his head, due to which Gauri Shankar fell on the ground and died. 17. Prosecution produced three eye-witnesses of the occurrence, namely PW1-Anek Pal, PW2-Rama Shankar and PW3-Raju Singh. Then and there, appellant Rajnesh caught hold Gauri Shankar and Vijay Pal triggered a fire in his head, due to which Gauri Shankar fell on the ground and died. 17. Prosecution produced three eye-witnesses of the occurrence, namely PW1-Anek Pal, PW2-Rama Shankar and PW3-Raju Singh. PW1-Anek Pal is brother of the deceased, PW2 Rama Shankar is son of the deceased and PW3 Raju Singh is nephew of the deceased. Hence, all the three eyewitnesses are related witnesses. Evidence of interested or related witness cannot be disbelieved on the ground that they were interested or related witnesses, but their testimony should be scrutinized with great care and caution. Keeping this proposition of law in mind, we have analyzed the evidence of all the aforesaid three eye-witnesses meticulously. For the sake of analyses of evidence, we put the case in two parts. First part-beating Rama Shankar by seven named accused persons and second part-where appellant-Rajnesh caught hold the deceased and appellant-Vijay Pal fired at his head. As far as first part is concerned, as per prosecution case when Rama Shankar, son of the deceased, came out of his house, all the seven named accused persons started beating him by lathiand danda. This Rama Shankar is produced by prosecution as PW2, he has deposed in his examination-in-chief that when he came out of the house accused persons gave him beating by lathi, dandaand backside of tamancha. He has deposed in his cross-examination that his father (deceased) came out of the house after 20 minutes of his coming out and during this period, accused persons were beating him. But the medical report of Rama Shankar Ext. Ka.7 shows otherwise. In this report there are only three injuries. Injury No.1 is contusion with swelling below left knee joint, injury No.2 is contusion with swelling at right knee joint and injury No.3 is complaint of pain in body. All injuries were simple in nature. Hence, there was just two injuries to Rama Shankar, which were only contusion. There should have been serveral injuries if seven persons beat one person with lathi, dandaand backside of tamancha, that too for a period of 20 minutes or so. It creates doubt with regard to the presence of PW2 Rama Shankar at the place of occurrence. Hence, there was just two injuries to Rama Shankar, which were only contusion. There should have been serveral injuries if seven persons beat one person with lathi, dandaand backside of tamancha, that too for a period of 20 minutes or so. It creates doubt with regard to the presence of PW2 Rama Shankar at the place of occurrence. Now the meticulous analysis of oral testimony of PW2 goes to show that in cross-examination, he has deposed that when he reached at the place of occurrence, Anek Pal and Raju Singh (PW1 and PW3) were present there. It means that PW2 reached to the spot after PW1 Anek Pal and PW1 Anek Pal says that he went to the occurrence after 5 minutes on hearing the sound of fire and before him there were lot of people at the spot and no accused was present there. The presence of PW1 was not believed by the trial court also and it held that PW1 is not the eye-witness and if PW2 Rama Shankar reached to the spot after Anek Pal then he also cannot be held to be the eye-witness. PW2 has categorically stated that he saw Raju, Anek Pal and accused persons but Anek Pal says that he did not see any accused and reached to the spot after 5 minutes of the occurrence. Hence, the presence of PW2 has also become doubtful to the great extent at the place of occurrence. Moreover, PW2 establishes this case as it was case of two fires because he says that there was one empty cartridge lying on the spot but no such empty cartridge is recovered by the I.O. on the spot. Apart from it, if we analyze the testimony of PW2 in the light of medical evidence then also it creates doubt because PW2 has specifically stated that Rajnesh caught hold his father from the right side and appellant Vijay Pal fired from the back side but ante mortem injury No.2 in post mortem report goes to show that it was exit wound in the back side of the head of the deceased. If accused Vijay Pal would have fired from back side then there should have been entry wound in the back side of the head and not the exit wound as mentioned in post mortem report. If accused Vijay Pal would have fired from back side then there should have been entry wound in the back side of the head and not the exit wound as mentioned in post mortem report. Hence, PW2 Rama Shankar is not eye-witness and now there remains testimony of PW3 as eye-witness. At one place in cross-examination, he has deposed that when he reached to the house of deceased Gauri Shankar, no villager was there. He was alone and after that his father Anek Pal (PW1) also reached there. Further he has stated that he and his father Anek Pal (PW1) reached to the place of occurrence simultaneously. He has specifically stated that it was no so that he reached earlier than his father Anek Pal. If it was so then, as discussed above, the presence of PW1 at the place of occurrence has been found false, hence, the presence of PW3 Raju Singh is also very much doubtful and this doubt further gets strength from his statement in further cross-examination where he has deposed that he heard the sound of one fire. At that time, he was talking to his father in his house. It means that when the fire was opened to the deceased, PW3 was sitting in his house with his father and since this is case of one fire, it can safely be held that PW3 is also not the eye-witness and he has not seen the occurrence. 18. This High Court in the cases, relied on by learned counsel for the appellants, namely, Prem and others (supra) and Ram Subhag and another (supra) has held that mere consistency in the testimony of the prosecution witnesses is not the sole test of truth as even falsehood can be given an adroit appearance of truth, so that truth disappears and falsehood comes on the surface. Therefore, what the court has to look at, and assess, is whether the prosecution evidence coupled with the surrounding circumstances has a ring of truth or there arises a strong suspicion and high probability of false implication of the accused put on trial. 19. PW4 Dr. A.P. Gautam had conducted post mortem on the body of the deceased and following ante mortem injuries were found: (i) Fire arm entry wound size 1cm x 1 cm on left side face, 7 cm anterior from tragces of left ear. 19. PW4 Dr. A.P. Gautam had conducted post mortem on the body of the deceased and following ante mortem injuries were found: (i) Fire arm entry wound size 1cm x 1 cm on left side face, 7 cm anterior from tragces of left ear. (ii) Fire arm exit wound size 2.5 cm x 2 cm on right side occipital region of head. 20. Hence, it was a case of one fire only and as discussed above, PW1, PW2 and PW3 are proved not to be the eyewitness of the occurrence and their testimony cannot be relied on, but the learned trial court although mentioned in the judgement the material contradictions in their testimony but based conviction of the appellants mainly on the basis of their statements made in examination-in-chief only. Presence of PW1 at the place of occurrence is not relied upon by the trail court, which is correct finding but presence of PW2 and PW3 is also not proved at the spot. There are several material contradictions in their testimony, denying their presence, which go to root of the matter and shatter the entire prosecution case. Since, the prosecution has produced three eye-witnesses and the presence of all these eye-witnesses is very much doubtful rather it is proved that they were not present at the place of occurrence and have not seen any incident as alleged by prosecution, there emerges strong suspicion and high probability of false implication of the accused-appellants on the basis of enmity between the families of in-laws of deceased and appellant Vijay Pal. False implication of appellant- Rajnesh is also due to enmity. This enmity is explained by PW2. 21. After sifting the evidence as above, we are of the considered opinion that learned trial court has fallen into grave error in believing the testimony of PW2 and PW3 because it is well proved that they were not the as eye-witness. Learned trial court has not taken into consideration that material contradictions in their testimony and these contradictions are so major that they go to the very root of the prosecution case and shatter it. 22. Hence, we are of the considered view that learned trial court did not appreciate the evidence in right perspective and misread it. Appellants-Vijay and Rajnesh are wrongly convicted by trial court under Section 302 r/w Section 34 IPC and Section 323 r/w Section 34 IPC. 22. Hence, we are of the considered view that learned trial court did not appreciate the evidence in right perspective and misread it. Appellants-Vijay and Rajnesh are wrongly convicted by trial court under Section 302 r/w Section 34 IPC and Section 323 r/w Section 34 IPC. Hence, we upturn the finding of learned trial court convicting the appellants and the appeal is liable to be allowed. 23. Accordingly, both the appeals are allowed. 24. Impugned judgement is set aside. Conviction and sentence of both the appellants under Section 302 r/w Section 34 IPC and Section 323 r/w Section 34 IPC is hereby set aside and appellants are acquitted of the aforesaid charges. 25. The accused-appellants be released from jail forthwith if not wanted in any other case. 26. Record and proceedings be sent back to the court below. 27. In Criminal Appeal No. 2819 of 2019 Smt. Abhilasha Singh, Advocate was appointed as Amicus Curiae as learned counsel for the appellant did not appear. She will be paid Rs.15,000/-as remuneration by the High Court Legal Services Committee.